JUDGMENT Sudhir Naraln, J.
1. This writ petition is directed against the judgment and decree of the Judge Small Causes Court dated 8.4.1994 decreeing the suit for recovery of arrears of rent, ejectment and damages and the order dated 12.10.1999 passed by the revisional court dismissing the revision against the said judgment and decree.
2. The facts, in brief, are that the plaintiff-respondents filed SCC Suit No. 465 of 1993 for recovery of arrears of rent, ejectment and damages on the allegations that the plaintiff was the owner of shop No. 2 situated in Purwa Haftz Abdul Karim, Machheran. Kesar GanJ, Meerut and the defendant was the tenant in the said shop at monthly rent of Rs. 60. This shop was demolished on 15.9.1976 by the Cantonment Board, Meerut. In conspiracy with the tenant and after demolition of the shop, the defendant did not vacate the disputed premises. The plaintiff sent a notice on 10.11.1976 demanding arrears of rent from 1.7.1976 to 31.10.1976 and called upon him to vacate the premises.
3. The defendant-petitioners contested the suit and pleaded that the shop was constructed illegally on the plot of Cantonment Board and it was demolished on 15.9.1976. The rent was paid by the defendants to the Cantonment Board, The trial court recorded a finding that the shop was let out by the plaintiff to the defendants and there was a relationship of the landlord and tenant between the parties, it was further found that even if the shop was demolished by the Cantonment. Board, the relationship of landlord and tenant continued and after service of the notice the tenants were bound to pay arrears of rent on service of notice of demand. The suit was, accordingly, decreed. The petitioners filed revision and respondent No. 1 has dismissed the revision.
4. Sri Vinod Sinha. learned counsel for the petitioners submitted that as the accommodation In question was demolished by the Cantonment Board, the relationship of landlord and the tenant ceased and thereafter only the Cantonment Board is entitled to evict the petitioners. It is not denied that the shop was let out to the petitioners and after it was demolished by the Cantonment Board, it was open to the petitioners either to continue as tenants of the plaintiff or to hand over possession of the premises in question to him. The petitioners chose to continue to occupy the premises.
5. Section 108(e) of the Transfer of Property Act provides that 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 unfit for the purposes for which it was let, the lease shall, at the option of the lessee, be void. In Smt. Shyam Kumari and others v. Ejaz Ahmad Ansart, AIR 1977 All 376, the Court Interpreting this provision held that the lease will not be rendered void on account of the destruction of the property. It was observed that "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." In case the lessee chooses that the lease be treated as void, he is bound to put the lessor into possession under section 108(q) of the Transfer of Property Act. The petitioners having not handed over the possession of the premises in dispute, the lease shall be treated to continue and the landlord Is entitled to terminate the tenancy in accordance with law.
6. The next contention of the learned counsel for the petitioners is that on the date of filing of the suit, as no construction existed, the suit was not cognizable by Judge Small Causes Court. Admittedly, the petitioners were let out the shop in question. The date of letting was relevant and if by the date of filing the suit, the construction does not exist for the reasons beyond the control of the lessor, the suit shall be cognizable by the Judge Small Causes Court.
7. In fact the plaintiff had filed the suit in the civil court. The defendant-petitioners raised an objection that the suit is not cognizable by the civil court. The Munsif, Havali. Meerut. passed order on 16.2.1983 holding that the civil court had no jurisdiction to try the suit and the suit is cognizable by the Judge Small Causes Court. The petitioners never challenged that order. Thereafter the suit was tried by the Judge Small Causes Court. It is not now open to the petitioners to urge that the Judge Small Causes Court had no jurisdiction to try the suit.
8. The last submission of the learned counsel for the petitioners is that the plaintiff had sent notice dated 21.10.1976 to the defendant wherein it was alleged that the possession of the petitioners was illegal as the constructions have been demolished and on such notice, the plaintiff-landlord had no right to file the suit. The plaintiff had sent a composite notice dated 10.11.1976 demanding arrears of rent and terminating the tenancy. The basis of the suit was the notice dated 10.11.1976. The petitioners have neither annexed the copy of the notice dated 10.11.1976 nor have shown any illegality in the said notice. The suit was filed with the allegations that the defendants were tenants of the premises in question and they having failed to pay arrears of rent as demanded in the notice, they were liable for eviction. The suit, on these allegations. was maintainable.
9. I do not find any merit in the writ petition. It is, accordingly, dismissed.
10. The writ petition is dismissed with the aforesaid observations.