VIJAY KUMAR AGGARWAL (DECEASED) Vs. ANKUSH SOOD

JUDGEMENT

(1.) By way of this petition filed under Article 227 of the Constitution of India, the petitioners have prayed for the following relief:

(2.) Petitioner No. 2 and predecessor-in-interest of petitioner No. 1 have filed a suit against the respondent herein in the Court of learned Civil Judge (Senior Division), Shimla praying for a decree of permanent perpetual prohibitory injunction against the defendant for restraining him from constructing/reconstructing/restoring or repairing the suit premises known as 'Tara Bhojnalya', The Mall Shimla.

(3.) The case of the petitioners-plaintiffs (hereinafter referred to as 'the plaintiffs') is that they are exclusive owners of the suit property measuring 24′ × 24′ known as 'Tara Bhojnalya' at the Mall Road Level. A room and a toilet measuring approximately 21′ × 8.2′ are situated on the second storey of the aforementioned four storeyed building. The Mall Road Level constitutes the third storey alongwith an attic. The premises were rented out by the plaintiffs to the defendant vide lease agreement dated 01.04.2017. Defendant was running a restaurant in the tenanted premises, which restaurant abuts and is situate on The Mall Road Shimla. On 17th October, 2017, at around 8:15 p.m., a fire broke out in the tenanted premises known as 'Tara Bhojnalya' and the entire tenanted premises were engulfed in a devastating fire and were destroyed. The attic floor was completely burnt and razed. The tenanted premises at the Mall Road Level wherein restaurant was run by the defendant, was destroyed in fire and in effect, the tenanted premises ceased to exist in the manner that the same could constitute to be 'tenanted premises', which could be legally used and occupied by the tenant. According to the plaintiffs, with the destruction of the tenanted premises in fire, defendant ceased to be in possession of the original tenanted premises and he also ceased to have any right over the same as a tenant. His tenancy rights over the suit premises were literally extinguished by the fire. As per the plaintiffs, after destruction of the suit premises in fire, they were again in exclusive possession of the same as also the owners/landlords of the suit property. However, defendant was openly threatening the plaintiffs that he shall interfere in their aforesaid possession of the suit property. Defendant had further threatened to re-construct, restore and repair the premises in question, though he had no legal right to do so. As per the plaintiffs, the right to re-construct, restore or repair the suit premises was exclusively vested in plaintiffs as owners of the suit property and reconstruction/restoration work could not be carried out by anyone much less the defendant. It is primarily on these grounds that the suit has been filed by the plaintiffs against the defendant, which is pending adjudication.