MEGACITY VINIYOG PVT LTD Vs. HEILGERS PVT

JUDGEMENT

(1.) THE admitted facts would reveal, respondent no.1 is a tenant in respect of 4, Netaji Subhas Road, Calcutta belonging to the appellant who got the property from the respondent no.2. The property was completely gutted by fire that compelled the respondent no.1 to leave the premises. The appellant reconstructed the building. Question would remain as to whether the parties' fate, ipso facto, determined the tenancy or the relationship does exist that would deserve equivalent space in the newly constructed building for the respondent no.1. The learned Judge decreed the suit in favour of the respondent no.1 to the following extent: -

(2.) MR . Samit Talukdar, learned Senior counsel appearing for the petitioner duly assisted by Ms. Hasnuhana Chakraborty, learned counsel would rely upon the Apex Court decision in the case of Vannattankandy Ibrayi versus Kunhabdulla Hajee, 2001 1 SCC 564. Mr. Talukdar would contend, in view of the fire, agreement got frustrated and the parties do not have any relation that would compel the appellant to provide space in the new building to the respondent no.1. Per contra, Mr. Malay Kumar Basu, learned Senior Counsel appearing for the respondent no.1 would contend, the premises being gutted by fire, was beyond the control of the respondent no.1, once the building was reconstructed, he would be entitled to the equivalent space that he was occupying earlier in the old building. In the case of Vannattankandy Ibrayi , a shop owner was occupying the open land after the fire completely destroyed the structure lying thereat that would include his shop. The landlord filed eviction suit. The Apex Court held, the eviction suit was not maintainable, as the tenancy did not subsist. However, the landlord would be entitled to file a civil suit for recovery of possession of the land in question and the civil court would be competent to entertain and try the suit. In the said decision, the appellant highlighted Section 11 of the State Rent Act as to whether the provision would empower the landlord to evict the tenant on the ground of destruction of the building. In the instant case, the tenant did not occupy the land in question even after the destruction. However, the tenant continued to perform its obligation by tendering rent that they would deposit with the Rent Controller. Once building is rebuilt, the tenant must get equivalent space in the new building. The learned Judge, however, passed a decree of perpetual injunction which in our view, should be modified to the extent that the appellant would be free to deal with the property after giving respondent no.1 equivalent space and to that extent, appeal should succeed.

(3.) THE appeal, thus, succeeds -in -part and is allowed to the extent as above. The judgement and decree impugned would stand modified accordingly.