Full Judgment Text
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PETITIONER:
SUPER FORGINGS & STEELS (SALES) PVT. LTD.
Vs.
RESPONDENT:
THYABALLY RASULJEE (DEAD) THROUGH L.R’S.
DATE OF JUDGMENT01/12/1994
BENCH:
VENKATACHALA N. (J)
BENCH:
VENKATACHALA N. (J)
RAMASWAMY, K.
CITATION:
1995 SCC (1) 410 JT 1995 (1) 51
1994 SCALE (5)125
ACT:
HEADNOTE:
JUDGMENT:
VENKATACHALA, J.:
1. This is a tenant’s appeal by special leave granted
under Article 136 of the Constitution. It is directed
against the judgment and order dated 22.12 1981 of the High
Court of Judicature at Madras in CRP No. 1923 of 1981 by
which an eviction order made by the courts below against the
tenant/appellant under Section 10(3)(a)(iii) of the Tamil
Nadu Buildings (Lease and Rent Control) Act, 1960 --"the
Act", was affirmed.
2. Messrs Fakruddin & Company is a partnership firm the
business of which was formerly carried on by Thyabally
Rasuljee, respondent-l at non-residential building No. 155
Linghi Chetty Street, Madras, taken on rent, not being his
own.
3. Messrs Super Forgings & Steels Ltd, a company
registered under the Indian Companies Act is the tenant,
which was carrying on its business in a non-residential
building No. 118, Linghi Chetty Street, Madras -- "the
petition non-residential building" of which respondent-l was
the landlord. The landlord filed a petition against the
tenant on the ground available to him under Section
10(3)(a)(iii) of the Act before the Rent Controller at
Madras for eviction of the tenant from the petition non-
residential building, by stating the facts which constituted
the said ground, thus:
"The petitioner submits that he is carrying on
business in the name and style of Messrs
Fakruddin & Company which is a partnership
firm at No. 155 (Old No. 307) Linghi Chetty
Street, G.T. Madras1, which is a rented d
building and there is a threat of eviction.
The petitioner is not in occupation of an),
building of his own for the business which he
is carrying on anywhere in the City of
Madras."
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4. Since it was found by the Rent Controller that the
facts constituting the said ground of eviction under
Section 10(3)(a)(iii) of the Act, on which the landlord had
sought eviction of the tenant from the petition non-
residential building were satisfactorily established,
eviction order was made by him in respect of the petition
non-residential building. Though, that eviction order was
challenged by the tenant before the Appellate Authority and
the High Court, in appeal and revision, respectively, both
the appeal and revision were dismissed by judgments and
orders made in them. The present appeal by special leave,
filed by the tenant in the year 1982 is directed against the
said eviction order of the Rent Controller and judgments and
orders of the Appellate Authority and the High Court.
5. Certain developments which have
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taken place during the pendency of the present appeal in
this Court, need mention here as they directly bear on the
case under appeal :- That in the year 1984, after an order
was made by this Court on 29.4.1982, granting special leave
to appeal from eviction order of the Rent Con’ troller and
the judgments and orders of the Appellate Authority and the
High Court and granting stay of eviction order operating
against the tenant, partnership business of M/s. Fakruddin &
Company which was carried on by respondent-l at the rented
non-residential building No. 155 Linghi Chetty Street,
Madras came to be shifted to non-residential building No.
151, Linghi Chetty Street, Madras. Respondent1 in the
present appeal, who was the landlord since died on
16.8.1985, that partnership business of M/s. Fakruddin &
Company, came to be carried on by some of its partners who
are some of the respondents 2 to 11 in this appeal, brought
on record as L.R’s of deceased respondent-l. When the said
developments were brought to the notice of a Division Bench
of this Court presided over by one of us (Ramaswamy, J.),
before which the present appeal had come up for hearing on
29.9.1993, an order was made directing the Small Causes
Court, Madras, to hold an enquiry into matters relating to
the partners who are carrying on the business of Messrs
Fakruddin & Company after the demise of respondent- 1, the
owners of non-residential building No. 151, Linghi Cherry
Street, Madras, where the business of M/s. Fakruddin &
Company is presently carried on, its partners who had become
the owners of the petition non-residential building after
the death of its owner respondent-l, and the owners of non-
residential building No. 151, Linghi Chetty Street, Madras,
and to submit a report on the questions specified 6.
therein. On an enquiry held by the Court of Small Causes at
Madras, pursuant to the said order, the report dated
4.4.1994 is sent by it to this Court. The true facts
disclosed in that report, which were not controverted,
before us are:
(i) that the partnership business of M/s.
Fakruddin & Company which was carried on by
the deceased landlord respondent-l, in rented
building No. 155, which was not his own, was
shifted in the year 1984 to non-residential
building No. 151, Linghi Cherry Street,
Madras;
(ii) that the partnership of M/s. Fakruddin &
Company, of which respondent-l, the father,
and respondents 2, 3, 5, 6, 8 and 9, the sons,
were the partners, has become the partnership
of sons of the deceased respondent-l, i.e.,
respondents 5, 6 and 9, Rashida, the wife of
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respondent-5, Sara, the wife of the
respondent6, Farida, the wife of respondent-9
and respondent-11 Sugrabai, the wife of
deceased respondent-l -- the active partners
out of them being respondents 5, 6 and 9, the
sons of deceased respondent-l;
(iii) that respondents-2 to 10 are the
co-owners of non-residential building No. 151,
Linghi Chetty Street, Madras after its
purchase which had taken place even before
filing of the eviction petition by the
landlord, respondent-l against the tenant-
appellant for its eviction from nonresidential
building No. 118, Linghi Chetty Street,
Madras;
(iv) that the petitioners-2 to 11 became the
co-owners of the non-residential building No.
118, Linghi Chetty Street, Madras - the
petition non-residential building, on the
demise of respondent-l, as his heirs.
6. Because of the said true facts
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disclosed from the report of the Court of Small Causes at
Madras which have emerged as a result of developments in the
case during the pendency of the present appeal, the main
question that needs our consideration and decision is,
whether respondents-5, 6 and 9, the sons of the deceased
respondent-1 who, as co-owners of non-residential building
No. 151, Linghi Chetty Street, Madras, arc carrying on the
business of their partnership M/s. Fakruddin & Company in
that non-residential building be regarded as landlords not
occupying a non-residential building in the city which is
their own, for obtaining under Section 10(3)(a)(iii) of the
Act, possession of the petition nonresidential building of
which also they are co-owners.
7. That a landlord who, for purposes of carrying on his
business, is not occupying a non-residential building of his
own in the city can get under Section 10(3)(a)(iii) of the
Act, possession or another non-residential building of his
own in the city in the occupation of a tenant was not
disputed on behalf of the tenant appellant. But it was
contended on behalf of the tenant-appellant that a landlord
occupying for purposes of carrying on his business a non-
residential building, of which he is a co-owner cannot claim
the benefit of ground of eviction available under section
10(3)(a)(iii) of the Act against a tenant in a non-
residential building of which he is a owner or a co-owner.
The sustainability of that contention was, questioned,
rather strenuously, by learned counsel for respondents 2 to
11 on the plea that a landlord who is a co-owner Of non-
residential building where he carries on his business, not
being its so1e owner, such building cannot be regarded as
’his own’ envisaged under section 10(3)(a)(iii) of the Act
as would disentitle him to the benefit of the ground of
eviction, available thereunder.. We find it difficult to
accept the plea advanced on behalf of respondents 2 to 11 in
questioning the sustainability of the contention raised on
behalf of the appellant-tenant.
8. Section 10(3)(a)(iii) of the Act in-sofar as it is
material, reads thus:-.-
"10(3)(a) ..................
(ii) ..................
(iii) In case it is any other
nonresidential building if the landlord or
(any member of his family) is not occupying
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for purposes of a business which he or (any
member of his family) is carrying on, a non-
residential building in the city, town or
village concerned which is his.
OWn"
9. If a landlord is a co-owner of a non-residential
building in the city, town or village concerned, which he is
occupying for purposes of carrying on his business, will he
not be occupying therefor a non-residential building of his
own envisaged in the above Section 10(3)(a)(iii), as would
disentitle him to the ground of eviction available
thereunder being the real question needing our answer in
the light of the aforesaid plea of learned counsel for
respondents urged in questioning the sustainability of the
contention raised on behalf of the appellant-tenant, we have
to find the answer therefor.
10. The answer to the said question, in our view, cannot
be anything other than that a non-residential building in
occupation of landlord which is ’his own’ envis-
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aged in Section 10(3)(a)(iii) above, is not only that of
which he is an absolute owner, but also that of which he is
a co-owner, for a co-owner of a building who is its landlord
is regarded under Rent Control Laws of our country as its
owner entitled to obtain possession of such a building from
a tenant for his bonafide requirement.
11. In Sri Ram Pasricha rs. Jagannath Ors., 1977(1)
SCR 395, a three-Judge Bench of this Court had to consider
the question whether a co-owner-landlord can be said to
require the premises for his own occupation within the
meaning of the expression "if he is the owner" in Section
13(1)(1’) of the West Bengal Tenancy Act, 1956 which read
thus:
"Sec. 13. Protection of tenant against
eviction --
(1 ) Notwithstanding anything to the contrary
in any other law, no order or decree for the
recovery of possession of ,’my premises shall
be made by any Court in favour of the landlord
against a tenant except on one or more of the
following grounds, namely --
where the premises are reasonably required by
the landlord either for purposes of building
or rebuilding or for making thereto
substantial additions or alterations or for
his own occupation if he is the owner or for
the occupation of any person for whose benefit
the premises are held".
12. The Bench which considered the aforesaid question
with reference to the said provision of Rent Control law,
pressed its view thereon, thus:
"jurisprudentially, it is not correct to say
that a co-owner of a property is not its
owner. He owns every part of the composite
property along with others ,’red it cannot be
said that he is only a pan-owner or a
fractional owner of the property. The position
will change only when partition takes place.
It is, therefore, not possible to accept the
submission that the plaintiff who is
admittedly the landlord and co-owner of the
premises is not the owner of the premises
within the meaning of section 13 (1 )(f). It
is not necessary to establish that the
plaintiff is the only owner of the property
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for the purpose of section 13(1)(f) as long as
he is a co-owner of the property being at the
same time the acknowledged landlord of the
defendants. ........ We are of the opinion
that co-owner is as much an owner of the
entire property as ,’my sole owner of a
property is."
13. The owner in the expression ’if he is the owner’ in
Section 13(1)(f) of the West Bengal Tenancy Act, 1956 when
as opined by this Court ought to be regarded as ’the co-
owner’ inasmuch as ’the owner’, like any sole owner of
property, there would be no justification for us to hold
that ’the non-residential building which is has own’ in
Section 10(3)(a)(iii) of the Act, can only be that of its
absolute ’owner’ and not of its ’co-owner’.
14. Therefore, we have no hesitation in reaching the
conclusion that the respondents, who are carrying on the
business of M/s. Fakruddin & Company in non-residential
building No. 151, Linghi Chetty Street, Madras, of which
they are co-owners can be regarded as landlords, who are
occupying their own non-residential building envisaged under
clause (iii) of Section 10(3)(a) of the Act, as would
disentitle them to retain the benefit of the eviction order
made by the Rent Controller against the tenant in respect of
the petition
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non-residential building at the instance of the deceased
respondent-l, for carrying on his business on the ground
that he did not occupy his own non-residential building for’
the purpose. Consequently, the eviction order of the Rent
Controller as affirmed by the Appellate Authority and the
High Court, which is under challenge in this appeal, calls
to be set aside taking into consideration the developments
which have taken place during its pendency in
this Court.
15. However, it was argued on behalf of respondents 2 to
11 that even if the non-residential building where
respondent was carrying on the partnership business of M/s
Fakruddin & Company, for the carrying on of which he wanted
to get possession of the non-residential building in
occupation of the appellant-tenant had come to be owned by
respondents 2 to 11 because of the death of respondent-l
during the pendency of the present appeal, they could not be
denied the benefit of eviction order under’ appeal got by
the deceased respondent- 1 under section 10(3)(a)(iii) of
the Act. What was submitted on behalf of respondents 2 to 11
was that a proceeding for eviction under the Act should be
regarded as having created a vested right when the eviction
order of the Controller was affirmed by the High Court in a
revision petition allowed under the Act and an appeal
pending in this Court under Article 136 of the Constitution
against that eviction order, being special appeal provided
for under the Constitution cannot be considered as a
continuation eviction proceeding as would entitle this Court
to deny the relief got by a party from the Rent Controller
and the High Court be:cause of the subsequent developments
taking place during the pendency of the appeal in this
Court. We find it difficult to accede to the said submission
made on behalf of respondents 2 to 11 in this appeal.
16. Section 10(3)(a)(iii) of the Act confers a right on a
landlord to take advantage of the ground available
thereunder to evict his/her tenant from a non-residential
building. The right conferred under that provision of the
Act is not an accrued right. As held by the Privy Council in
Abbott .v. Ministers for Land, 1895 AC 425, that a mere
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right to take advantage of the provision of an Act is not an
accrued right and this position is accepted by this Court in
Kanaya Ram and Others v. Rajender Kumar and Others, 1985(1)
SCC 436, as well. Therefore, if a landlord under the Act
obtains an eviction order in respect of a non-residential
building against the tenant taking advantage of the right
conferred upon him in that regard under section
10(3)(a)(iii) of the Act such eviction order does not create
in him an indefeasible vested right when it has not become
final and conclusive, having become the subject of an appeal
under Article 136 of the Constitution, where this Court has
the power to annul such eviction order, if the circumstances
so warrant. In Pasupuleti Venkateswarlu v. The Motor &
General Traders, 1975 (1) SCC 770, where a three judge Bench
of this Court had an occasion to deal about the jurisdiction
and propriety of Court taking note of the circumstances
which come into being after the commencement of the eviction
proceeding under a Rent Control Legislation, which will have
a fundamental impact on the right to relief or the manner of
moulding it, explained the legal position thus:
"..It is basis to our processual jurispru-
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dence that the right to relief must be judged
to exist as on the date a suitor institutes
the legal proceeding. Equaily clear is the
principle that the procedure is the handmaid
and not the mistress of the judicial process.
If a fact, arising after the lis has come to
court and has a fundamental impact on the
right to relief or the manner of moulding it,
is brought diligently to the notice of the
tribunal, it cannot blink at it or be blind to
events which stultify or render inept the
decretal remedy. Equity justifies bending the
rules of procedure, where no specific
provision or fairplay is not violated, with a
view to promote substantial justice - subject,
of course, to the absence of other
disentitling factors or just circumstances.
Nor can we contemplate any limitation on this
power to take note of updated facts to confine
it to the trial Court. If the litigation
pends, the power exists, absent other special
circumstances repelling resort to that course
in law or justice. Rulings on this point are
legion, even as situations for applications o
f
this equitable rule are myriad. We affirm the
proposition that for making the right or
remedy claimed by the party just and
meaningful as also legally and factually in
accord with the current realities, the Court
can, and in many cases must, take cautious
cognisance of events and developments
subsequent to the institution of the
proceeding provided the rules of fairness to
both sides are serupulously obeyed..."
17. The said legal position adumbrated by the three-Judge
Bench of this Court, leaves no room for us to doubt the
power of this Court to take note of the circumstances which
have cropped up during the pendency of an appeal under
Article 136 of the Constitution for granting, denying or
moulding the relief to be given to a party in such appeal,
for meeting the ends of justice. Hence, the power of this
Court in an appeal under Article 136 of the Constitution to
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take cautious congnizance of events and developments
subsequent to institution of eviction proceeding and grant,
deny, mould the relief sought by a party, in consonance with
justice and fair play is not restricted merely because it is
exercising its power to deal with an appeal conferred upon
it by the Constitution.
18. In the facts of the present case as we have pointed
out earlier respondents 2 to 11 become disentitled to obtain
eviction order under section 10(3)(a)(iii) of the Act
because they are the co-owners of a non-residential
building, where they are carrying on the business of M/s.
Fakruddin & Company for carrying on which business the
deceased respondent-1 had sought eviction of the appellant-
tenant from another non-residential building of which also
respondents 2 to 11 have become the co-owners after the
demise of respondent-l. Thus, the subsequent developments
which have arisen during the pendency of the present appeal
warrant the setting aside of the eviction order which is
questioned in appeal.
19. In the result, we allow this appeal and set aside the
eviction order made against the appellant-tenant by the Rent
Controller and the appellate and the revisional orders made
thereon by the appellate authority and the/High Court, with
no costs.
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