S.H. Sheth, J.
1. The plaintiff has filed the present suit for a declaration that he is the tenant of the defendants in respect of the suit premises and for a permanent injunction to restrain the defendants from interfering with his possession of the suit premises.
2. The facts of the case, briefly stated, are as under. On 7th February 1956 the defendants let out to the plaintiff a shop wherein the plaintiff had been carrying on business since the date of its letting. He quietly and peacefully carried on his business until 28th September 1963. On that day he appears to have closed his shop and gone out for a pilgrimage. On 13th December 1963 the plaintiff returned from his pilgrimage. On his return when he went to his shop he found to his dismay and surprise that his shop and the building of which it was a pare were demolished by the defendants. They had put up a new construction thereon. Actually the construction was in progress. According to the plaintiff on 14th December 1963 he went to the defendants to inquire as to what had happened to his shop and the stock in trade which he had left in his shop before he went for a pilgrimage. According to him, the defendants are said to have given him a consoling reply in as much as they, according to him, assured him of a new shop at the same place and in the same building. Further, according to the plaintiff, on 17th December 1963 the defendants let him into possession of the new shop which the plaintiff has been presently occupying. It appears that between 17th December 1963 and 12th February 1964 when the plaintiff filed the present suit there were some criminal proceedings between the parties. These criminal prosecutions have no significance whatsoever for the purpose of this case except for the purpose of explaining why the plaintiff took about two months' time from 17th December 1963 to 12th February 1964 to institute the present suit. It is not necessary for me to refer to those criminal prosecutions in details because the question of delay or laches has not been argued before me. On 12th February 1964 the plaintiff-tenant, according to him, having found that the defendants had been interfering with his possession of the new shop instituted the present suit for a declaration that he is the tenant of the defendants in respect of the suit premises and for a permanent injunction to restrain them from interfering with his possession.
3. The defendants resisted the suit principally on two grounds. According to them, on 1st October 1963 the plaintiff had surrendered the tenancy and possession of his old shop which the defendants had demolished. Secondly, according to them, on 2nd January 1964 the plaintiff had committed trespass by entering into the new shop which he has been presently occupying. The present suit was instituted in the Court of Small Causes at Ahmedabad which has special jurisdiction under Section 28 of the Bombay Rent Act to entertain and try it. It is needless to say that if Section 28 of the Bombay Rent Act does not govern the present suit, the Court of Small Causes has no jurisdiction to entertain it.
4. After having recorded the evidence and after having considered the contentions raised on behalf of both the sides the learned Trial Judge recorded the finding that the plaintiff had not surrendered the tenancy and possession of his old shop to the defendants. He further recorded the finding that the defendants in demolishing the building of which the old shop of the plaintiff formed part had acted high handedly. On evidence the learned Trial Judge recorded a further finding to the effect that the premises in respect of which the plaintiff seeks the declaration are not original premises and that, therefore, the plaintiff is not entitled to the declaration for which he prays and that the portion on which the original shop stood has remained unbuilt. So far as the entry of the plaintiff into the new shop is concerned, the learned Trial Judge recorded the finding that he had entered into the possession of the new shop without the consent of the defendants and, therefore, unlawfully and unauthorisedly. In that view of the matter the learned Trial Judge dismissed the plaintiff's suit.
5. The plaintiff appealed to the Appellate Bench of the Court of Small Causes at Ahmedabad where the learned Judges confirmed all the findings recorded by the learned Trial Judge and, therefore, confirmed the decree passed by him. In the result, they dismissed the plaintiff's appeal.
6. It is against that appellate decree that the plaintiff has filed this Civil Revision Application under Section 29 of the Bombay Rent Act.
7. Before I deal with the contentions raised by Mr. Desai before me it is necessary to take note of the findings recorded by the Appellate Court on some of the questions of fact contested before it. The first finding recorded by the Courts below is that the defendants demolished the suit premisses and the building of which the suit premises formed part and built new premises right from the foundation. This is a finding of fact and I must accept it as such. The second finding recorded is that the plaintiff had not voluntarily surrendered the tenancy or possession of the suit premises to the defendants. That is also a finding of fact concurrently recorded by both the Courts below and I must accept it as such.
8. It is, however, necessary to analyse the implications which flow from these findings and which have a bearing on what happened during the absence of the plaintiff. Firstly, even though the relationship of landlord and tenant had been subsisting between the defendants and the plaintiff before the plaintiff Went out of the City for a pilgrimage and even though the plaintiff had the right to continue to enjoy the possession of the demised premises the defendants took forcible possession behind his back and demolished the premises. It is needless to say that the defendants' action was high-handed and in defiance of law. They took law into their own hands and unilaterally and at their sweet-will tried to destroy the plaintiff's rights to immovable property rendering the plaintiff helpless. Naturally, therefore, when he returned to the City and saw his premises destroyed he must have looked on helplessly. If the defendants had resorted to a Court of law instead of taking law into their own hands which they did, they might or might not have succeeded in getting possession of the old shop from the plaintiff. It is clear to my mind, therefore, that by demolition of the old premises which the plaintiff had in his possession and in respect of which the plaintiff was the tenant and reconstructing the entire building anew in the absence of the plaintiff without determining his tenancy and without recovering possession from him in the manner provided by law what the defendants did was to resort to their power of wealth in order to defeat the plaintiff's rights to immovable property and also to defeat law. In my opinion, law cannot suffer such a situation with equanimity. Arms of law are and should be long enough to reach any high handed and law defying behaviour of a citizen which leads to the destruction of the rights of another. A similar finding has been recorded by the Courts below when they say that the defendants had acted in a high handed manner and taken advantage of the plaintiff's absence from Ahmedabad and had demolished the premises in his possession.
9. The next finding which is of considerable importance and which is recorded by the Courts below and with which I am unable to agree is that the relationship of landlord and tenant between the defendants and the plaintiff had come to an end because the old premises had been destroyed and then not rebuilt by the defendants. It appears, the Courts below have been of the view that the doctrine of frustration applies to the present case. In my opinion, it does not. The doctrine of frustration does not ordinarily apply to leases and certainly not to cases where a landlord is in grievous wrong and wants to take undue advantage of his own high handed and atrocious act. A reference to Clause (e) of Section 108 of the Transfer of Property Act lends support to the view which I am expressing. It provides as under:
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.
For the purpose of this judgment it is not necessary to refer to the proviso to Clause (e). The aforesaid provisions of Clause (e) of Section 108 make it clear that where, amongst others, the demised premises have been wholly destroyed by an act of God or by an act of State or by any other factor or cause beyond human control the lease between the parties subsists unless the lessee chooses to avoid it. If under the circumstances beyond human control such as those specified in Clause (e) of Section 108 the demised premises are destroyed and yet if the lessee chooses not to avoid the lease it cannot be avoided. In the instant case, the demised premises which were in possession of the plaintiff were not destroyed by any reasons beyond human control but were destroyed by a deliberate and calculated action on the part of the landlords themselves who did so in absence of the plaintiff. That the lease or the relationship of landlord and tenant between the plaintiff and the defendants came to an end on account of the voluntary and wilful destruction of the demised premises in possession of the plaintiff-wilful and deliberate act on the part of the landlords-is something which cannot be accepted. It is a proposition which, in my opinion, is startling. If that proposition is to be accepted, every highhanded and law-defying landlord can drive out his tenant without having resort to law and in a manner in respect of which he cannot probably be called in question later. The finding recorded, therefore, by the Courts below that the relationship of landlord and tenant between the defendants and the plaintiff came to an end on account of the destruction of the demised premises by delibeiate and wilful act of the defendants cannot be accepted. It is, in my opinion, an erroneous finding. I, therefore, set it aside. In my opinion, even after the demised premises in possession of the plaintiff were destroyed the relationship of landlord and tenant between the defendants and the plaintiff continued to exist.
10. The next finding which has been recorded by the Courts below is that the plaintiff had taken forcible possession of the suit shop in respect of which he has filed the present suit. For the reasons which I shall be shortly stating I am unable to accept this finding though it has a colour of finding of fact and purports to be so.
11. Before I proceed further it is necessary to examine the remedy which the defendants had in law if they wanted to demolish the suit premises and wanted to build a new construction upon them. The plaintiff was protected by the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the 'Bombay Rent Act' for the sake of brevity). In cases governed by the Bombay Rent Act where a landlord wants to demolish the old premises and wants to build new premises upon them and where the old premises are in occupation of his tenant, resort is to be had to the provisions of Section 13(1)(hh) of the Bombay Rent Act. The said Clause (hh) provides that notwithstanding anything contained in the said Act but subject to the provisions of Section 15, a landlord shall be entitled to recover possession of any premises if the Court is satisfied that the premises consist of not more than two floors and are reasonably and bona fide required by the landlord for the immediate purpose of demolishing them and such demolition is to be made for the purpose of erecting new building on the premises sought to be demolished. Invoking of the provisions of Clause (hh) will, no doubt, require a landlord to satisfy more than one requirement. Firstly, the premises which he wants to demolish must not consist of more than two floors. If that is the case, then he has got to satisfy the Court that he reasonably and bona fide requires them for the immediate purpose of demolishing them and that such a demolition is to be made by him for the purpose of erecting new building on the premises sought to be demolished. In this case, the defendants circumvented and defied the provisions of Clause (hh) of Sub-section (1) of Section 13 by taking law into their own hands and by having a short circuit of the entire process by their unilateral action. If the defendants had filed against the plaintiff a suit for possession on the ground contained in Clause (hh) of Sub-section (1) of Section 13 the provisions of Sub-section (3A) of Section 13 would have immediately come into force. They would have been required to produce a certificate by the Tribunal as contemplated by Sub-section (3A) and would have been required to give a three-fold undertaking to the Court contemplated by Sub-section (3 A). By their unilateral action of resorting to force the landlords again made a short shrift of the obligations which they would have been otherwise required to fulfil by the provisions of Sub-section (3A). Again assuming that the landlords had filed the suit as contemplated by Section 13(1)(hh) and satisfied the conditions laid down by Sub-section (3 A) of the said section, Section 17A of the Bombay Rent Act would have conferred upon the plaintiff very valuable rights. If the landlords after obtaining the decree had not commenced the work within reasonable time the tenant would have got the right to recover back the possession which he would have handed over under the force of the decree. Even if the landlord had not substantially commenced the work of demolishing the premises the tenant would have been entitled to recover back the possession of his premises. But if the landlord had commenced the work of demolition and reconstruction the tenant would have been entitled under Sections 17B and 17C to give a notice to the landlord to let him into possession of a tenement in the new building on its completion, indeed subject to his readiness and willingness to pay the standard rent in respect of such a tenement. Resort to a Court of law would have, therefore, subjected the defendants to many an obligation and it would have conferred upon the plaintiff valuable and substantial rights of entering into the possession of a tenement in the new premises on the basis of the relationship of landlord and tenant. These are the statutory obligations which the defendants in the instant case flouted and at which they mocked and these are the valuable rights of the plaintiff which they reduced to ransom and upon which they trampled as if they had no obligations to anyone in this wide world. It is clear, in my opinion, therefore, that the acts which the defendants committed of forcibly dispossessing the plaintiff of his premises and of flouting their obligations under Clause (hh) of Sub-section (1) and under Sub-section (3A) of Section 13 are acts which cannot be condoned by law. The statutory rights which the plaintiff had under Sections 17 A, 17B and 17C of the Bombay Rent Act could not also be set and naught and destroyed by any unilateral and high-handed action of the defendants. The plaintiff, therefore, in my opinion, since the relationship of landlord and tenant continued between the defendants and the plaintiff was entitled to the restoration of the status quo and to the peaceful and quiet enjoyment of his rights. Ingeniously, however, in this case the defendants have not constructed any structure upon that particular piece of land on which the old shop premises stood. It may be for any reasons with which, I think, I am not concerned in the present case. What is there for the plaintiff to occupy and how is his right to enjoy his tenancy rights to be restored? Or is it that though the action of the landlords may be in defiance of law and unilateral in character resulting into the unlawful destruction of valuable rights of the plaintiff, the law is helpless? In my opinion, law is not so helpless as has been made out before me. There are many contentions in this behalf which the learned Counsel for the landlords has raised 'before me. I shall deal with them in details hereafter. But I am of the opinion that in a case of this type where it is not possible to restore to the tenant his old premises he is entitled to the restoration of similar, equivalent or corresponding premises belonging to the landlords. That, in my opinion, is the only way in which the arms of law can reach the defendants' high-handed action and an act of grave injustice. The tenant is entitled to be placed in the same position in which he was before he was thrown out of his premises. The plaintiff would have been entitled to a shop in the new building under Section 17C of the Bombay Rent Act if the landlords had not defied law in that behalf but complied with it. If, therefore, the plaintiff entered into possession of the suit premises without the assent of the defendants he, in fact, did so in exercise of his subsisting tenancy rights and pursuant to the lawful relationship of landlord and tenant between the parties viewed in light of his rights under Section 17C of the Bombay Rent Act. In this view of the matter, it is not possible for me to accept the finding of the Courts below that the plaintiff took forcible possession of the new shop. If his legal rights subsisted and if he exercised those rights in respect of similar corresponding or equivalent premises, he did so not by exercise of any physical force but he did so in exercise of his lawful tenancy rights which were destroyed and trampled upon by the landlords in a manner which requires a very strong condemnation.
12. Reliance has been placed by Mr. Desai in this behalf upon the decision in Denman v. Brise reported in (1948) 2 All England Reports 141. It is a decision rendered by the Court of Appeal in England. A few facts of that case may be stated in order to appreciate the principles which the Court of Appeal has laid down. In that case a dwelling house which was let to a tenant was destroyed by enemy action. Thereafter, the landlord erected new premises on the site of the old one. The tenant tried unsuccessfully to get the keys from the landlord who denied him the possession of the premises. Thereafter the landlord served upon the tenant a notice to quit, determining his contractual tenancy with effect from a particular date. The tenant instituted an action against the landlord claiming possession from him. The first proposition laid down by the Court of Appeal in that case is that the contractual tenancy had subsisted throughout because there was no evidence of any abandonment of that tenancy as in the instant case. The tenant there was ready and willing and anxious to occupy as in the present case but the landlord would not let him in possession. While considering that case the question which the learned Judges put to themselves was this : Can a landlord say to his tenant 'You must be excluded from the benefits of the Acts because I wrongfully prevented you getting into the house and putting yourself into a position in which you would be able to claim the protection of the Acts?' The learned Judges answered the question in the negative. They observed that if the landlord can successfully say so it would be a position contrary to one's ideas of justice and equity and they further observed that any Court must have power in circumstances such as those which existed in that case to order that the landlord shall put the tenant back into the position in which he was before the premises were demolished. In that case, the Court of Appeal also held that the doctrine of frustration has ordinarily no application to a case of lease. Lord Justice Somervell, in his concurring but separate judgment, observed, that if the landlord had not prevented the tenant in that case from obtaining the keys of the newly constructed premises the tenant would have been in actual possession at the time when the subsequent notice to quit had expired and could clearly have claimed his rights under the Rent Restrictions Acts. The question which Lord Justice Somervell put to himself was in the following terms : 'Are the rights to be determined as if the tenant had been allowed to exercise his right which the landlord prevented him from exercising, or must the position be treated on the basis that the landlord can take advantage of his own wrong and say : 'He was never in possession or occupation and, therefore, cannot claim the protection of the Acts?' He answered the aforesaid question in the following terms:
The rights of the parties must be determined on the basis that the tenant had been allowed to exercise the right which he plainly had and which the landlord prevented him from exercising.
In that case the destruction of the demised premises was by enemy action-an act beyond human control. All that the landlord in that case had done was not to let the tenant in possession of the premises which he had newly constructed at the site where the destroyed premises stood. If the principles laid down by the Court of Appeal can be invoked in a case where the destruction of the demised premises was on account of an action beyond human control, I think those principles must apply with greater and stronger force to a case where the landlord-as in the instant case-deliberately and willfully destroyed the demised premises in defiance of law and in defiance of the rights of his tenant.
13. The learned Counsel for the landlords has raised a contention before me that the plaintiff in the instant case entered into possession of the destroyed premises under rent-note, Ex. 72 which created a tenancy for less than a year, that is to say, for 11 months and 29 days. It commenced from 7th February 1956 and, according to him, ended on 6th February 1957. It is contended on the basis of this fact that after 6th February 1957 the plaintiff was only a statutory tenant having much less rights than he had as a contractual tenant. This is a new point which has been canvassed by the learned Counsel before me. It was not canvassed before the two Courts below. The plaintiff-tenant in his plaint in terms stated that he had been the lawful tenant of the defendants in respect of the shop premises for about 8 or 9 years-obviously prior to the date of the institution of the suit. The averment made by him, in my opinion, refers to his contractual relationship with the defendants. If the averment which he made in the plaint was not correct, if his contractual tenancy had come to an end and if he had merely been reduced to the position of a statutory tenant with effect from 6th February 1957 the defendants ought to have pleaded accordingly in their written statement. They did not do so. Having not done so, in my opinion, it is not open to them before the Court exercising revisional jurisdiction to raise that contention. Such a question requires investigation into fresh facts. If it was pleaded the facts would have been brought to light, investigation would have been made and a finding would have been recorded. It is true that a mere acceptance of rent from a statutory tenant cannot re-establish the contractual tenancy. But, in my opinion, it is also true that acceptance of rent coupled with the intention of the parties can continue or re-establish the contractual tenancy. In this case, it has been pointed out to me from the evidence that the plaintiff had paid the rent right up to 6th August 1963 shortly whereafter he went out of the City of Ahmedabad for a pilgrimage. Whether that acceptance of rent was from a statutory tenant or whether its acceptance for a long period of 8 or 9 years was coupled with the intention of the parties to continue the tenancy on the same terms and conditions or for re-establishing the contractual tenancy could not be inquired into in the present case in absence of material pleadings by the defendants. It is not open, therefore, in my opinion, to the defendants to raise the question which they have raised before me. However, the learned Counsel has invited my attention to some decisions wherein the position of a statutory tenant has been discussed. In view of the findings which I have recorded it is not strictly necessary for me to refer to those decisions. However, since the question was strenuously argued by the learned Counsel I think I should be fair to him by referring in brief to the arguments which he advanced before me.
14. The first decision to which he referred is in Ganga Dutt Murarka v. Kartik Chandra Das and Ors. : 3SCR813 . The first principle which has been laid down in that case is that in case of a tenant who continues to be in possession of the premises by virtue of statutory protection, acceptance of rent from the tenant by the landlord after the expiration or determination of the contractual tenancy will not afford ground for holding that the landlord has assented to a new contractual tenancy. That is the principle by which I am bound. But, in my opinion, as stated by me hereinabove, if acceptance of rent by the landlord was coupled with the intention of parties to continue or re-establish the contractual tenancy, certainly the contractual tenancy would remain into force. It is a question of fact and, therefore, requires to be pleaded. In this case it has not been done. I may, however, state that in the aforesaid case notice to quit was served upon the tenant and contractual tenancy was determined. On reading the report it appears to me that the tenant continued in possession in that case without a fresh contract of tenancy. In that decision reference has been made with approval to a decision of the Federal Court in Kai Khushroo v. Bai Jerbai . The paragraph which has been quoted in the aforesaid decision from that decision of the Federal Court goes to show that the acceptance of rent by the landlord from his statutory tenant can lead to continuance or re-establishment of contractual tenancy if the landlord by so accepting rent intends to do so. The further question which has a bearing on the proposition relating to statutory tenant and which has been canvassed before me is whether a statutory tenant can forcibly enter into possession and maintain a suit for declaration and injunction. The use of the word 'force' in the proposition stated to me is bound to put a Court of Law on its guard. But in this case, as I have stated above, the plaintiff did not enter into possession of the suit premises forcibly but he did so in exercise of his contractual rights as a lessee. If he exercised those rights, assent of the landlord to it was not necessary.
15. It has also been argued before me that a statutory tenant stands on the same footing as a licensee. Reliance has been placed in that behalf upon the decision of this Court in Glamour Cleaners v. Chandrakant Chhotalal Gandhi and Anr. III G.L.R. 941. Mr. Justice Bhagwati (as he then was) has discussed in that decision the rights which a statutory tenant has. Besides stating that a statutory tenant has no estate or property as a tenant at all but has a purely personal right to retain possession of the premises, he has further stated that he enjoys the status of irrevocability. It is true that a statutory tenant can neither assign nor transfer the premises in his possession but certainly he enjoys the status of irrevocability. He can be removed from his premises only in accordance with law. He is entitled to enjoy the protection which a statute confers upon him. In my opinion, it is beyond dispute that the protection which a statutory tenant enjoys is much more than what a licensee enjoys. A licensee does not enjoy the status of irrevocability which a statutory tenant enjoys. Relying upon that decision, therefore, the proposition that a statutory tenant is on par with a licensee cannot be made good.
16. The next decision upon which reliance has been placed by the learned Counsel for the landlords is that of the Supreme Court in Anand Nivas Private Ltd. v. Anandji Kalyanji's Pedhi and Ors. V G.L.R. 111. Dealing with the rights and position of a statutory tenant it has been laid down that a statutory tenant has no estate or interest in the premises occupied by him and that he has merely the protection of the statute in as much as he cannot be turned out so long as he pays the standard rent and permitted increases, if any, and performs the other conditions of the tenancy. It has been further laid down that his right to remain in possession after the determination of the contractual tenancy is personal and that it is not capable of being transferred or assigned. The devolution of this personal right takes place on the death of the tenant, as laid down therein, only in the manner provided by the statute. Proceeding further, Their Lordships have stated that the right of a lessee from a landlord on the other hand is an estate or interest in the premises and in absence of anything to the contrary contained in the contract it is transferable and that the premises can be sub-let by such a tenant. Unless the tenant after the determination of the lease acquires the right of a tenant holding over. Their Lordships proceed to state further, by acceptance of rent or by assent to his continuing in possession of the premises, the terms and conditions of the lease are extinguished and the rights of such a person remaining in possession are governed by the statute alone. Therefore, Section 12(1) of the Bombay Rent Act merely recognises a tenant's right to remain in possession, the judgment proceeds to state, so long as he pays or is ready and willing to pay the standard rent and permitted increases and performs the other conditions of the tenancy but rot the right to enforce the terms and conditions of the original tenancy after it is determined. Dealing with the proposition that a statutory tenant has no right to sub-let the premises or to transfer or assign the estate or his interest in the premises, it has been further laid down that a lawful sub-tenancy postulates a right to enjoy the property and a right to transfer the same to another and that 'there can be no subletting when there is no right in the premises especially when the statutory tenancy ceases when the tenant parts with the possession.' It is under these circumstances that the Supreme Court held in that case that the statutory tenant is not a tenant at all properly so called.
17. Reliance has also been placed by the learned Counsel for the landlords upon an unreported judgment of Mr. Justice Blagden in Suit No. 788 of 1946 decided on 5th September 1946. Mr. Justice Blagden was dealing with Section 11 of the Rent Restriction Act which was then in force. The learned Judge has laid down that a tenant whose contractual tenancy has been determined is merely protected by the statute so far as his possession is concerned and his position is something very much like that of the holder of a personal licence to remain on the premises, such licence being irrevocable so long as he pays the rent and behaves as a tenant should.
18. As I have stated earlier it is not necessary for me to deal with the question of rights and position of a statutory tenant because in this case I have already held that the contractual relationship of landlord and tenant continued between the defendants and the plaintiff. I have referred, however, in some details to the rights and position of a statutory tenant because arguments have been advanced before me at length on that question. In view of my finding recorded in the foregoing paragraphs, though it is not necessary for me to find out the distinction between a statutory tenant and a licensee I think the assumption made by the learned Counsel for the landlords that a statutory tenant stands on the same footing as the licensee is not correct. In my opinion, he is something more than a licensee and something less than a contractual tenant. A contractual tenancy minus all its incidents except protection of the statute which is granted to a tenant in possession turns into a statutory tenancy. A statutory tenant certainly enjoys his possession of the premises as long as he pays or is ready and willing to pay the rent and also enjoys the protection of the statute. This cannot be said to be true in cases of all licensees. It is upon this basis that the learned Counsel for the landlords has argued before me that the plaintiff is not entitled to a declaration and injunction for which he has prayed. If he is a licensee simpliciter the argument advanced by the learned Counsel indeed has much force. But so far as the plaintiff's relationship with the defendants is concerned, my view is exactly contrary to what has been submitted to me by the learned Counsel.
19. Before granting the declaration and injunction prayed for by the plaintiff, the learned Counsel has submitted to me, a few circumstances I must take into account. The first of such circumstances is that the identity of the suit premises is not the same as that of the demolished premises. He has also invited my attention to paragraph 8 of the lower appellate judgment wherein it has been recorded that no structure has been erected by the defendants at the place where the demised premises stood prior to their demolition by the defendants. He has also invited my attention to the observations made by the lower Appellate Court in its judgment that portion of land upon which the demised premises stood out of the entire piece of land upon which the defendants' building of which the demised premises formed part stood was left open by the defendants after the demolition of the building because that particular piece of land has been falling within the municipal road line. In order to convince me that the identity of the suit premises and the demolished premises is not the same he has also invited my attention to the fact that the area which the plaintiff has now been occupying is greater than the area which the plaintiff formerly occupied. Lastly, he has invited my attention to the issue framed on the contention by the Trial Court. The issue is in the following terms.
Whether the plaintiff is defendants' tenant of the suit premises?
Taking into account all these facts and also taking into account the rights and position of a statutory tenant which, according to him, the plaintiff was after February 1957, he has contended that the prayer for declaration and injunction cannot be granted. In other words, relying upon all these facts the question which he has posed before me is whether a statutory tenant who has forcibly entered into possession can maintain the suit for declaration and injunction, The question which be has posed before me, in my opinion, suffers from a number of infirmities. Firstly, the plaintiff is not a statutory tenant as he has tried to make out before me. Secondly, the so-called forcible entry of the plaintiff into the possession of the new shop merely, in my opinion, means that he entered into possession without the assent of the landlord but that he did so in exercise of his rights under the lease (considered in light of his rights under Section 17C) which had been subsisting. So far as the identity of the premises is concerned, in my opinion, for the reasons which I state below it is not of any material consequence. Even if the landlords had rebuilt the old premises on the same site they would have been different in size, shape, area and construction. The rent of such newly constructed premises also would have been different. Therefore, if by difference in identity it is contended that the premises which the plaintiff occupies now are structurally different from the demolished premises, then that argument has no force because, even if the premises were rebuilt or reconstructed on the same site, under the Bombay Rent Act, the plaintiff would indisputably have been entitled to them. Therefore, the difference in structural identity is of no consequence. The identity in the quantum of rent is also not of much consequence because after having resorted to the procedure provided by law if the landlords had rebuilt the demised premises they would have been entitled to the standard rent thereof commensurate with the cost of structure but subject to the provisions of Section 17C of the Bombay Rent Act. So far as the identity of the premises is concerned, there are only two points of difference which require consideration. The suit premises are not exactly on the same piece of land on which the demolished premises had been standing. The second point of difference which requires consideration is that the area of the new shop is not the same as the area of the demolished shop. If the defendants had built a new structure upon the very piece of land upon which the demolished premises stood, the first question would not have arisen. In my opinion, either on account of the said piece of land falling within the municipal road line or on account of any ingenious reason they have left that piece of land open. Therefore, if the plaintiff's right to enjoy his leasehold rights subsists, as it does, and if after the deliberate and wilful demolition of the demised premises by the landlords no other premises have been constructed on the same piece of land, in my opinion, as I have earlier held, the plaintiff is entitled -to corresponding, equivalent and similar premises belonging to the defendants. So far as the area is concerned, the area of the old shop was 3' x 3' with decreasing length on account of stair-case. The area of the new premises which he has been occupying is 4'-6J' X 5N-10'. Upon inquiry I have been told that there are no premises admeasuring 3N x 3' in the new building which the landlords have put up. In those circumstances, in my opinion, the new premises admeasuring 4'-6A' x 5V-10' are much nearer the area of the old shop which admeasured 3' x 3'. That by itself is, therefore, not of much consequence in the facts of the present case. Since I have recorded two findings, viz., that the relationship of landlord and tenant has been continuing between the defendants and plaintiff and since the plaintiff is entitled to obtain possession from the landlords of corresponding equivalent or similar premises and since he is actually in possession of these premises -for the plaintiff does not require the assent of his landlords to exercise his leasehold rights-I see no infirmity in the suit for declaration and injunction which the plaintiff has filed. 1 am unable, therefore, to accept the contention raised in that behalf by the learned Counsel for the landlords.
20. One more contention which has been raised before me is that the present suit in the Court of Small Causes at Ahmedabad which is a specially constituted Court under the Bombay Rent Act is not maintainable or, in other words, the Court of Small Causes has no jurisdiction to entertain the present suit. In view of my finding that there has been a subsisting relationship of landlord and tenant between the defendants and the plaintiff the suit falls within the ambit of Section 28 of the Bombay Rent Act. The Court of small Causes at Ahmedabad, therefore, which has jurisdiction to entertain and decided all claims falling under Section 28 of the Bombay Rent Act has jurisdiction to try and decide this suit.
21. One more contention which has been raised on behalf of the landlords is that relief of injunction is an equitable relief and it cannot be sought by one who is said to have 'forcibly' entered into possession of the suit premises. Principles of equity, in my opinion, can be invoked by those who come to Court with clean hands. One of the cardinal principles of equity is that one who claims equity must do equity. Having unilaterally, deliberately and wilfully destroyed, to the detriment of the plaintiff, the demised premises and having rendered the plaintiff helpless in the matter it is not open to the defendants in this case to invoke any principle of equity so as to bar the remedy which may be available to the plaintiff.
22. Therefore, in view of the reasons which I have stated in this judgment, the three-fold contention raised by the learned Counsel for the landlords that the plaintiff has no legal rights, that the Court of Small Causes at Ahmedabad has no jurisdiction to entertain the suit and that the action instituted by the plaintiff is not a proper or tenable action, must fail. In that view of the matter, therefore, I must set aside the decrees passed by both the Courts below and pass decree in favour of the plaintiff. Before I do so, I would like to state that so far as the quantum of rent of the premises which are in the occupation of the plaintiff is concerned, it can be determined by the parties either by private negotiations or by instituting proceedings in a competent Court for the fixation of standard rent under the Bombay Rent Act.
23. In the result, I allow this Revision Application, set aside the decrees passed by the Courts below and pass the following decree in favour of the plaintiff. The plaintiff is declared to be the tenant of the defendants in respect of the suit premises and the defendants are hereby restrained from interfering with his possession of the suit premises except in accordance with law. Rule is made absolute with costs throughout.