Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 9
CASE NO.:
Appeal (civil) 41 of 2003
PETITIONER:
KEDAR NATH AGRAWAL (DEAD) & ANR
RESPONDENT:
DHANRAJI DEVI (DEAD) BY LRs. & ANR
DATE OF JUDGMENT: 13/10/2004
BENCH:
ARIJIT PASAYAT & C.K. THAKKER
JUDGMENT:
J U D G M E N T
Thakker, J.
The present appeal is filed by the tenant of disputed shop ka
situate in Kasba Rasra, Paragana Lakhaneshuwar, District Ballia,
against the order of eviction passed by the Prescribed Authority under
the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and
Eviction) Act, 1972 (hereinafter referred to as ’the Act’), in Case
No.29 of 1983, confirmed by the District Judge, Ballia in Rent
Control Appeal No.4 of 1984 and also confirmed by High Court of
Judicature at Allahabad in Civil Misc. Writ Petition No.19160 of
1985.
To appreciate the controversy raised in the appeal, few relevant
facts may be stated.
An application under Section 21 of the Act was filed by
Dhanraji Devi and Jagdeo Shah, stating inter alia that applicant No.2
was the owner of the suit property and applicant No.1 was her
husband. Applicant No.2 purchased the property but due to his old
age got the sale deed executed in the name of applicant No.1. It was
also stated that applicant No.2 constructed a shop and carried on cloth
business in the said shop for some time. He had also cloth business at
Calcutta and since it was not properly managed, he decided to go to
Calcutta. He let the suit shop to the opponents \026 appellants herein for
a period of one year. It was further stated in the application that due
to riots in Bengal the applicants had to put an end to the business at
Calcutta and they had to return at Ballia. The source of livelihood
then remained in conducting business in the suit-shop. They had
obtained licence to carry on hosiery business. They, therefore, bona
fide required the suit property for doing the said business and to earn
livelihood. It was also alleged that the opponents were not doing any
business in the suit-shop and they had locked it only to harass the
applicants. It was, therefore, prayed that an order of eviction may be
passed against the opponents.
The opponents \026 appellants herein filed a written statement
denying the facts stated and averments made in the application. It was
denied that the applicants required the suit-shop for their bona fide use
for business. It was also stated that the opponents were paying rent
regularly and doing their business since many years. It was asserted
that the applicants had other properties also and hence their
requirement could not be said to be bona fide. Moreover, the
applicants had cloth business at Calcutta and they were not in need of
the shop. It was, therefore, prayed that the application was liable to be
dismissed.
On the basis of the pleadings of the parties and considering the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9
evidence adduced by them, the Prescribed Authority allowed the
application and held that the applicants were entitled to possession of
the suit-shop as their need was bona fide. It further held that the
applicants would suffer more hardship if the shop would not be
released in their favour. Accordingly, an order of eviction was passed
in favour of the applicants and against the opponents.
Being aggrieved by the order passed by the Prescribed
Authority, the appellants herein preferred an appeal before the District
Judge, Ballia who also dismissed the appeal and confirmed the order
of eviction passed by the Prescribed Authority.
Against the order passed by the District Judge, the appellants
approached the High Court of Allahabad. As stated above, even the
High Court dismissed the Writ Petition. Before the High Court
certain subsequent events which had emerged during the pendency of
the writ petition, namely, death of respondents No.3 and 4 (Original
applicants) were brought to the notice of the court. The court,
however, held that they could not be taken into consideration.
Resultantly, the orders passed by the courts-below were confirmed.
Notice was issued by this Court on October 29, 1999 in view of
the provisions of sub-section (7) of Section 21 of the Act as also in the
light of the decision of three Judge Bench of this Court in Hasmat Rai
& another vs Raghunath Prasad, AIR 1981 SC 1711: (1981) 3 SCR
605. In the meantime interim stay of decree for possession was also
granted. On January 3, 2000, leave was granted, interim stay was
ordered to be continued and hearing of appeal was expedited. An
appeal was placed for final hearing on September 9, 2004 and since
none was present, it was dismissed for default. It was then restored on
February 17, 2003. On September 1, 2004, it was brought to the
notice of the court that the possession of the disputed premises was
taken over on October 22, 2002 after the appeal was dismissed for
default and before an order of restoration was passed. The matter
was, therefore, adjourned to obtain instructions. On September 29,
2002, when the matter was called out for hearing, the learned counsel
for the respondents stated that the possession was with the
respondents, while the said statement was disputed by the learned
counsel for the appellants.
We have heard the leaned counsel for both the parties.
The learned counsel for the appellant submitted that the
Prescribed Authority under the Act has committed an error of law and
of jurisdiction in ordering eviction against the appellants. According
to the learned counsel, it was not proved that the applicants bona fide
required the property for doing business as asserted by them. It was
also submitted that irreparable hardship would be caused to the
appellants-tenants if order of eviction would be passed against them
and on that ground also, no order could have been passed by the
authority. In any case, when both the applicant (husband and wife)
died during the pendency of proceedings before the High Court, the
High Court was incumbent to consider the subsequent event and ought
to have dismissed the application filed by them. By not doing so, the
High Court has committed an illegality which deserves interference
by this Court. It was further contended that the High Court was under
duty to consider the provisions of sub-section (7) of Section 21 of the
Act and to decide whether the legal representatives of the applicants
were entitled to contest the writ petition instituted by the petitioners-
appellants. Regarding taking over possession by the respondents
during the pendency of the appeal before this Court, it was submitted
by the learned counsel that it is not correct and still the appellants
herein are in possession of the suit-shop. It was, therefore, prayed that
appeal may be allowed and the order of eviction passed by the
Prescribed Authority and confirmed by the District Judge as well as
by the High Court may be set aside.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9
Learned counsel for the respondents, on the other hand,
supported the orders passed by the courts below. It was submitted
that after considering the pleadings of the parties and evidence on
record, the Prescribed Authority made an order in favour of the
applicants which was confirmed by the District Judge and also by the
High Court. The order was passed on the basis of the requirement
when the application was instituted. It is settled law, submitted the
counsel, that the relevant date for deciding the lis between the parties
is the date of institution of suit/application and the High Court was
wholly justified in not entertaining an argument of the appellants for
taking into account subsequent events. The order, therefore, need not
be interfered with. It was also submitted that the appeal has become
infructuous inasmuch as the possession of the suit-shop has already
been taken over by the respondents which is clear from the affidavit
filed on behalf of the respondents as also from the photographs which
have been produced before this Court. It was, therefore, prayed that
the appeal may be dismissed.
Having heard the learned counsel for the parties and having
considered the relevant provisions of law as also the decisions of this
Court, in our opinion the appeal deserves to be partly allowed. So far
as the finding recorded by the Prescribed Authority under the Act as
to bona fide requirement of the applicants is concerned, in our opinion
it is a pure finding of fact and cannot be disturbed by this Court.
Similarly, regarding comparative hardship, the Prescribed Authority
observed in the order that more hardship would be caused to the
applicants if the order would not be passed in their favour than the
hardship which would be caused to the opponents if the order of
eviction would be passed against them. The said finding is also a
finding of fact and cannot be upset. Hence, on both this counts, we
are unable to uphold the contention of the learned counsel for the
appellants.
The question then remains as to effect of subsequent event. It is
not in dispute between the parties that during the pendency of the Writ
Petition before the High Court, both the applicants died and their three
daughters were brought on record. It is also not in dispute that all the
three daughters are married and they are at their marital homes with
their in-laws. In view of the said fact an argument was advanced on
behalf of the tenants before the High Court that the said circumstance
was an eloquent one and must be taken into account which had
occurred during the pendency of the proceedings which would affect
the final outcome. According to the tenants, in view of death of both
the applicants, the requirement as pleaded by the applicants in the
application did not survive and the application was liable to be
rejected. It was the power and the duty of the High Court to take into
account subsequent event which emerged during the pendency of the
writ petition and pass an appropriate order taking into consideration
such development. In support of the said contention, reliance was
placed by the learned counsel on several decisions of this Court.
Per contra, it was argued on behalf of the respondents that the
legality and the validity of the decree or order passed by the
Prescribed Authority has to be tested on the basis of rights of the
parties as stood at the time when the application was filed.
Subsequent event could not take away accrued and vested right of the
applicants.
The High Court held that the objection raised by the heirs of
applicants was well founded and the Court could not take into account
the subsequent event of death of applicants during the pendency of
writ petition. It was also observed that a party could not be penalized
for the delay in court and when the order of eviction was legally
passed in favour of the applicants, it could not be set aside by
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9
considering the subsequent event of death of applicants. The High
Court also observed that the decisions cited on behalf of the writ
petitioners wherein subsequent events were taken into account were in
appeals. According to the High Court, an appeal can be said to be a
’continuation of suit’ but not a writ petition. It was observed that once
the case was decided by the Prescribed Authority and appeal was
dismissed by the District Judge, the High Court had no power to
consider subsequent events in the proceedings under Article 226/227
of the Constitution and accordingly it dismissed the writ petition.
In our opinion, by not taking into account the subsequent event,
the High Court has committed an error of law and also an error of
jurisdiction. In our judgment, the law is well settled on the point, and
it is this: The basic rule is that the rights of the parties should be
determined on the basis of the date of institution of the suit or
proceeding and the suit/action should be tried at all stages on the
cause of action as it existed at the commencement of the suit/action.
This, however, does not mean that events happening after institution
of a suit/proceeding, cannot be considered at all. It is the power and
duty of the court to consider changed circumstances. A court of law
may take into account subsequent events inter alia in the following
circumstances:
(i) The relief claimed originally has by reason of subsequent
change of circumstances become inappropriate; or
(ii) It is necessary to take notice of subsequent events in order to
shorten litigation; or
(iii) It is necessary to do so in order to do complete justice between
the parties.
[Re: Shikharchand Jain vs Digamber Jain Praband Karini Sabha &
Ors, (1974) 1 SCC 675 : (1974) 3 SCR 101]
Let us consider relevant case law in this regard.
Before about a century in Ram Rattan vs Mohant Saha, (1907)
6 Cal LJ 74 : 11 Cal WN 732, the High Court of Calcutta observed
that there are certain exceptions to the general rule that a suit must be
tried in all stages on the cause of action as it existed at the date of its
commencement. In Lachmeshwar Prasad Shukul vs Keshwar Lal
Choudhury, 1940 FCR 84 : AIR 1941 FC 5, the Federal Court took
into account the provisions of the new Act which came into force
during the pendency of appeal before the Federal Court.
In the leading decision of Pasupuleti Venkateswarlu vs. Motor
& General Traders, (1975) 1 SCC 770 : AIR 1975 SC 1409: (1975) 3
SCR 958, this Court considered a subsequent event. The plaintiff
filed a suit for possession on the ground of personal requirement for
starting business and an order was passed in his favour. An appeal
against the said order was also dismissed. The tenant filed a revision
petition in the High Court. During the pendency of revision petition,
the plaintiff acquired possession of another non-residential building.
An application for amendment, therefore, was made by the tenant.
The High Court allowed the amendment. The landlord challenged the
order in this Court. It was contended by the landlord that the High
Court had committed an error in taking cognizance of subsequent
event which was ’disastrous’. This Court, however, held that the High
Court did not commit any illegality in considering the subsequent
event.
Following Lachmeshwar Prasad, law of ’ancient vintage’,
Krishna Iyer, J. stated:
"We feel the submissions devoid of substance. First
about the jurisdiction and propriety vis-‘-vis
circumstances which come into being subsequent to the
commencement of the proceedings. It is basic to our
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9
processual jurisprudence that the right to relief must be
judged to exist as on the date a suitor institutes the legal
proceeding. Equally clear is the principle that 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 \026 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 of
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 cognizance
of events and developments subsequent to the institution
of the proceeding provided the rules of fairness to both
sides are scrupulously obeyed." (Emphasis supplied)
Pasupuleti Venkateswarlu was followed in many cases. In
Gulabbai vs. Nalin Narsi Vohra & Others, (1991) 3 SCC 483 : AIR
1991 SC 1760, an order of eviction was passed against the tenant on
the ground of bona fide need of the landlord. Subsequent event of
shifting family of the landlord to a spacious bungalow constructed by
him during the pendency of appeal, was considered by this Court.
In Ramesh Kumar vs Kesho Ram, (1992) Supp (2) SCC 623 :
AIR 1992 SC 700, this Court observed that a court can mould relief
taking ’cautious cognizance’ of subsequent events. The Court also
observed that all these depend on factual and situational differences
and ’there can be no hard and fast rule governing the matter’.
In Shadi Singh vs Rakha, (1992) 3 SCC 55 : AIR 1994 SC
800, a landlord sued a tenant for ejectment on the ground that the
building required thorough repair. During the pendency of the suit,
the tenant carried out necessary repair. Taking note of the event, this
Court dismissed the suit of the landlord.
In Super Forgings & Steels (Sales) Pvt. Ltd. vs Thyabally
Rasuljee (Dead) Through LRs, (1995) 1 SCC 410, dealing with
power of this Court to take note of subsequent events in an appeal
under Article 136 of the Constitution, this Court stated that "the power
of this Court in an appeal under Article 136 of the Constitution to take
cautious cognizance of events and developments subsequent to
institution of eviction proceedings and grant, deny or 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."
In P. Sriramamurthy vs Vasantha Raman (Mrs), (1997) 9
SCC 654 : AIR 1997 SC 1388, an order of eviction was passed in
favour of landlord and against tenant on the ground of non-payment of
rent. During the pendency of appeal before this Court, husband of the
landlady retired from service and they needed the premises for
personal occupation also. Though the ground was not set up earlier,
taking note of subsequent event, this Court allowed the ground to be
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9
raised and granted the relief.
In Lekh Raj vs Muni Lal & Others, (2001) 2 SCC 762 : AIR
2001 SC 996, this Court indicated that the law on the subject is well
settled. The court should not shut its door in noticing subsequent
events. All laws and procedures including functioning of courts are
all in aid to confer justice who knock its door. The court should
interpret the law not in derogation of justice but in its aid. Bringing
on record subsequent event, which is relevant, should, therefore, be
permitted to be brought on record to render justice to a party. But the
court in doing so should be cautious not to permit it in a routine
manner. It should refuse the prayer where party is doing so to delay
the proceedings and to harass the other party or doing so for any other
ulterior motive. The court should also examine whether the alleged
subsequent event has any material bearing on issues involved or
would materially affect the result of the suit.
In Om Prakash Gupta vs Ranbir B. Goyal, (2002) 2 SCC 256 :
AIR 2002 SC 665, this Court stated: "The ordinary rule of civil law is
that the rights of the parties stand crystallized on the date of the
institution of the suit and, therefore, the decree in a suit should accord
with the rights of the parties as they stood at the commencement of
the lis. However, the Court has power to take note of subsequent
events and mould the relief accordingly subject to the following
conditions being satisfied: (i) that the relief, as claimed originally has,
by reason of subsequent events, become inappropriate or cannot be
granted; (ii) that taking note of such subsequent event or changed
circumstances would shorten litigation and enable complete justice
being done to the parties; and (iii) that such subsequent event is
brought to the notice of the court promptly and in accordance with the
rules of procedural law so that the opposite party is not taken by
surprise."
Strong reliance was placed by the contesting respondents on a
decision of this Court in Rameshwar & Others vs Jot Ram &
Another, (1976) 1 SCC 194 : (1976) 1 SCR 847, before the High
Court as well as before us. In Rameshwar, the tenant had become
’deemed purchaser’ under the Punjab Security of Land Tenures Act,
1953. During the pendency of appeal, the ’large’ land owner died and
his heirs became ’small’ land owners. It was, therefore, contended on
behalf of the land owners in appeal that since appeal is continuation of
suit, subsequent event of death of the original owner should be
considered. This Court, however, refused to take note of subsequent
event on equitable considerations. Keeping in view the agrarian
reforms, this Court said: "To hold that, if the landlord dies at some
distant date after the title has vested in the tenant, the statutory process
would be reversed if by such death, his many children, on division,
will be converted into small landholders, is to upset the day of
reckoning visualized by the Act and to make the vesting provision ’a
teasing illusion’, a formal festschrift to agrarian reform, not a flaming
programme of ’now and here’. These surrounding facts drive home
the need not to allow futurism, in a dawdling litigative scene, to foul
the quick legislative goals." (emphasis supplied)
In Gaya Prasad vs Pradeep Srivastava, (2001) 2 SCC 604 :
AIR 2001 SC 803, an eviction petition was filed in 1978 by the
landlord on the ground of bona fide need for the use as a clinic by his
son. The petition was allowed by the Rent Controller in 1982 and the
order was confirmed by the Appellate Authority in 1985. During the
pendency of the petition in the High Court, however, the son joined
medical service. Relying on the said development, it was contended
by the tenant before the High Court that the landlord was no more in
need of the premises and the petition was liable to be dismissed. The
High Court dismissed the revision petition. The aggrieved tenant
approached this Court. It was contended on behalf of the tenant that a
subsequent development could not have been ignored by the High
Court, particularly when the eviction was sought for personal use and
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9
the need no more continued in view of acceptance of service by the
son of the landlord. This Court, however, negatived the contention
and stated:
"We have no doubt that the crucial date for
deciding as to the bona fides of the requirement of the
landlord is the date of his application for eviction. The
antecedent days may perhaps have utility for him to
reach the said crucial date of consideration. If every
subsequent development during the post-petition period
is to be taken into account for judging the bona fides of
the requirement pleaded by the landlord there would
perhaps be no end so long as the unfortunate situation in
our litigative slow-process system subsists. During 23
years, after the landlord moved for eviction on the
ground that his son needed the building, neither the
landlord nor his son is expected to remain idle without
doing any work, lest, joining any new assignment or
starting any new work would be at the peril of forfeiting
his requirement to occupy the building. It is a stark
reality that the longer is the life of the litigation the
more would be the number of developments sprouting
up during the long interregnum. If a young entrepreneur
decides to launch a new enterprise and on that ground
he or his father seeks eviction of a tenant from the
building, the proposed enterprise would not get faded
out by subsequent developments during the traditional
lengthy longevity of the litigation. His need may get
dusted, patina might stick on its surface, nonetheless the
need would remain intact. All that is needed is to erase
the patina and see the gloss. It is pernicious, and we
may say, unjust to shut the door before an applicant just
on the eve of his reaching the finale, after passing
through all the previous levels of the litigation, merely
on the ground that certain developments occurred
pendent lite, because the opposite party succeeded in
prolonging the matter for such unduly long period."
We must now refer to Hasmat Rai. As already noted, notice
was issued by this Court on October 29, 1999 in view of the decision
of this Court in Hasmat Rai. In the said decision, three Judge Bench
of this Court held that when eviction was sought on the ground of
personal requirement of landlord, such requirement must continue to
exist till the final determination of the case. Following the ratio laid
down in Pasupuleti Venkateswarlu, Desai J. stated; "It is now
convertible that where possession is sought for personal requirement,
it would be correct to say that the requirement pleaded by the
landlord must not only exist on the date of the action but also subsist
till the final decree or order for eviction is made. If in the meantime
events have crept up which would show that the requirement of the
landlord is wholly satisfied then in that case his action must fail and in
such a situation it is not incorrect to say that such decree or order for
eviction is passed against the tenant, he cannot invite the Court to take
into consideration the subsequent events." (emphasis supplied)
In view of the settled legal position as also the decisions in
Pasupuleti Venkateswarlu and Hasmat Rai, in our opinion, the High
Court was in error in not considering the subsequent event of death of
both the applicants. In our view, it was power as well as the duty of
the High Court to consider the fact of death of the applicants during
the pendency of the writ petition. Since it was the case of the tenant
that all the three daughters got married and were staying with their in-
laws, obviously, the said fact was relevant and material. The ratio laid
down by this Court in Rameshwar, would not apply to the facts of this
case as it related to agrarian reforms. Likewise, Gaya Prasad, does
not carry the matter further. There during the pendency of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9
proceedings the son for whom requirement was sought had joined
Government Service. In the instant case, the requirement was for the
applicants, who died during the pendency of writ petition. Gaya
Prasad is thus clearly distinguishable.
There is yet another reason on which the order passed by the
High Court is liable to be set aside. As stated earlier, notice was
issued by this Court on October 29, 1999 in view of provisions of sub-
section (7) of Section 21 of the Act. Sub-section (1) of the said
section enables the landlord to get possession of the tenanted properly
on certain grounds. One of such grounds is bona fide requirement by
the landlord for residential purposes or for purposes of any profession,
trade or calling. Sub-section (1) has to be read with sub-section (7) of
Section 21. The relevant part of Section 21 reads as under;
"21. Proceedings for release of building under
occupation of tenant.\027(1) The Prescribed
Authority may, on an application of the landlord
in that behalf order the eviction of a tenant from
the building under tenancy or any specified part
thereof if it is satisfied that any of the following
grounds exists, namely\027
(a) that the building is bona fide required
either in its existing form or after
demolition and new construction by
the landlord for occupation by
himself or any member of his family,
or any person whose benefit it is held
by him, either for residential
purposes or for purposes of any
profession, trade, or calling, or where
the landlord is the trustee of a public
charitable trust, for the objects of the
trust ;
\005 \005 \005
(7) Where during the pendency of an
application under clause (a) of sub-section (1),
the landlord dies, his legal representatives shall
be entitled to prosecute such application further
on the basis of their own need in substitution of
the need of the deceased."
Conjoint reading of clause (a) of sub-section (1) and sub-
section (7) of Section 21 makes it clear that where the possession is
sought by the landlord on the ground of bona fide requirement and
during the pendency of the application, the landlord dies, his legal
representatives can prosecute such application on the basis of their
own need in substitution of the need of the deceased.
In the light of decisions referred to by us, particularly in
Hasmat Rai and the provisions of sub-section (7) of Section 21 of the
Act, the High Court has to consider the matter and record a finding.
For the reasons aforesaid, the appeal deserves to be allowed by
setting aside the order passed by the High Court. The matter is
remitted to the High Court with a direction that the High Court shall
consider the subsequent event of death of both the applicants and also
the provisions of sub-section (7) of Section 21 of the Act in the light
of observations made hereinabove and pass an appropriate order in
accordance with law after hearing the parties.
Regarding possession, as already noted earlier, according to
respondents, after the dismissal of the appeal in default and before
restoration, they have already taken over possession of the shop.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9
According to the appellants, however, possession has remained with
them. We express no opinion. When we are remitting the matter to
the High Court with a direction that the High Court will decide the
matter afresh according to law, appropriate order will be passed in
consonance with the final decision by the High Court. Till then status
quo as of today shall continue. There shall be no order as to costs.