Nagore Dargha,Nagore,represented by its Managing Trustee,Nagore-611 002 v. M.I.Raheem represented by his Power AgentO.M.M.Ibrahim,No.4, Khadarsha Maraikayar Street,Nagapattinam

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 03.03.2011CORAMTHE HONOURABLE MR.JUSTICE R.S. RAMANATHANS.A.No.1739 of 1997Nagore Dargha,Nagore,represented by its Managing Trustee,Nagore-611 002.... Appellant/DefendantVs.M.I.Raheem represented by his Power AgentO.M.M.Ibrahim,No.4, Khadarsha Maraikayar Street,Nagapattinam.... Respondent/PlaintiffPRAYER: Appeal filed under Section 100 of Civil Procedure Code asagainst the Judgement and Decree dated 0502.1996 made in A.S.No.11 of1995 on the file of the Principal Subordinate Judge, Nagapattinam,preferred against the Judgment and Decree made in O.S.No.109 of 1992,dated 29.04.1993 on the file of the District Munsif Court,Nagapattinam.For Appellant: Mr.Srinath SridevanFor Respondent: Ms.R.T.ShyamalaJUDGMENTThe defendant, who was unsuccessful before the Courts below, isthe appellant. The respondent/plaintiff filed the suit for mandatoryinjunction, directing the appellant to allot Shop No.4 in T.S.No.554/3to the respondent/plaintiff and for other reliefs. 2.The case of the respondent/plaintiff was that the suit propertybelonged to the appellant and one Kaja Mohaideen was the tenant underthe appellant in respect of a portion of the building and in the year1988, he sublet the shop to the respondent and also applied to theappellant herein to recognise the respondent as the tenant and thatwas also accepted by the appellant and the respondent was paying the https://hcservices.ecourts.gov.in/hcservices/ rent from January, 1990, by entering into an agreement and was payingof Rs.29/- per month. Due to the fire, the entire premises wasdestroyed and thereafter, it was agreed between the appellant and therespondent that a new building will be constructed in that place andthe building will be let out to the erstwhile tenants and theappellant also constructed four shops and three shops were given tothe erstwhile tenants and the fourth shops ought to have been given tothe respondent and the appellant did not give that shop to therespondent and therefore, a letter was written on 11.03.1982,requesting the appellant to allot the fourth shops and that wasfollowed by the Advocate notice, dated 30.03.1992 and the appellantreceived the notice and sent a reply stating that the respondent willconsider to give the shop when second phase is constructed and as theappellant had refused to allot the shop No.4 to the respondent afterconstruction of the shop premises the suit was filed for mandatoryinjunction. 3.The appellant contested the suit stating that no such offer wasgiven by the appellant to the respondent to hand over the new shop andafter the building premises was destroyed by fire, no tenancyagreement existed between the parties and therefore, the respondentcannot insist that he must be given one shop portion. It is furtherstated that the respondent was not running a business inside thebuilding and he was running a shop selling lottery tickets outside thebuilding by making a temporary shop on the eastern side of thebuilding and the respondent was never in possession in the portion ofthe building in T.S.No.554/4 and the suit property was already leasedout to one H.P.A.Syed Mohammed Sahib and there was no agreementbetween the parties by which the appellant agreed to give one portionof the newly constructed premises to the respondent and therefore, therespondent cannot insist that he must be given one portion. Both theCourts accepted the case of the respondents and held that it wasagreed by the appellant to hand over one portion after theconstruction of the building and admittedly, one portion is vacant andtherefore, the respondent is entitled to the decree and passed decreein favour of the respondent. Hence, this Second Appeal has been filedby the appellant. 4.At the time of admission, the following substantial questionsof law were framed:"1.When admittedly the defendant appellant institutionis governed under the Scheme Decree framed by this Court inA.S.Nos.279 and 576 of 1948, should Clauses 52 and 53 of thedecree not be complied with in joining the advisory committeeas necessary party to the suit? 2.The failure to join the necessary party is not fatalto the suit? 3.When the building admittedly and completely destroyed https://hcservices.ecourts.gov.in/hcservices/ by fire, can the tenancy will continue, assuming previouslythe tenancy right of the plaintiff remained with thedefendant? 4.Unlss the right of the plaintiff is established canthe plaintiff seek remedy in bare injunction?"5.Mr.Srinath Sridevan, learned counsel for the appellantsubmitted that the suit was filed for mandatory injunction, directingthe appellant to allot Shop No.4 to the respondent and the law ofmandatory injunction are dealt with under Section 39 of the SpecificRelief Act and the mandatory injunction can be granted when there isan obligation on the part of the appellant to do certain acts infavour of the respondent or to prevent a breach of an obligation andto perform certain acts, such an injunction can be granted and in thiscase, there is no obligation to be performed by the appellant and itis the specific case of the respondent that the appellant agreed tohand over one portion of the shop after constructing the building inthe said premises and in that case, the respondent has to enforce theagreement by filing a suit for specific performance and he cannot filea suit for mandatory injunction, directing the appellant to allot theshop. Further, if the contract runs into details, in the absence ofspecification of those details, the contract cannot be enforced andaccording to the learned counsel for the appellant that though therespondent claimed the allotment of one portion in the newlyconstructed building, he has not stated that the terms on which thelease has to be arrived at namely the rent, advance, the period oflease and other conditions and in the absence of such details therespondent is not entitled to the relief of mandatory injunction andrelied upon the Judgment reported in (2010) 8 SCC 1 Vinod Seth v.Devinder Bajaj and another and (2009) 5 MLJ 210 Raja Appar v.M.Gnanasambandam and others and according to him, under Section 14 ofthe Specific Relief Act, when a contract runs into such minutedetails, the same cannot be enforced. He also submitted that evenunder Section 108 (B) (e) of the Transfer of Property Act, if by fire,any material part of the property was wholly destroyed, the leaseshall, at the option of the lessee, be void and therefore, the lesseewas given a right to avoid the lease in case the tenant premises wasdestroyed by fire or by a natural calamity and under that section, noright is conferred on the tenant to insist the landlord to give backthe newly constructed portion to him on lessee and therefore, therespondent tenant cannot insist that he must be given a portion afterconstructing on the site. 6.On the other hand, Ms.R.T.Shyamala, learned counsel for therespondent submitted that Section 108 of the Transfer of Property Actwas interpreted by the Honourable Supreme Court in the Judgmentreported in (2001) 1 SCC 564 Vannattankandy Ibrayi v. KunhabdullaHajee and it has been made clear in the Judgment that Section 108 (B) https://hcservices.ecourts.gov.in/hcservices/ (e) of the Transfer of Property Act has no application to the premisesgoverned by the State Rent Control Act and in this case, admittedlythe premises belong to the appellant which is a religious institutionexempted under the provision of the Tamil Nadu Buildings (Lease andRent Control) Act and therefore, as per Section 108(B)(e) of theTransfer of Property Act, the lease will not be extinguished and thelease will become void only at the option of the lessee on thedestruction of the whole of the premises and the respondent lessee hasnot opted to declare the lease as void and therefore, the leasecontinues and when in the lease continues he is entitled to claim thenew structure. The learned counsel further submitted that admittedly,the respondent was a tenant in a portion of the building before it wasdestroyed by fire and in the same place, four shops were constructedand three of them were let out to the erstwhile three tenants and oneshop remains vacant and even now that is kept vacant and therefore, inequity also the respondent is entitled to claim that premises and inthis case, the appellant also agreed to give one portion to therespondent as evidenced by the reply Ex.A.4 and therefore, consideringall these aspects, the Courts below rightly decreed the suit.7.The learned counsel for the appellant submitted that in Ex.A.4,the appellant has not agreed to give one portion to the respondent andit was only stated that the request of the respondent would beconsidered when second phase is constructed and there is noundertaking given by the appellant nor any promise was given by theappellant to give one portion to the respondent.8.Heard the learned counsel appearing on either side.9.It is not in dispute that the respondent was a tenant under theappellant and the premises in which the respondent was the tenant wasdestroyed by fire and in that place, the appellant had constructedfour shops. It is not also in dispute that three shops were given tothe erstwhile tenants and the appellant did not give a shop to therespondent and therefore, the suit was filed for the relief ofmandatory injunction. It is the specific case of the respondent thatthere was an arrangement between the parties by which the appellantagreed to hand over the newly constructed portion to the erstwhiletenants. Though the respondent has pleaded about the agreementbetween the parties for handing over the shop to the respondent afterreconstruction, Ex.A.2 and Ex.A.3 would disprove the case of therespondent. Ex.A.2 was the letter sent by the respondent and in thatletter, he has stated that he sought the permission of the appellantto construct a building at his cost and it was represented by theappellant that the appellant would construct the building and afterthe construction of the building, the building was not handed over tohim. In Ex.A.3, it was stated that the appellant assured that afterconstructing the new shops, the same would be given to the erstwhiletenants. In Ex.A.2 the earlier letter, there was no mention about the https://hcservices.ecourts.gov.in/hcservices/ undertaking or the agreement by the appellant to hand over thepremises after reconstruction and only in Ex.A.4, it is stated thatthe appellant assured to hand over the new building. In both theletters Ex.A.2 and Ex.A3, the terms of the lease were not mentionedand admittedly, the appellant has not agreed to hand over the premisesto the erstwhile tenants as per the old terms. Therefore, in theabsence of any details about the terms of tenancy, the respondentcannot enforce that agreement. Further, except the statement made inEx.A.3 and in the plaint, there is no proof adduced by the respondentthat the appellant agreed to hand over the new premises to therespondent after reconstruction. As a matter of fact, in Ex.A.4, thereply given by the appellant to Ex.A.3, it has been stated that hisrequest of the respondent would be considered when second phase isconstructed in the suit property. Therefore, the respondent has notproved any arrangement or agreement between the parties by which theappellant agreed to hand over one portion to the respondent. Evenassuming that there was an agreement between the parties by which theappellant agreed to hand over one portion, such agreement can beenforced only in a the suit filed for specific performance and thatcannot be done in a suit filed for mandatory injunction. Further, asstated supra, the parties are silent about the terms of the lease andit is rightly submitted by the learned counsel for the appellant thatthe respondent has not stated anything about the rent, period oflease, advance and the other conditions to be incorporated in thelease and therefore, the contract cannot be enforced which containsvarious details and when there is no evidence about the details of theterms of lease by both the parties, the contract cannot be enforced.Therefore, even assuming that there was an agreement between theparties that the agreement cannot be enforced in a suit for mandatoryinjunction and in the absence of any details about the terms of thecontract the contract cannot be enforced.10.Further, for issuing the mandatory injunction, there must bean obligation to be performed by the other side and that obligationmust be clear and should not be vague. In this case, according to therespondent, the obligation on the part of the appellant was to handover the vacant possession. Admittedly, it is not the case of therespondent that the appellant has agreed to hand over the vacantpossession of the newly constructed portion on the same term as agreedbefore the destruction of the property by fire. Therefore, when therespondent expects the appellant to hand over the newly constructedportion, he must also spell out specifically the terms and conditionsagreed and in the absence of terms and conditions, no obligation iscast upon the appellant to perform his part by handing over hispremises. Therefore, in that event also the respondent is notentitled to the relief of mandatory injunction.11.As per Section 108 (B)(e) of the Transfer of Property Act, inthat event of whole of the leasehold properties is destroyed by fire https://hcservices.ecourts.gov.in/hcservices/ or by natural force, the lease shall be at the option of the lessee bevoid. No doubt in the Judgment reported in (2001) 1 Supreme CourtCases 564, the Honourable Supreme Court held that 108(B)(e) of theTransfer of Property Act has no application in the case of thepremises governed by the State Rent Control Act. In this case,admittedly, the building belongs to the appellant which is religiousinstitution, which is exempted from the provision of Tamil NaduBuildings (Lease and Rent Control) Act and therefore, Section 108 (B)(e) will apply to the lease in question. But, it has been made clearin the above Judgment that the said provision was introduced for thebenefit of the tenants for the reason that after the destruction ofthe building though the lease continues the tenant has to pay therent. Therefore, the provision was introduced giving an option to thetenant to declare the lease agreement as void and avoid payment offurther rent. Therefore, even though the tenancy continues as per theprovisions of Section 108(b)(e), that right was given to the tenant toavoid the transaction, otherwise, he is liable to pay the rent.Therefore, the provision of 108(b)(e) cannot be taken advantage by thetenant to claim that the tenancy continues and he is entitled to theportion. Even assuming that tenancy continues that will not clothethe tenant from claiming the same premises in the absence of anyagreement about the rent, period of lease and other conditions.Unfortunately, both the Courts below did not consider all theseaspects and decreed the suit erroneously. Hence, the Judgment andDecree of the Courts below are set aside. Subsequently, thesubstantial questions of law 3 and 4 are answered in favour of theappellants. 12.The learned counsel for the appellants did not press thesubstantial questions of law 1 and 2 and therefore, they are notanswered. As the substantial questions of law 3 and 4 are in favourof the appellants, the Second Appeal is allowed and the Judgment andDecree of the Courts below are set aside. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrarmps https://hcservices.ecourts.gov.in/hcservices/ To1.The Principal Subordinate Judge, Nagapattinam.2.The District Munsif Court, Nagapattinam.3.The Section Officer,VR Section, High Court,Madras.SAI(CO)km/19.5.S.A.No.1739 of 1997