Yashoda Nandan, J.
1. When this second appeal came up for hearing before a learned single Judge, he felt disinclined to agree with the views of this Court expressed in Dr. Kundan Lal v. Shamshad Ahmad : AIR1966All225 and Rahim Bux v. Mohammad Shafi : AIR1971All16 and consequently referred the following two questions for consideration by a large Bench:
'1. Whether on the facts and the circumstances of the case doctrine of frustration as contained in Section 56 of the Contract Act will apply and whether the tenancy was automatically terminated after the building had fallen down?
2. Whether on the facts and circumstances of the case relationship of landlord and tenant subsists even with regard to newly constructed shops and the plaintiffs can claim possession of the same?'
That is how this appeal which should have been decided by a learned single Judge happens to be before this Bench.
2. The material facts giving rise to this appeal are that admittedly Radhey Kishun alias Chillar, the predecessor-in-interest of the appellants before us, was the tenant of a shop constructed of mud-walls and Khap-rail roofing situate in the town of Azamgarh since 30 years or more before the institution of the suit giving rise to this appeal. The shop was in a state of complete disrepair and consequently the Khaprail roof as also some of the walls fell down. Radhey Kishun consequently on the 10th Oct., 1960 applied under Section 7-E of the U. P. (Temporary) Control of Rent and Eviction Act, 1947, in the court of the learned Munsif City, Azamgarh. On the 18th March, 1961, the learned Munsif inspected the shop that was in the tenancy of Radhey Kishun in the presence of the parties and their counsel. On the 22nd Mar., 1961, he recorded an Inspection Note, the material part of which was to the following effect:--
'It was found that the entire accommodation has fallen down and the first sight view of the Commissioner was correct. On two sides there were no independent walls but the other two walls north and west had fallen down and another wall in the accommodation was for a few cubits standing in a dilapidated condition and thus practically the accommodation has to be reconstructed and more than major repairs were needed meaning that the accommodation has substantially fallen down,'
As a consequence of the inspection made by him, the learned Munsif dismissed the application under Section 7-E of U. P. Act No. 3 of 1947 on the 22nd Mar., 1961 itself. An application under Section 151 of the Code of Civil Procedure was also rejected by the learned Munsif, Radhey Kishun consequently on the 20th Sept., 1961 instituted the suit giving rise to this appeal alleging that the respondent in his capacity as Mutawalli of a Masjid was the landlord of the shop of which he was the tenant on a monthly rent of Rs. 8/-. The shop was of Khaprail and its Chhajan fell down as also some of the walls. The application made by the palintiff under Section 7-E of U. P. Act of 1947 had been dismissed by the learned Munsif. When the plaintiffs application under Section 7-E of U. P. Act No. 3 of 1947 was dismissed, on the night intervening the 19th and 20th Sept., 1961 the defendant with the aid of some accomplices forcibly removed two doors fixed by the plaintiff himself as well as the old wood for Chhajan stored by him. It was averred that the defendant was preventing the plaintiff from using his shop by covering the demised premises with Tripal and threatened to occupy forcibly the site of the shop of which the plaintiff was the tenant. It was prayed that by means of a permanent injunction the defendant be prohibited from interfering with the plaintiff's possession as tenant of the site of the shop and the surviving constructions. An application was also made for an interim order of injunction. Initially the trial court passed an order that status quo be maintained, Ultimately after hearing the parties, the learned Munsif vacated the interim order. The injunction order having, been vacated, the defendant constructed three pucca shops on the site of the old shop of which the plaintiff was the tenant. Thereupon the plaintiff on the 16th Mar., 1962 applied for amendment of the plaint and prayed for possession over the site as also the three new shops constructed by the defendant. The defendant resisted the claim on the allegations that nearly four years ago due to heavy rains, contributed by the wrongful omission of the plaintiff to get repairs done of the shop, it fell down and the tenancy of the plaintiff came to an end. According to the defence, the defendant being in possession of the site of the old shop as Mutwalli had full right to reconstruct it. It was pleaded that tenancy of the plaintiff terminated on the date of the destruction of the shop and with unfair motives the plaintiff had made the application under Section 7-E of U. P. Act No._ 3 of 1947, which was rightly rejected in view of the absence of the accommodation sought to be repaired. The suit was claimed to be barred by time and estoppel and it was pleaded that it was not maintainable. On the pleadings of the parties, the following issues were framed by the trial court:
'1. Whether the plaintiff is lessee of the shop in suit?
2. Whether the tenancy of the plaintiff continues or came to an end?
3. Whether the suit is barred by Sections 42, 54 and 56, Specific Relief Act?
4. Whether the suit is barred by time?
5. To what relief, if any, is the plaintiff entitled?
6. Whether the suit is bad due to nonjoinder of necessary parties?
7. Whether the plaintiff is entitled to possession over the plot in suit?
8. Whether the suit has been undervalued and the court-fee paid is insufficient?'
Issues Nos. 1, 2 and 7 as framed were decided together. It was filed that the shop which was in the tenancy of the plaintiff had met with its 'natural fate and died of its own death.' It was neither the act of God nor any unforeseen event, nor the wrongful act of the lessor which contributed to its rotten condition. Soon after the application under Section 7-E of U. P. Act No. III of 1947 was made, the learned Munsif made a local inspection and he had given a detailed description that the entire accommodation had fallen down and there were no independent walls standing on the site. Under the circumstances if at all any one is to be blamed, it was the plaintiff himself who was occupying the house and, had taken no care for its repairs. The trial court held that 'it is quite possible that the destruction to the accommodation took place any time before 1958 and as such the probable year seems to be 1955-56 as alleged by the defendant, and not the year 1961 as alleged by the plaintiff.' The learned Munsif further held that:--
'It is well-settled law, almost commonly acceptable to all that the tenancy terminates with the accommodation, Where there is no accommodation at all, there can be no tenancy. It would be very hard and also unknown to the established principles of equity, that the lessee be allowed to remain a lessee in perpetuity for all the buildings proposed to be erected over the site of the old accommodation and also over the site of the land of the accommodation itself. I think there is no provision of law under which a lessee is allowed to remain in possession over the site of the land after the demolition of the accommodation, not only this, but it is even against the provisions of law.'
The trial court disbelieved the assertion of the plaintiff that after the shop had fallen down, he continued to be in possession of the site by carrying on his jewellery business under a canopy. The learned Munsif further held that the plea of Section 108(e) of the Transfer of Property Act--hereinafter referred to as the Act---would have been available to the plaintiff if he had continued in possession upto the date of the event But in this particular case the lease as well as the accommodation ceased to exist much before the act which the plaintiff alleged. The learned Munsif referred to the definition of 'accommodation' as given in Section 2 of U. P. Act No. III of 1947 and took the view that when the constructions of which the plaintiff was the tenant fell down, it ceased to be 'accommodation' within the meaning of U. P. Act No. III of 1947 and the tenancy of the plaintiff expired with the accommodation. While decidiag issues Nos. 1, 2 and 7, the learned Munsif concluded that the plaintiff was- not the lessee of the site in suit and his tenancy terminated and he was not entitled to the possession of the shop in dispute, in view of the findings on issues Nos. 1 and 2, the learned Munsif considered it redundant to decide issues Nos. 3 and 4. Issues Nos. 6 and 8 had already been decided by the predecessor of the learned Munsif who dismissed the suit ultimately.
3. The lower appellate court on appeal by the appellants dismissed the appeal and upheld the decree of the trial court. The sole question, according to the learned Additional Civil Judge, was as to whether the plaintiff is still the tenant of the shops in suit and he is entitled to get the same. He observed that 'it is admitted case of the parties that the plaintiff was tenant of the previous shop in suit on behalf of the defendant and that that shop no longer exists now and new shops have been constructed in its place.' It was observed that the plaintiff was not entitled to the benefit of Section 108(e) of the Act since 'the above provisions show that the option of the lessee for rendering a tenancy void arises in case of fire, tempest or flood, or violence of army or a mob or other irresistible force. In the instant case I find that there is no allegation in the plaint at all about such contingency pointed above.' Referring to para 8 of the written statement and the admission made by the defendant, it was held that the premises in question fell down due to excessive rain. In the view of the learned Additional Civil Judge excessive rain does not mean flood within the meaning of Section 108(e) of the Act The court of first appeal went on to hold that the plaintiff himself had contributed towards the factors which led to the falling down of the shop since he had not taken timely steps to get the Kachcha shop repaired. The decision of this Court in Dr. Kundan Lal : AIR1966All225 (supra) was distinguished by the court of first appeal. It was held that the plaintiff was not entitled to the benefit of Section 108(e) of the Act in respect of the newly constructed shops. The court below observed that:--
'There is no allegation of the plaintiff that he was tenant of the site also and naturally after falling down of the previous shops in question the tenancy of the plain-tiff automatically came to an end'
In the view of the court of first appeal, the plaintiff could not claim tenancy in respect of the new shops in question constructed in the year 1961-62.
4. Aggrieved by the decree of the court below, the appellants, who are the heirs and legal representatives of Radhey Kishun, appealed to this Court.
5. When the appeal came up for hearing, learned counsel for the appellants placed reliance on Section 108(e) of the Act in support of his contention that the plaintiff-appellants continued to be the tenants of the site of the old shop and the newly constructed shops thereon since they have not exercised the option of surrendering their tenancy and it was urged that, therefore, the relationship of landlord and tenant between the respondent and the appellants continued not only in respect of the site of the shop that originally stood but also the newly constructed shops. In support of the contention, reliance was placed on a single Judge decision of this Court in D. Kundan Lal v. Shamshad Ahmad : AIR1966All225 (supra).
6. Learned counsel for the respondent, on the other hand, contended that the case was not covered by Section 108(e) of the Act since the building fell down on account of rains and natural decay. He based his arguments mainly on Section 56 of the Contract Act and urged that the contract of tenancy had become impossible of performance and as such became void after the building had fallen down. He contended that the lease stood automatically terminated when the structure ceased to exist and the corpus of the lease disappeared. According to the learned counsel for the respondent, Section 108(e) of the Act has no application to a case in which the building has fallen down due to natural causes. The learned single Judge was inclined to agree with this contention, but was prevented from doing so in view of the decision of this Court in Rahim Bux v. Mohammad Shafi : AIR1971All16 (supra) in which it was held that Section 56 of the Contract Act cannot apply to a lease which is a contract creating an estate in land. In these circumstances, the two questions quoted in an earlier part were referred for the opinion of a larger Bench.
7. We have heard learned counsel for the appellants as also learned counsel for the respondent. As far as Question No. 1 referred to this Bench is concerned, it need not detain us for long because the matter is covered by the decision of the Supreme Court in Dhruv Dev Chand v. Harmohinder Singh : 3SCR339 , The material facts giving rise to the appeal before the Supreme Court were that the appellant had obtained from the Court of Wards, Dada Siba Estate, a lease of five squares of land in Tahsil Okara, District Montgomery in the undivided Punjab for the Kharif season 1947 and Rabi season 1948. Following the partition of India in July 1947 and allotment of the territory in which the lands were situate to Pakistan, the appellant migrated to India. An action commenced by the appellant against the Court of Wards in the Court of the Subordinate Judge, Kangra, at Dharamshala for a decree for refund of the rent paid by him was decreed. On appeal, the High Court of Punjab reversed the decree, holding that the doctrine of frustration of contract did not apply to lease of immovable property and that in any event on the facts proved there was no case of frustration established by the appellant. Upon a certificate granted by the High Court, an appeal was preferred by the appellant before the Supreme Court. The appellant had claimed a decree for refund of the rent on the ground that the consideration for the lease failed, because the covenants of the lease had become impossible of performance as a result of communal riots in the District of Montgomery and the inability of non-muslims to continue to reside in that area. The High Court had rejected the contention. The Supreme Court held, relying upon the decision of the same Court in Satyabrata Ghose v. Mugneeram Bangur and Co. : AIR1954SC44 , that the rate in Section 56 of the Contract Act exhaustively deals with the doctrine of frustration of contracts, and it cannot be extended by analogies borrowed from the English common law. Repelling the contention of the appellant on Section 56 of the Contract Act, it was held that:--
'We are unable to agree with counsel for the appellant in the present case that the relation between the appellant and the respondents vested in a contract. It is true that the Court of Wards had accepted the tender of the appellant and had granted tim a lease on agreed terms of lands of Dada Siba Estate. But the rights of the parties did not after the lease was granted rest in contract. By Section 4 of the Transfer of Property Act the chapters and sections of the Transfer of Property Act which relate to contracts are to be taken as part of the Indian Contract Act, 1872. That section however does not enact and cannot be read as enacting that the provisions of the Contract Act are to be read into the Transfer of Property Act. There is a clear distinction between a completed conveyance and an executory contract, and events which discharge a contract do not invalidate a concluded transfer.'
The Supreme Court went on to hold that:--
'Under a lease of land there is a transfer of right to enjoy that land. If any material part of the property be wholly destroyed or rendered substantially and permanently unfit for the purpose for which it was let out, because of fire, tempest, flood, violence of an army or a mob, or other irresistible force, the lease may at the option of the lessee, be avoided. This rule is incorporated in Section 108(e) of the Transfer of Property Act and applies to leases of land, to which the Transfer of Property Act applies, and the principle thereof to agricultural leases and to leases in areas where' the Transfer of Property Act is not extended. Where the property leased is not destroyed or substantially and permanently unfit the lessee cannot avoid the lease because he does not or is unable to use the land for purposes for which it is let to him.'
These observations on Section 108(e) of the Act were made because according to the appellant's own case, the property of which he was the tenant had not been destroyed in any fashion but he had been merely prevented from suing, it because he had to leave that part of Punjab where the property existed on account of the communal riots and the partition of that estate as it existed at the time of the lease. This decision leaves no room for the application of Section 56 of the Contract Act to a lease which is transfer of an interest in the property.
8. Similar was the view expressed in Smt. Sushila Devi v. Hari Singh : AIR1971SC1756 and H. V. Rajan v. C. N. Gopal : AIR1975SC261 .
9. As far as the second question is concerned, we are of the opinion that on the facts and circumstances of the case, the applicants did not become by reason of Section 108(e) of the Act lessees of the new constructions made by the landlord after the plaintiff's failure to obtain an order of injunction from the trial court The relevant part of Section 108(e) of the Act is in the following terms:--
'108. In the absence of a contract or local usage to the contrary, the lessor and the lessee of immoveable property, as against one another, respectively, possess the rights and are subject to the liabilities mentioned in the rules next following, or such of them as are applicable to the property leased:--
(e) If by fire, tempest or flood, or violence of an army or of a mob, or other irresistible force, any material part of the property be wholly destroyed or rendered substantially and permanently unfit for the purposes for which it was let, the lease shall, at the option of the lessee, be void.:Provided what, if the injury be occasioned by the wrongful act or default of the lessee, he shall not be entitled to avail himself of the benefit of this provision.'
10. We shall assume for the purposes of this case that the shop of which the plain-tiff was initially the tenant was destroyed by an irresistible force within the meaning of Section 108(e) of the Act. Though it has been found by the lower appellate Court that there is no evidence on the record to show that the plaintiff was also the tenant of the site of the old shop, we shall assume for the purposes of this case that not only the building standing thereon but also its site had been leased out, Section 108(e) merely enacts that if on account (sic) part of the property leased be wholly destroyed or rendered substantially and permanently unfit for the purposes for which it was let, the lease shall at the option of the lessee be void. The clear language of the provision leaves no room for doubt that if any part of the property is wholly destroyed or rendered substantially and permanently unfit for the purposes for which it was let, it is the lessee who is free to decide whether to continue the lease or not. The lease will not automatically be rendered void. Of course the lessor in such an event unless there is any impediment placed on his right by any legislation is at liberty to determine the lease in one of the fashions provided for by the Act but otherwise unless the lessee chooses to abandon his tenancy or surrender it in one of the manners contemplated by law, he can retain his right to continue as a lessee of the demised premises in spite of the damage to or destruction of the leased property substantially. The principle enacted in Section 106(e) of the Act is based on sound equitable principles. The lessee has obtained the property leased on payment of a particular rent As a result of destruction of a material or substantial part of the premises demised, it is he to whom the usefulness of the property is lessened. If he chooses to continue to pay the rent agreed upon, the lessor cannot have any grievance. In the present case, as stated earlier, we are proceeding on the assumption that not only the shop that originally existed but the site thereof had also been let out to the plaintiff. Though the shop was destroyed on account of one of the reasons mentioned in Section 108(e) of the Act, the site of the shop which had also been leased out to him continued to exist and unless the plaintiff chooses to put an end to the lease, he continued to be the lessee thereof and remained entitled to continue in possession on payment of the rent agreed upon. The plaintiff did not stand to lose anything by such an arrangement.
11. The situation in the present case is, however, different. After the constructions initially let out to the plaintiff were destroyed on account of their dilapidated condition and unusual rain, the defendant at considerable cost put up three pucca constructions. A lease has its basis in a contract. Section 108(e) of the Act does not provide that if the property originally leased is destroyed on account of one of the factors mentioned therein and a now construction comes into existence, the lessee becomes automatically the lessee of the new constructions. He cannot become such a lessee either on account of any contract or by operation of law. The view that on the rent originally fixed for the Kuchcha shop the lessee automatically became the lessee entitled to possession of the new shops is neither justified by law nor by equity. Considerations might be different if the lessor himself had been responsible for destroying the shop because in such an event the principle might be applicable that a person cannot take advantage of his own wrongs but that is not the situation here; the concurrent findings of the court below being that the shop in question had fallen down because of lack of repairs of the constructions which were in a dilapidated stage followed by excessive rains. The decisions, relied upon by the learned counsel for the appellants on the basis of Section 108(e) of the Act are, in our opinion, clearly distinguishable.
12. The facts giving rise to the decision in Sita Ram v. Aryamuni (1965 All LJ 689) were that the appeal, which was decided on the 6th May, 1965, was one by the defendant arising out of a suit for his ejectment from the land shown in the sketch map by demolition of the constructions raised thereon by the defendant, for an injunction restraining him from interfering with the plaintiff's possession over the land in future and for recovery of Rs. 300/- as the value of the plaintiffs' bricks used by the defendant in raising new constructions on the land. The relevant facts were that the plaintiffs were the owners of the land in suit by virtue of a sale-deed dated 29th July, 1959. The land in suit was in the shape of an Ahata, and it contained five rooms, a kitchen and a latrine. The defendant had been let in occupation of this accommodation as a tenant on payment of Rs. 6/- per month by the plaintiffs' vendors. In September 1953 the State Government acquired the Ahata under the Land Acquisition Act. After acquiring the Ahata in dispute, the State Government got the entire constructions of the Ahata demolished and its Malwa sold in the beginning of 1954, with the result that the Ahata became vacant land, The Plaintiffs' vendors filed a writ petition in this Court challenging the validity of the acquisition of the Ahata by the State Government and this Court by an order dated 11th December, 1956 allowed the writ petition and quashed the order of acquisition. After the decision of this Court the State released the land by a notification dated 22nd June 1957 and delivered possession thereof to the defendant. Thereupon the vendors of the plaintiffs claimed to have determined the lease by serving upon the defendant notice dated 19th July, 1957, Having determined the tenancy of the defendant the vendors of the plaintiffs transferred the suit premises in favour of the plaintiffs. Having purchased the premises in question the plaintiffs filed the suit giving rise to the appeal for the reliefs already mentioned and claimed ejectment of the appellant on the ground that on account of demolition of the constructions by the State the doctrine of frustration applied to the defendants' tenancy of the Ahata which came to an end and could not be revived by the act of the State in redelivering possession of the vacant land to the defendant, that in any case the tenancy having been determined by a valid notice the defendant was liable to ejectment. Other grounds were also taken which are unnecessary to mention here. The plaintiffs' suit was contested by the defendant inter alia on the ground that his tenancy was revived on the release of the had by the State, that he had the permission of the original lessors to raise constructions in the Ahata and the constructions on the land after the release by the State did not amount to material alterations and additions to the premises originally let but to him. According to the defence, die State had not demolished the entire constructions of the Ahata and the defendant had got possession over a partly demolished Kotha. The defendant disputed the validity of the notice served on him, determining the lease. The learned Civil Judge, who tried the case, found that after the acquisition of the land by the State the entire constructions that stood thereon had been demolished and the Ahata reduced to the shape of an open land, that the doctrine of frustration did not apply to the case, that the defendant's tenancy revived on the release of the land by the State and that the defendant's tenancy had been valid-ly terminated by the notice dated 19th July, 1957. The trial court further found that the defendant had made constructions in the Ahata without the permission of the original lessors and had made material alterations and additions in the premises and that he had sub-let a portion of the premises, hence he was liable to ejectment. On appeal, the lower appellate court affirmed the decision of the trial court on all the points, except on the question of frustration. It disagreed with the trial court on this question and held that the doctrine of frustration applied to the facts of the case, with the result that the defendant could not re-enter on the site of the Ahata when no part of the constructions let out to him stood on it. In consequence of the findings recorded, the appeal was dismissed. The defendant appealed to this Court. One of the points which arose for decision before the learned single Judge was whether the doctrine of frustration would apply to defendant's lease in the circumstances of the case. After discussing a number of decisions on the scope of Section 108(e) of the Act, the learned Judge found that by the acquisition of the property in question by the State Government and the complete destruction of the constructions thereon since the defendant had not exercised his option for determining the lease in his favour his tenancy rights did not come to an end. The facts of this case are, in our opinion, clearly distinguishable. It was a case where the site of the property leased continued to remain and in view of Section 108(e) of the Act since the lessee chose not to exercise his option of giving up his tenancy, he continued to remain a tenant thereof because the site which was part of the lease continued to exist. This, however, was a case in which no fresh constructions had been built by the lessor and no claim was made by the lessee that by virtue of Section 108(e) of the Act he had acquired, lessee rights in respect of any such property.
13. Similarly, in our opinion, the decision of Jag Mohan Lal, if, in Rahim Bux v. Mohd. Shafi : AIR1971All16 also is inapplicable to the facts of the case. The second appeal before the learned Judge was by the defendants and was directed against the judgment and decree passed by the lower appellate court under which the claim of the plaintiff in respect of a shop situated in the town of Lucknow for possession and injunction had been decreed, though the same had been dismissed by the trial court. The facts of the case as found by the courts below were that the plaintiff respondent was a tenant of the shop which was a part of a big building owned by the defendants 1 to 3. The entire building including the shop in dispute was demolished by the landlords on the 4th April, 1958 in pursuance of a notice issued to them by the Municipal Board, Lucknow, under Section 265 (1) of the U; P. Municipalities Act. On the 17th April 1958 the plaintiff-respondent instituted the suit giving rise to the appeal for injunction restraining the landlords from interfering with his possession over the said premises, offering at the same time to pay rent for these premises even in the condition in which they existed then and in the alternative praying for a decree for possession. During the pendency of the suit the landlords were injuncted by the trial court from making any constructions on this land but subsequently this injunction was modified and the landlords were permitted to rebuild on the land at the site of the shop initially let to the defendant at their own risk. The trial court found that since the shop which had been let out to the plaintiff respondent was no more in existence, his tenancy rights had come to an end and he was not entitled to retain possession over the site of the shop. The lower appellate court did not agree with this view. According to that court, the plaintiff was entitled to continue in possession of the premises so long as his tenancy was not determined according to one of the modes prescribed by law. In consequence of the view taken by the court below, the plaintiff's suit for possession and injunction was decreed. On behalf of the defendant in the second appeal, it was contended that after the shop had been demolished the lease became void under the provisions of Section 108(e) of the Act. The learned Judge did not find the contention acceptable, He held that:--
'In the first place the demolition of a building by the landlord, even though in pursuance of a notice under Section 263 (1) of the U. P. Municipalities Act, cannot be said to be a destruction of the premises by an irresistible force within the meaning of the said clause of Section 108. In the second place the option to avoid the lease under this clause rests with the tenant and not with the landlord.'
We find it difficult to accept the conclusion arrived at by the learned single Judge that the destruction of the construction in question by the landlord compelled as he was to do so in pursuance of the notice under Section 263 (1) of the U. P. Municipalities Act did not constitute one of the reasons contemplated by Section 108(e) of the Act. We, however, agree that if Section 108(e) of the Act was attracted the lease did not fail automatically in the absence of option to avoid the lease not having been exercised by the tenant. It is worthy of note that according to the report though injunction had been granted against the landlord from making any construction on the site in dispute, he got the injunction vacated on the specific undertaking that he would be constructing it at his own risk which necessarily implied that in the event of the claim of the plaintiff being decreed, he would be prepared to deliver possession of the reconstructed building to the plaintiff. In the present case no such consideration arises.
14. Before concluding we might notice a judgment rendered by Denning, J. in Simper v. Coombs, 1948 (1) AH ER 306. Their relevant facts as they appear from the decision as reported were that early in 194.1 the tenant, Mrs. Simper, was bombed out of a house near Victoria Docks, London. She (lien took the tenancy of 47, Danson Lane, Welling, from 10, 1941, on rent of 25 s. a week, and she paid it regularly until July 15, 1944. The house was then struck by a flying bomb and was practically demolished, and in an injured state Mrs. Simper was taken to a rest centre and later to the North of England where she was under medical treatment, She eventually returned to Welling and was accommodated in a requisitioned house. Throughout this period she paid no rent for the house in Dancon Lane, being exempted from doing so by Section 1 (2) of the Landlord and Tenant (War Damage) (Amendment) Act, 1941. She hoped, however, to resume her tenancy of the house, which the landlord had begun rebuilding in 1945, but she did not succeed in doing so because as soon as if was rebuilt, on April, 18, 1946 the landlord himself occupied it. The tenant brought an action claiming that her weekly tenancy had never been determined and that she was still the tenant of the premises. It was held that:--
'The position at common law is plain. She had a contractual tenancy, and that tenancy has never been determined by due notice to quit. It, therefore, continues in existence. The destruction of the house by a bomb did not determine the tenancy. It is well settled that the destruction of a house does not by itself determine the tenancy of the land on which it stands. That was realised at the beginning of the recent war, and so in the Landlord and Tenant war, and so in the Landlord and Tenant (War Damage) Act, 1939, there was a number of elaborate provisions dealing with the position when houses were damaged by enemy action, and an elaborate system was prescribed by the Act whereby a tenant could give a notice of disclaimer, which if, accepted, would mean the surrender of the lease disclaimed, or a notice of retention. If he gave a notice of retention, there was no rent payable while the house remained unfit for occupation, but he still remained tenant. He retained the land. The Act of 1939 did not work very well in regard to short tenancies because tenants of houses let at weekly rents knew nothing about notices of disclaimer or notices of retention, so the legislature intervened on their behalf and, by the Landlord and Tenant (War Damage) (Amendment) Act, 1941, Section 1 (2) and (8), in effect treated tenants on short tenancies as having given notice of retention. Those sub-sections provide that no rent is payable in respect of a period during which the house is unfit for occupation and unoccupied and that a proportionate renl is payable if the house is partly fit for habitation and that part is occupied by the tenant. I am quite satisfied that the Act does not determine the tenancy. No doubt, the landlord still has the contractual right' to determine the tenancy, but the only power given by the Act to determine short tetiancies is that conferred by Section 1 (16), which does not apply in this case.
The result is that there has been nothing at common law to determine the tenancy. There has been no notice to quit. The destruction of the premises is not sufficient, and the Landlord and Tenant (War Damage) (Amendment) Act, 1941, does not determine the tenancy. The tenancy, therefore remains in being. The fact that a new house has been erected on the site does not make any alteration to the legal position. The cost of the new house has been borne for all practical, purposes by the War Damage Commission. It has not fallen on the landlord. That house is substantially the same as the old one. It is annexed to and part of the land which was let under the tenancy and, therefore, it is now included in the tenancy which has never been determined.'
This decision, in our opinion, is of no persuasive value as far as our own law is concerned, Unlike the position obtaining in England, if the premises demised is wholly or partly damaged on account of irresistible force provided for in Section 108(e) of the Act, the tenant is not entitled to any abatement or cessation of the contractual rent whether he continues to occupy it or not. Simper v. Coombs dealt with a case where the house destroyed by enemy action had been rebuilt by the landlord but at the expense of the War Damage Commission. Equities such as existed in Simper v. Coombs (supra) do not exist in the instant case. Here the Kuchcha shop which fell down on account of disrepair and excessive rains were replaced by three masonary shops. It would be wholly inequitable and unjust to grant a decree in favour of the tenant of the reconstructed shops on the alleged contractual rent.
15. It might be conceded that the destruction of the old shop did not in the absence of exercise of the option available to the appellants bring about an end of their tenancy rights in respect of the site and they would have been entitled to a decree for possession thereof but they could not claim tenancy rights over the new constructions. To some extent they are responsible for the failure of their suit by omitting to move the higher courts against the order vacating the interim order. Equities could in such a case have been balanced by award of damages to the appellants. In any case on the concurrent findings recorded by the courts below that the destruction of the shop was brought about by excessive rain because of the plaintiff's negligence to get the same repaired in time, the proviso to Section 108(e) of the Act, is, in our judgment, clearly attracted.
16. For the reasons given, our answers to both the questions are in the negative. Our opinion will be placed before Hon'ble K. N. Kapoor, J. at an early date for decision of the appeal on merits.