1. The defendants are the appellants. They are the tenants of a building under the respondents. The subject-matter of the lease, the building was gutted in a fire. It appears that the appellants, the tenants, attempted to rebuild the building on their own and this resulted in the respondents-landlords filing the present suit for a permanent injunction restraining the appellants - tenants of the building from putting up any construction on their own in the land on which the demised building stood. The appellants resisted the suit by contending that they have got a right to reconstruct the building that was destroyed. This defence has been found to be unacceptable by the courts below and the suit for injunction has been decreed restraining the appellants from putting up any construction in the property where the original building stood. The appellants have come up with this Second Appeal challenging the said decree. The substantial question of law that is sought to be raised in the Second Appeal is as to whether a tenant of a building could be restrained from putting up a fresh building in the land on which the subject-matter of the origin lease stood and which had been destroyed by fire.
2. The learned counsel for the appellants rested his arguments court following a decision of this court reported in George v. Peter on the plank of the finding by the lower appellate (1990 (2) K.L.T 187) to the effect that the destruction of the subject matter of the lease namely the building does not by itself bring about a termination of the tenancy is the eye of law and that it is not open to the landlord to ro-enter the land on which the building stood without evicting the tenant from the said land. This finding though is in favour of the appellants. I have considerable hesitation in accepting that finding as correct in the light of the decision of a Division Bench of this court reported in Dr. V. Sidharthan… v. Pattiori Ramadasan…. (1984 K.L.T 538).
3. The Division Bench following the decision of the Calcutta High Court had clearly laid down that the tenancy comes to an end when the subject-matter of, the lease namely the building is destroyed. The Division Bench after noticing Section 108(e) of the Transfer of Property Act had observed:
“This clause only provides that in the circumstances detailed therein the lease shall be void at the option of the lessee. The reason behind this option appears to be, if the leasehold is destroyed or rendered unfit for the purpose of the lease it would be pointless for the lessee to pay the rent but if he chose, he could continue to pay it. This clause is one of the clauses dealing with the rights and liabilities of the lessee and does not describe the effect of the destruction of the subject of the leas upon the lease itself”.
4. Thereafter the Division Bench noticed the various decisions referred to therein and came to the conclusion that if there is a total destruction of the building the lease was extinguished since a demise must have a subject-matter and if it is destroyed the lease comes to an end. I consider that this Division Bench decision is binding on me and therefore it is not possible to agree with the finding of the lower appellate court that the lease itself has not come to an end. But since the finding on this aspect is in favour of the appellants, I do not want to rest my decision in this case on that aspect.
5. The question that arises for consideration assuming that the and on which the building stood is continued to be held by the appellants as tenants of the building is as to whether the tenants are entitled to construct a new building in the site where the subject-matter of the demise in their favour originally stood, without the consent or against the volition of the landlord. The relevant clauses of Section 108 of the Transfer of Property Act to be noticed in this connection are Section 108(e), (f) and (m) Clausse (f) and (m) read as follows:
“108. Rights and liabilities of lessor and lessee. 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:
(A) Rights and Liabilities of the Lessor
…………………………………………………………
(B) Rights and Liabilities of the Lessee
(e) if by fire, tempest or flood, or violence of any army or of a mob, or other irresistible force, any material part of the property be wholly destroyed or rendered substantially and permanently unit for the purposes for which it was let, the lease shall, at the option of the lessee, be void:
Provided that, 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;
(f) if the lessor neglects to make, within a reasonable time after notice, any repairs which he is bound to make to the property, the lessee may make the same himself, and deduct the expense of such repairs with interest from the rent, or otherwise recover it from the lessor:
…………………………………………………………….
(m) the lessee is bound to keep, and on the termination of the lease to restore, the property in as good condition as it was in at the time when he was put in possession, subject only to the changes caused by reasonable wear and tear or irresistible force, and to allow the lessor and his agents, at all reasonable times during the term, to enter upon the property and inspect the condition thereof give or leave notice of any defect in such condition; and, when such defect has been caused by any act or default on the part of the lessee, his servants, or agents he is bound to make it good within three months after such notice has been given or left:
6. As noticed by this Division Bench decision referred to earlier, Section 108(e) of the Transfer of Property Act does not create any right in the lessee to deal with the property. It only enables him to avoid the leased Section 108(f) refers to repairs to the subject - matter of the lease which a lessor is bound to make and if after notice the lessor fails to effect the repairs it enables the lessee to make the repairs himself and to deduct the expense of such repairs from the rent or to otherwise recover it from the landlord. Section 108(m) casts an obligation on the tenant to keep the property in good condition and his obligation to return it in the same condition in which he received it when it was let out to him. It is not possible to postulate that Section 108(f) of the Act enables a lessee to put up a new building in the place of the old or that Sec. 108(m) obliges him to reconstruct and deliver a building to the landlord at the time of surrender when the building is destroyed by causes beyond his control.
7. What is the content of the right to repair contained in Sec. 108(f) of the Transfer of Property Act and the obligation to restore the property in the same condition contained in Sec. 108(m) of that Act? It appears to me that the meaning of the expression ‘repairs’ cannot be extended to indicate an obligation or a right to reconstruct. As observed by Lord Esher MR in Lister v. Lane and Nesham (1893) 2 QB 212.
“…However large the words of the covenant may be, a covenant to repair a house is not a covenant to give a different thing from that which the tenant took when he entered into the covenant. He has to repair that thing which he took; he is not obliged to make a new and different thing, and, moreover, the result of the nature and condition of the house itself, the result of time upon that stage of things, ts not a breach of the covenant to repair”.
and by Buckley L.J in Lurcott v. Makely & Wheeler (1911 (1) K.B 905):
“Repair is restoration by renewal or replacement of subsidiary parts of a whole. Renewal, as distinguished from repair, is reconstruction of the entirety, meaning by the entirety not necessarily the whole but substantially the whole subject-matter under discussion. I agree that if repair of the whole subject-matter has become impossible a covenant to repair does not carry an obligation to renew or replace”.
the expression ‘repairs’ cannot be extended to indicate an obligation or a right to reconstruct. Secondly the tenant's obligation is only to hand back the demised premises in the same condition after keeping it in good repair and not to present the landlord with a new structure. In the words of Harman L.J, “you are not to hand back to your landlord a different thing from that which he demised to you” (See Brow Bros. Ltd. v. Snax (Rose) Ltd. ((1970), 1 Q.B 612).
8. The learned counsel for the appellant relied on the decision of the Andhra Pradesh High Court in Eashwar v. Sudarsban (A.I.R 1985 A.P 4) to contend that the tenant putting up the roofing and the door which had fallen down without the permission of the landlord cannot be said to be a transgression of any provision of law and that on the extension of that principle the tenant is entitled to reconstruct the building as well which had been destroyed. Apart from the fact that the said decision does not contain any derailed discussion of the principle of law on the basis of Which the said observation is made, it also appears to me that to repair or to replace part of a roof which had decayed due to natural causes Would be something quite different from a right to put up a new building in the place of old. In the light of what I have stated earlier the argument based on the decision reported in A.I.R 1985 A.P 4 cannot be accepted. Moreover the view expressed therein may not accord with the view of this court as expressed by Mr. Justice K.G Balakrisbnan in S.A No. 198 of 1985 (1991 (2) KLT SN 2).
9. It therefore appears to me that the tenant cannot claim a right to reconstruct the building on bis own. It is not pleaded in this case that there was any special covenant between the landlord and the tenant in this case regarding repair, renovation or reconstruction (See in this connection Gopalakrishnan Nair v. Joshi, (1985 KLT 132). What was pleaded was that subsequent to the destruction of the building there was a contract for the lessee to pay Rs. 15,000/- to the landlord and for the landlord to reconstruct the building. It was claimed that the sum of Rs. 15,000/- had been paid. Both the agreement set up and the claim of payment of Rs. 15,000/- have been found against by the courts below. There is also no reason to differ from that finding of the courts below.
10. If as observed by Mulla in his Commentaries on the Transfer of Property Act (seventh edition, page 722) “the tenant cannot make structural additions and alterations without the consent of the landlord” the tenant cannot certainly put up a new building in the place of the old without the consent of the landlord. The courts below have only restrained the appellants from putting up a new building on their own and I find that the said decree is perfectly justified in Law.
11. I dismiss the Second Appeal.