Rachita Dash Vs. Suresh Chandra Dash - Court Judgment

Excerpt:
civil - civil procedure code - section 24 - hardship by the petitioner to defend the suit as it has to travel to raigarh which involves overnight journey - interest of justice would be served if case transferred from raigarh to bhubaneshwar - [p.b. gajendragadkar, c.j.,; k.n. wanchoo,; n. rajagopala ayyangar,; j.c. shah, jj.] the appellant and his mother (the lessors), granted a lease of an open site in the town of coimbatore to abirama chettiar under a registered 'deed dated september 19,1934. the annual rent stipulated under the lease was rs. 10,80 and the period of the lease was 20 years. the term under the lease was that the land was to be utilised for constructing buildings thereon for "purposes of cinema. drama etc." it was further agreed between the parties that at the end of the term the lessee would demolish the buildings which he had. constructed and deliver vacant possession of the site lo the lessor. abirama chettiar constructed a theatre on the site, and assigned his rights to the respondent-company. in an action against the company for a decree in ejectment and for mesne profits, the trial court awarded to the lessors a decree for possession and mesne profits. against the decree the company-respondent preferred an appeal to the district court which was transferred for trial to the high court. during the pendency of this appeal, the state of madras extended the madras city tenants' protection act, 3 of 1922, as amended by madras act 19 of 1955 to the municipal town of coimbatore. the company then applied under a. 9 of the act and on this application the high court directed that the lessors do sell to the company the site in dispute under s. 9 of the madras city tenants protection act, 1922. against payment of the full market value of the land on the date of the order. the order was confirmed in an appeal under the letters patent held: per gajendragadkar, c.j., shah and sikri, jj. section 12 has been enacted to protect the tenants against any contractual engagements which may have been made expressly or by implication to deprive themselves wholly or partially of the protection intended to be conferred by the statute. and the only class of cases in which the protection becomes ineffective is where the tenant has made a stipulation in writing registered as to the erection of buildings, erected after the date of the contract of lease. the stipulations not protected in s. 12 are only those in writing registered and relate to erection of buildings. such as restrictions about the size and nature of the building constructed, the building materials to be used therein and the purpose for which the building is to be utilised. (ii)section 9(1) of the act was manifestly in the interest of the general public to effectuate the mutual understanding between the, landlords and the tenants as to the duration of the tenancies, and to conserve building materials by maintaining existing buildings for purposes for which the leases were granted. restriction imposed upon the right of the landlord to obtain possession of the premises demised according to the terms of the lease would, therefore not be regarded as imposing an unreasonable restriction in the exercise of the right conferred upon the landlord by art. 19(1) of the constitution, because the restriction would be regarded as one in the interests of the general public. what s. 9 does is not so much to deprive the landlord of his property or to acquire his rights to it as to give effect to the real agreement between him and his tenant which induced the tenants to construct his building on the plot let out to him. if the law is not invalid as offending art. 19(1)(f) of the constitution, no independent infringement of art. 31(1) of the constitution may be set up. per wanchoo and ayyangar, jj (dissenting) (1) the preamble of the act would indicate that the act would not apply to afford protection in a case where by an express term in a registered lease deed a tenant agreed to surrender the site on which he had erected a building, where he specifically contracted that he would demolish the building and deliver vacant possession of the site on the termination of his tenancy. if the scope of the proviso to s. 12 had to be construed in the light of the preamble, it is obvious that the tenant who had entered into a contract with a stipulation of the sort as stated above could not be said to have constructed the buildings on another's land "in the hope that he would not be evicted so long as he pays rent for the land". the high court erred in interpretting the proviso to s. 12 of the act. (ii) these words "as to the erection of buildings" mean a stipulation which bears on or is in relation to the erection of buildings. such a construction would reconcile the proviso with the preamble which sets out the object sought to be achieved by the act. if the lease deed contains no stipulation whatsoever in regard to the erection of buildings, as was the case with the large number of leases in the city of madras which were entered into prior to the enactment of the act in 1922, the tenant who erected the building exconcessis without contravening any undertaking on his part, obtains protection under the act. the test would therefore be "did the parties advert to and have in mind the lontingency of the tenant erecting buildings on the leased land"? if they had and had included in a solemn registered instrument a provision which would bear upon the relative rights of the parties in the event of the erection of buildings on the site, the stipulation would have effect notwithstanding the act; for in such an event the tenant would not have constructed buildings on the land in the hope that he would not be disturbed from possession so long as he paid the rent agreed upon.order1. the petitioner is the wife of the respondent who has filed civil suit no. 21a of 2002, in the court of first addl. district judge, raigarh, titled suresh chandra das v. rachita das, for divorce. the petitioner submits that she is living in puri and it is impossible for her to defend the suit a raigarh which is about 500 kms. from puri. her difficulty, she submits, is that the travelling involves overnight journey and she cannot leave with anybody a two-month baby to undertake the said journey to defend the suit, nor can the baby we taken to the court. the respondent in his counter submits that he is an employee in a bank and the requirements of his duty do not permit him to take leave too often for the pursue of his case. it is further submitted that he would bear her travelling expenses and that the case may be transferred to a place between raigarh and puri.2. having heard the learned counsel for the parties we are of the view that considering the comparative difficulties faced by the petitioner to defend the case at raigarh and that of the respondent in going to puri, in our view, interest of justice would be served if the case is transferred from the court of first addl. district judge, raigarh to the court of district judge, bhubaneshwar. we order accordingly.3. the learned district judge, bhubaneshwar, may try the case himself or allocate it to a court of competent jurisdiction for trial.4. the transfer petition is accordingly disposed of. no costs.

Judgment:
ORDER

1. The petitioner is the wife of the respondent who has filed Civil Suit No. 21A of 2002, in the Court of First Addl. District Judge, Raigarh, titled Suresh Chandra Das v. Rachita Das, for divorce. The petitioner submits that she is living in Puri and it is impossible for her to defend the suit a Raigarh which is about 500 Kms. from Puri. Her difficulty, she submits, is that the travelling involves overnight journey and she cannot leave with anybody a two-month baby to undertake the said journey to defend the suit, nor can the baby we taken to the Court. The respondent in his counter submits that he is an employee in a Bank and the requirements of his duty do not permit him to take leave too often for the pursue of his case. It is further submitted that he would bear her travelling expenses and that the case may be transferred to a place between Raigarh and Puri.

2. Having heard the learned counsel for the parties we are of the view that considering the comparative difficulties faced by the petitioner to defend the case at Raigarh and that of the respondent in going to Puri, in our view, interest of justice would be served if the case is transferred from the Court of First Addl. District Judge, Raigarh to the Court of District Judge, Bhubaneshwar. We order accordingly.

3. The learned District Judge, Bhubaneshwar, may try the case himself or allocate it to a Court of competent jurisdiction for trial.

4. The transfer petition is accordingly disposed of. No costs.