NON REPORTABLE

     IN THE SUPREME COURT OF INDIA       CIVIL APPELLATE JURISDICTION

     CIVIL APPEAL NO.4581 OF 2008     (Arising out of SLP (C) No. 4929 of 2007)

Mohammed …… Appellant (s)  

VERSUS  

Pushpalatha …… Respondent (s)

O  R  D  E  R

1. Leave granted.   

2. This  is  an  appeal  from an order  dated  30th of  August,

2006  passed  by  the  High  Court  of  Karnataka  at

Bangalore  in  RFA  No.  403  of  2004.   The  appellant

before  us  is  a  tenant  in  respect  of  the  premises  in

question  and  he  had  filed  a  suit  for  permanent  and

mandatory  injunction,  directing  the  respondent  to

construct a toilet in the said premises on the basis of an

agreement entered into by the parties.  It is not in dispute

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that  under the agreement,  being Exhibit  No. P1 before

the trial Court, the respondent agreed to reconstruct the

premises in question with toilet facility.  The premises in

question was reconstructed, but, however, the toilet was

not  reconstructed  according  to  the  terms  of  the

agreement.  In the old structure of the said premises, the

appellant  was  paying,  as  a  tenant  to  the respondent,  a

sum of Rs. 325/- per month as rent.  It would be evident

from the agreement itself  that the tenant had agreed to

pay  rent  at  the  rate  of  Rs.  1250/-  per  month  after

reconstruction  in  terms  of  the  said  agreement.

Admittedly,  under  the  said  agreement,  the  respondent

was liable to reconstruct the premises with toilet facility.

The  toilet  was  not  constructed  and  accordingly,  the

aforesaid suit was filed by the appellant for a decree that

the respondent shall construct a toilet and to declare that

the tenant was liable to pay the rent at the old rate and

not as per Exhibit P1 and for permanent injunction not to

interfere with the peaceful possession and enjoyment.   

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3. The  trial  Court  decreed  the  suit  and  directed  the

respondent  to  construct  the  toilet  as  agreed  to  by  the

parties within three months from the date of the delivery

of the judgment.  The impugned order of the High Court

discloses  that  the  toilet  has  not  yet  been  constructed.

According to the appellant, the tenant  is  only liable to

pay at the rate of Rs.1250/- per month after the toilet is

constructed  and  given  possession  to  him.   The  High

Court,  in  Appeal,  held  that  the appellant  was  liable  to

pay rent at the rate of Rs. 1250/- per month and not at the

rate  of  Rs.  325/-  per  month,  although,  in  terms of  the

agreement, toilet was not constructed and possession not

given in respect of the same.    

4. Feeling aggrieved by the Judgment  of the High Court,

the present appeal, after grant of leave, has been filed,

which was heard by us in presence of the learned counsel

for the parties. Having heard the learned counsel for the

parties and after going through the materials  on record

including  the  judgments  of  the  Courts  below  and  the

agreement executed between the parties,  we are of  the

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view that the appellant shall be liable to pay rent at the

rate of Rs. 1250/- per month after the toilet is constructed

and possession given thereof.   

5. As noted herein earlier, in this case, toilet has not been

constructed  at  all,  although,  the  other  part  of  the

agreement,  namely,  reconstruction  has  been  made  and

possession has been delivered to the appellant.  In view

of Section 51 of the Contract Act, we are of the view that

the appellant is liable to pay rent at the rate of Rs. 1250/-

per  month,  only  after  the  toilet  is  constructed  and

possession of the toilet given to the appellant.   

6. The learned counsel for the respondent also agreed that if

three months’ time is granted to the respondent, the toilet

shall be constructed and possession can be given within

a month from the date of construction of the toilet.  

7. Such being the stand taken by the learned counsel for the

respondent,  we dispose of  this  appeal  in the  following

manner :-

a) The decree passed by the trial Court that the toilet shall be constructed is

affirmed  and  the  respondent  is  directed  to  construct  the  toilet  and

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possession of the toilet must be given to the appellant within four months

from the date of supply of a copy of this order.   

b) If such toilet is constructed and possession is delivered to the appellant,

the appellant shall pay rent at the rate of Rs. 1250/- per month from the

1st day of the Calendar month, in which the possession of the toilet shall

be given to the appellant.   

c) If no toilet is constructed and possession of the toilet is not given to the

appellant, the Judgment of the High Court shall stand affirmed and this

appeal shall stand dismissed.   

8. With the above directions, the appeal is disposed of.

There will be no order as to costs.

…………………………..J. (TARUN CHATTERJEE)

…………………………..J. (AFTAB ALAM)

NEW DELHI,

JULY 21, 2008

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