HARI KRISHAN Vs. RAMESH GUPTA

JUDGEMENT

(1.) IN this case, one Loon Karan Dass, Proprietor Darshan Tent House, Fazilka was occupying the ground floor of a double storey building bearing No. 4311 and was using it as a godown. The rent of the said premises was Rs. 525/- per annum. As per the case of the petitioner/plaintiff, who is the son of the said Loon Karan Dass, he along with other heirs was occupying the demised premises as tenants. The roofless wall on the eastern-southern corner of the building fell down on the intervening night of 29/30th August, 1995, resulting into the death of neighbours. Thereafter, the Municipal Council issued a notice under Sections 113 and 114 of the Punjab Municipal Act stating therein that the building became dangerous and required demolition. Thereafter the Municipal Council, Fazilka demolished major portion of the building leaving it in the shape of a heap of bricks and earth.

(2.) THE petitioner/plaintiff filed suit against the respondent-landlord for permanent injunction restraining him from entering upon the demised premises. Along with the said plaint he filed an application under Order 39, Rules 1 and 2 read with Section 151, CPC for interim injunction. The learned Additional Civil Judge (Senior Division), Fazilika by his order dated 6th November, 1996 allowed the application of the petitioner/plaintiff for interim injunction and restrained the defendant/respondent from entering upon the demised premises and from dispossessing the plaintiff forcibly and without due course of law and from removing the goods/articles belonging to the plaintiff lying in the demised premises except by due course of law till the final disposal of the suit. Aggrieved by the aforesaid order dated 6.11.1996, the respondent- landlord filed an appeal which was allowed by the learned Additional District Judge, Ferozepore, vide his order dated 14th October, 1997. The learned Additional District Judge observed that admittedly, there is a heap of bricks and building material lying in the site in dispute and the plaintiff had no right remove the same and further he had no right to raise any construction over the suit property, he could not make use of the same. He, therefore, reversed the order dated 6.11.1996 passed by the learned trial court and dismissed the application of the palintiff/petitioner filed under order 39, Rules 1 and 2 read with Section 151, CPC. The aforesaid order dated 14th October, 1997 has been challenged in the present petition.

(3.) MR . Bata, learned senior counsel appearing on behalf of the respondent, submitted that the demised premises was no more a building and it was practically a vacant plot without walls and such type of condition of property could not be termed as building. He submitted that under Section 2 of the Act, the terms "building" and "rented land" have been separately defined and the relationship of landlord and tenant could subsist only in case the suit premises were rented as land not as building. He further submitted that even as per the case of the plaintiff, the demised premises were being used as a godown and since the building had been demolished, the same was rendered unfit for the purpose for which it was let and as such, the lease, if any, between the petitioner and the respondent-landlord, became void under Section 108(e) of the Transfer of Property Act and further under the doctrine of frustration, the alleged lease was not enforceable. In support of this submission, the learned counsel placed reliance on a Full Bench judgment of this court in the case of Gurdarshan Singh v. Bishan Singh, AIR 1963 Punjab 49. The learned counsel further submitted that the case of V. Kalpakam Amma (supra) was decided by the Kerala High Court on the facts of that case as the definition of building under the provisions of the Act and under the provisions of the Kerala Building (Lease and Rent Control) Act was different. Before dealing with the rival contentions advanced by the learned counsel for the parties, it will be relevant to refer to the definition of 'building' given in the Act which reads as under :-