Full Judgment Text
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PETITIONER:
M.M. QUASIM
Vs.
RESPONDENT:
MANOHAR LAL SHARMA & ORS.
DATE OF JUDGMENT07/04/1981
BENCH:
DESAI, D.A.
BENCH:
DESAI, D.A.
PATHAK, R.S.
VENKATARAMIAH, E.S. (J)
CITATION:
1981 AIR 1113 1981 SCR (3) 367
1981 SCC (3) 36 1981 SCALE (1)747
CITATOR INFO :
D 1988 SC 411 (2,4)
ACT:
Bihar Buildings (Lease, Rent and Eviction) Control Act
1947-Ss. 2(d), 11(1)(c) Expln. and 11(1)(d)-Landlord-Meaning
of-Suit for eviction of tenant on ground of bonafide
personal requirement and default-Partition of properties of
landlord-Suit property allotted to a person not a party to
the eviction proceedings-Whether landlord entitled to
maintain and continue eviction proceedings.
Interpretation of Statutes-Administration of Rent Acts-
Courts to bear in mind object and intendment of legislature.
Words and Phrases-Landlord-Meaning of-Ss. 2(d) and
11(1) (c) Expln. Bihar Buildings (Lease, Rent and Eviction)
Control Act. 1947.
HEADNOTE:
Respondents 1 and 2 are the brother’s sons of
Respondent No. 3. These respondents commenced an action for
ejectment of the appellant from a shop under section
11(1)(c) & (d) of the Bihar Buildings (Lease, Rent and
Eviction) Control Act, 1947, alleging that the respondents
in good faith required possession of the shop for opening an
office and a clinic by the first respondent who had become a
qualified medical practitioner, and that there was default
in payment of rent for a period of three months i.e.
September, October and November, 1972. The appellant
contested the suit for eviction contending that he did not
commit default in payment of rent for the three months and
that the same was paid but no receipt was passed and that as
the respondents were avoiding the statutory liability of
passing the receipt acknowledging payment of rent, the
appellant was forced to send the rent by money-order from
December, 1972 and he sent the same month after month, and
therefore, he could not be dubbed a defaulter. The ground
for personal requirement was controverted contending that
the property belonged to a firm, and therefore, the same
cannot be claimed for the use of any one partner for his
business other than the business of the firm. It was further
contended that the respondents also owned a number of houses
and their requirement for Respondent No. 1 was incorrect and
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unwarranted.
The Trial Court held against the appellant both on the
question of default in payment of rent and personal
requirement and ordered eviction.
The appellant preferred an appeal and when the appeal
was pending before the appellate authority, he moved an
application under Order 41, Rule 27 of the Code of Civil
Procedure contending that there had been a partition of the
properties amongst the members of the firm and the suit shop
had been allotted
368
to one ’P’ who was neither a plaintiff nor a party to the
proceedings and if the shop belonged to him as an exclusive
owner, the respondents and especially respondent No. 1 could
not seek to evict the appellant for his personal requirement
of the suit shop. The appellate judge holding that the
respondents were accepted by the appellant as the landlords
of the suit shop, the subsequent partition decree would not
help the appellant and agreeing with the finding of the
Trial Court that there was default in payment of rent for a
period of three months, he dismissed the appeal.
The second appeal to the High Court by the appellant
was dismissed, holding that the appellant had not moved the
first appellate court with a proper application under order
41, rule 27 of the Code of Civil Procedure and as there was
no such application on the record of the case the contention
could not be entertained, and that the appellant did not
challenge the finding of the courts on the question of
default in payment of rent.
In the appeal to this Court, it was contended on behalf
of the appellant tenant that: (1) the High Court was in
error in rejecting the contention of the appellant that the
ground of personal requirement was no more available to the
respondents in view of the partition decree because not only
the landlord must prove his requirement at the commencement
of the action but the landlord for whose requirement the
action is commenced must show that his requirement continues
throughout the course of proceedings and that he had a
subsisting interest in the premises of which possession is
sought for his own use, (2) the High Court was in error in
observing that in the absence of a proper application under
order 41, rule 27 the Court could not entertain the
contention thereby sought to be raised, and that the finding
that the appellant was in default in payment of rent for a
period of two months was not questioned before it.
Allowing the appeal,
^
HELD: 1. The decree of the High Court and the first
appellate court are set aside and the case remanded to the
first appellate court, which after granting the application
under order 41, rule 27, and taking the certified copy of
the decree in the partition suit on record and after giving
an opportunity to the parties to lead any additional
evidence should decide, whether the partition decree
transfers the suit shop to ’P’ exclusively and whether the
respondents can maintain the action and are entitled to
evict the appellant on the ground of personal requirement of
respondent No. 1 and or on the ground of default. [385 G-386
B]
2. The expression ’landlord’ which has been defined in
section 2(d) of the Rent Act is an inclusive definition
couched in very wide language. This wide amplitude of the
expression has however been cut down by the explanation
appended to sub-clause (c) of sub-section (1) of section 11.
The person claiming possession on the ground of his
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reasonable requirement of the leased building must show that
he is a landlord in the sense that he is the owner of the
building and has a right to occupy the same in his own
right. A mere rent collector, though may be included in the
expression landlord in its wide amplitude cannot be treated
as landlord for the purposes of section 11(1)(c). [376 G-378
B]
369
3. The legislature by restricting the meaning of the
expression ’landlord’ for the purpose of Section 11(1)(c),
manifested its intention namely that landlord alone can sue
for eviction on the ground of his personal requirement if he
is one who has a right against the whole world to occupy the
building himself and exclude any one holding a title lesser
than his own. Such landlord who is an owner and who would
have a right to occupy the building in his own right, can
seek possession for his own use. A rent collector or an
agent is not entitled to occupy the house in his own right.
Even if such a person be a lessor and, therefore, a landlord
within the expanded inclusive definition of the expression
landlord, nonetheless he cannot seek to evict the tenant on
the ground that he wants to personally occupy the house. He
cannot claim such a right against the real owner and as a
necessary corollary he cannot seek to evict the tenant on
the ground that he wants possession of the premises for his
own occupation. [378 C, G]
In the instant case the application for additional
evidence was filed after the arguments were concluded. The
Judge had no objection in treating it to be one under Or 41
rule 27, took it on record and examined it on merits. The
High Court was clearly in error in ignoring the evidence in
second appeal on a technical consideration that a proper
application under order 41, rule 27, was not placed before
the first appellate court. [373 F, 374 C, 375 A-B]
In the instant case, there was a proper and regular
application to meet with the requirements of order 41, rule
27, CPC for additional evidence inviting the court’s
attention to a subsequent event of vital importance cutting
at the root of the plaintiff’s right to continue the action.
Coupled with it, there was evidence in the form of a
certified copy of the decree in a partition suit showing
that the respondents even if they had some shade of title to
commence action, they having lost all interest in the
property and the property having become one of exclusive
ownership of a person not a party to the proceedings were no
more entitled to continue the proceedings for their own
benefit. Both the lower appellate court and the High Court
were clearly in error in ignoring this vital piece of
evidence which goes to the root of the matter and which
would non-suit the respondents. [381 C, G]
Pasupuleti Venkateswarlu v. The Motor & General
Traders, [1975] 3 S.C.R. 958 and Lachmeshwar Prasad Shukul
v. Keshwar Lal Chaudhri, [1940] F.C.R. 85, referred to.
4. The time honoured notion that the right of re-entry
is unfettered and that the owner landlord is the sold judge
of his requirement has been made to yield to the needs of
the society which had to enact the Rent Acts specifically
devised to curb and fetter the unrestricted right of re-
entry and to provide that only on proving some enabling
grounds set out in the rent Act the landlord can re-enter.
One such ground is of personal requirement of landlord. When
examining a case of personal requirement, if it is pointed
out that there is some vacant premises with the landlord
which he can conveniently occupy, the element of need in his
requirement would be absent. To reject this aspect by saying
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that the landlord has an unfettered right to choose the
premises is to negative the very raison de’etre of the Rent
Act. If it is shown by the tenant that the landlord has some
other vacant premises in his possession, that by itself may
not be sufficient to negative the landlord’s claim but in
such a situation the court would expect the landlord to
establish that the premises which is vacant is not suitable
370
for the purpose of his occupation or for the purpose for
which he requires the premises in respect of which the
action is commenced in the Court. To say that the landlord
has an unfettered right to choose whatever premises he wants
and that too irrespective of the fact that he has some
vacant premises in possession which he would not occupy and
try to seek to remove the tenant would be unsupported by the
Rent Act. This approach would put a premium on the
landlord’s greed to throw out tenants paying lower rent in
the name of personal occupation and rent out the premises in
his possession at the market rate. To curb this very
tendency the Rent Act was enacted, and, therefore, it
becomes the duty of the Court administering the Rent Act to
bear in mind the object and intendment of the legislature in
enacting the same. The Court must understand and appreciate
the relationship between legal rules and one of the
necessities of life-shelter. [383 C-384 A]
In the instant case there are some recitals in the
judgment of the High Court which show (i) that certain
aspects have been disposed of cursorily, lacking precision,
and (ii) that a tenant who examined as many as eight
witnesses including himself to prove that the rent was paid
and who specifically pleaded that fact in reply to the
notice served by the landlords and who meticulously fought
his case, by making an application for additional evidence
at the appellate stage would not give up the contention and
if he had in fact given it up there was no justification for
still taking the matter to the highest court. The subsequent
event of partition of the properties have a direct impact on
the title of the landlord-respondents to evict the appellant
on the ground of non-payment of rent. A remand of the case
is therefore inevitable. [384 G-385 B, G]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 758 of
1978.
Appeal by Special Leave from the Judgment and Order
Decree dated 5.10.1977 of the Patna High Court (Ranchi
Bench) Ranchi in Appeal from Appellate Decree No. 204 of
1976 (R).
R.K. Garg, V.J. Francis, D.K. Garg and S.K. Jain for
the Appellant.
Sarjoo Prasad. S.N. Misra and A.N. Bardiyar for the
Respondents.
The Judgment of the Court was delivered by
DESAI, J. A tenant under a decree of eviction questions
its correctness in this appeal by special leave.
Respondents 1 and 2 are the brother’s sons of
respondent 3 Kishorilal Vishwakarma. Respondents commenced
an action for ejectment of the appellant under section 11
(2)(c) & (d) of the Bihar Buildings (Lease, Rent & Eviction)
Control Act. 1947 (’Rent Act’ for short) from a shop forming
part of holding No. 188 of Ward No. 3 within the area of
Giridih municipality in Bihar State.
371
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Claim for possession was founded on the ground mentioned in
s. 11 (1) (c) alleging that the respondents in good faith
required possession of the shop for opening an office and a
clinic by first respondent Manoharlal Sharma who by then had
become a qualified medical practitioner having obtained
M.B.B.S. degree. The additional ground on which the claim
rested was the usual one of default in payment of rent for a
period of two months and more as envisaged by s. 11 (1) (d).
Default complained of was failure to pay rent for the months
of September, October and November, 1972.
Appellant contested the suit, inter alia, contending
that he did not commit default in payment of rent for the
months of September, October and November, 1972, and that
the same was paid but no receipt was passed and that as the
respondents were avoiding statutory liability of passing the
receipt acknowledging payment of rent the appellant was
forced to send the rent by Money Order from December 1972
and he sent the same month after month, and, therefore, he
could not be dubbed a defaulter within the meaning of s.
11(1) (d). Controverting the ground of personal requirement,
the appellant contended that the property belonged to a firm
and, therefore, the same cannot be claimed for the use of
any one partner for his business other than the business of
the firm. And in any case, the respondents have number of
houses in their possession and the requirement alleged on
behalf of Manoharlal Sharma was incorrect and unwarranted.
The learned trial judge framed as many as nine issues.
He held against the appellant both on the question of
default in payment of rent and the personal requirement and
after answering some technical defences raised by the
appellant, learned trial judge decreed the suit. The
appellant preferred an appeal to the appellate authority.
When the appeal was pending before the learned Second
Additional Subordinate Judge, Giridih, the appellant filed
an application supported by an affidavit on September 28,
1976, purporting to be under order 41, rule 27, Code of
Civil Procedure contending therein that as originally
contended by him the shop belongs to a firm and in Suit No.
4 of 1974 there has been a partition of the properties
amongst the members of the firm and the suit shop has been
allotted to one Pyarelal, who is neither a plaintiff nor a
party to the proceedings and if the shop now belongs to
Pyarelal as an exclusive owner, the respondents and
especially respondent 1 Manohar Lal Sharma cannot seek to
evict the appellant for his personal requirement of the suit
shop. This application was filed
372
with an affidavit drawn at the foot of the application
itself. The learned appellate judge referred to this
application in paragraph 12 of his judgment and negatived
the contention therein raised observing that allotment of
the suit shop to Pyarelal has taken place after the suit was
filed and that as earlier the respondents were accepted by
the appellant as the landlords of the suit shop, the
subsequent partition decree would not help the appellant. He
then made a cryptic observation that ’in any view of the
matter the finding of the learned Munsif regarding personal
necessity is correct and there is no ground for
interference.’ He agreed with the finding of the trial Court
that there was default in payment of rent for a period of
three months, and, therefore, also the respondents were
entitled to a decree for eviction on the ground mentioned in
s. 11 (1) (d) of the Rent Act. Accordingly he dismissed the
appeal with costs.
A second appeal to the High Court by the tenant met
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with the same fate. It is, however, advantageous to notice
the approach of the High Court to the two contentions raised
on behalf of the appellant. The contention of the tenant
that the ground for personal requirement of respondent 1
Manoharlal Sharma no more survives because he has no
subsisting interest in the suit shop in view of the
partition decree in Suit No. 4 of 1974 was negatived
observing that the appellant had not moved the first
appellate court with a proper application under order 41,
rule 27 of the Code of Civil Procedure and as there was no
such application on the record of the case the contention
could not be entertained. Alternatively, the High Court
found it difficult to accept the contention that during the
pendency of the appeal if the house in question was allotted
to the share of one of the co-sharers of the decree (sic)
the decree which had been passed in their favour becomes
nullity and is liable to be set aside by the appellate court
on this ground alone. Relevant to the second contention the
High Court observed that the appellant did not challenge the
finding of the two courts below on the question of default
in payment of rent. Accordingly the High Court dismissed the
second appeal with costs. Hence this appeal.
Learned counsel for the appellant canvassed the same
two contentions before us which were pressed before the High
Court. It was contended that the High Court was clearly in
error in rejecting the contention of the appellant that the
ground of personal requirement was no more available to the
respondents in view of the partition decree in Suit No. 4 of
1974 because not only the landlord must prove his
requirement at the commencement of the action but
373
the landlord for whose requirement the action is commenced
must show that his requirement continues throughout the
course of proceedings and that he has a subsisting interest
in the premises of which possession is sought for his own
use. Reliance was placed in support of this submission on
Pasupuleti Venkateswarlu v. The Motor & General Traders. It
was also contended that the High Court was in error in
observing that in the absence of a proper application under
order 41, rule 27 the court could not entertain the
contention thereby sought to be raised. It was also
contended that the High Court was in error in observing that
the finding that the appellant was in default in payment of
rent for a period of two months was not questioned before
it.
Respondents 1 and 2 are the sons of one Sunderlal
Sharma. Respondent 3 is the brother of Sunderlal Sharma. One
Pyarelal is also a brother of Sunderlal Sharma and
Respondent 3 and thus an uncle of respondents 1 and 2. These
facts have become very relevant for evaluating and disposing
of the contention canvassed before us.
Action for ejectment was filed by respondents 1 and 2
Manoharlal Sharma and Motilal Sharma sons of deceased
Sunderlal Sharma, and respondent 3 Kishorilal Vishwakarma,
brother of Sunderlal Sharma, inter alia, stating that they
are the owners of the suit shop and are thus landlords
within the meaning of Rent Act and that they require
possession of the suit premises, firstly on the ground that
Manoharlal Sharma wants to open his clinic in the suit shop
and secondly, that the appellant tenant has committed
default in payment of rent for a period of two months and
more.
At the first appellate stage appellant filed an
application, in the cause title of which it is mentioned
that it is an application purporting to be under order 41
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rule 27, C.P.C. and at the foot of it there is a sworn
affidavit with reference to the contents of the application.
In this application it has been in terms stated that in suit
No. 4 of 1974 (Kishorilal Vishwakarma v. Pyarelal
Vishwakarma) for partition of the assets of the firm there
has been a compromise on August 16, 1974, and that by the
partition effected by the decree the suit shop has been
allotted to Pyarelal and thereby he became the owner and
landlord of the suit shop with reference to the appellant
and as he is neither a party to the
374
suit nor has he applied to be joined as a party to the suit,
the present respondents have no subsisting interest in the
property and, therefore, a decree for eviction on any of the
grounds mentioned in the Rent Act could not be passed in
their favour. He requested for setting aside the decree on
this ground. It was further stated in the application that
this fact being in the special knowledge of the respondents
did not come to the knowledge of the appellant and
notwithstanding the exercise of due diligence such evidence
was not within his knowledge or could not after the exercise
of due diligence be produced by him, and, therefore, he
sought to produce this additional evidence at the appellate
stage. A request was made to accept the certified copy of
the partition decree evidencing the fact alleged in the
application. The learned appellate judge did not find fault
either with the form of the application or compliance with
the technical requirement of order 41, rule 27, or in any
delay in moving the court for taking on record the
additional evidence, The learned judge of the first
appellate court disposed of the contention raised in the
application on merits as would be evident from paragraph 12
of his judgment. Not to confound the issue on this point any
more, the observation of the learned judge of the first
appellate court may be extracted;
"After the argument was heard, the deft. appellant
has filed the certified copy of the compromise decree
of P.s 4 of 1974 (page 10 begins) Relying on this
decree it has been alleged that the house in question
has now been allotted to one Pyarelal who is not party
to this suit. So, now, the puffs have no concern with
the suit house. This event had taken place after
passing of the decree. If Pyarelal was co-sharer then
other co-sharer is competent to file a suit on behalf
of the other. From the notice reply ext. 1 it will
appear that ownership of the puffs respondent of T.S.
47/73 was accepted. Once they have accepted that the
plaintiffs are the owner now the defendant appellant
can not say that the puffs are not the owner of the
suit premises. This partition decree will not help the
defendant to say that the puff do not require the house
now ? In execution of that partition decree, also the
vacant possession will be required. So, in any view of
the matter I find that the findings of the matter I
find that the findings of the learned Munsif, regarding
the personal necessity is correct and there is ground
for interference. The learned Munsif has rightly
appreciated the evidence and has come to the correct
findings."
375
It would unquestionably appear that the learned judge
entertained the application for additional evidence, took it
on record and examined it on merits.
In this background, in our opinion, the High Court was
clearly in error in ignoring this evidence in second appeal
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on a technical consideration that a proper application under
order 41, r. 27 was not placed before the first appellate
court. Here is what the High Court says:
"Whenever any additional evidence is produced
before an appellate court a regular application under
order 41, rule 27 of the Code of Civil Procedure is
filed. There is no such application in the records of
the case."
Obviously, this is contrary to record. But the High Court
appeared to be in two minds when it proceeded to entertain
the contention on merits and negatived it on merits. Says
the High Court further on this point as under:
"Apart from that, it is difficult to accept the
contention that during the pendency of the appeal if
the house in question is allotted to the share of one
of the co-sharers of the decree, the decree which had
been passed in their favour becomes nullity and is
liable to be set aside by the appellate court on this
ground alone. This aspect of the matter has (sic)
considered on several occasions by this Court where the
plaintiff, during the pendency of the suit has assigned
his interest. Even in those cases it has been held that
by mere assignment the plaintiff does not lose the
right to maintain the suit. In my view, the position
will be all the more difficult for the defendant if any
such objection is taken for the first time in the court
of appeal."
What precedents are relied upon by the High Court when
it says that the aspect required to be considered by it has
been examined on a number of occasions left us guessing
because there is no citation in the judgment. If the
precedent relied upon was quoted in the judgment we could
have profitably examined the precedent itself. In the
absence of it the contention being a pure question of law
will have to be examined on its own merits.
The procedural conundrum may be cleared out at the
threshold. Was there a proper application before the
appellate court under
376
order 41, rule 27. It must be answered in the affirmative.
The application Annexure II page 36 of the record recites in
its title as: ’Petition under order 41, rule 27 of the Civil
Procedure Code’. It is founded on an affidavit. It is a well
recognised practice commonly adopted in courts that where an
application is required to be supported by an affidavit the
application is drawn up and at the foot of it an affidavit
is sworn. Even taking the most technical view of the
requirement of order 41, r.27, C.P.C. the petition
purporting to be under order 41 rule 27 meets with the
requirement of the situation. The contention of delay in
moving the application will be presently examined but the
High Court could not have rejected the contention raised by
the appellant on the ground that a proper application under
order 41, rule 27, is not to be found on record. To some
extent this observation would indicate that the record of
the case was not examined with the thoroughness as is
expected in disposing of the appeal. In fact, the first
appellate court whose grievance was that the application was
filed after the arguments were concluded, has had no
objection in treating the application to be one under order
41, rule 27. It has been so treated and has been disposed of
on merits as per the passage from the judgment extracted
hereinbefore. The High Court, therefore, was squarely in
error in rejecting the contention on the narrow ground that
there was no proper application under order 41, rule 27.
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Now, probing the merits of the contention, the first
thing that stares in the face is whether where a suit is
filed by a person claiming to be landlord on the ground that
he in good faith requires the suit premises for his own use
and occupation, would he still be entitled to a decree for
possession on this ground even if during the course of
proceedings his interest in the suit premises has come to an
end and on the date of the final decree he had no subsisting
interest in the suit premises? In other words, how should
the Court approach a proceeding under the Rent Act while
taking into consideration the subsequent events which would
non-suit the plaintiff?
The expression ’landlord’ has been defined in s. 2 (d)
of the Rent Act which reads as under:
"landlord" includes the persons who for the time
being is receiving, or is entitled to receive, the rent
of a building whether on his own account or on behalf
of another, or on account or on behalf or for the
benefit, or himself and others or as an agent, trustee,
executor, administrator,
377
receiver or guardian or who would so receive the rent,
or be entitled to receive the rent if the building were
let to a tenant."
The inclusive definition is couched in very wide language.
However this wide amplitude of the expression has been cut
down by the explanation appended to sub-clause (c) of sub-
section (1) of s. 11 which reads a under:
11. Eviction of tenants:
(a) Notwithstanding anything contained in any
contract or law to the contrary but subject
to the provisions of the Industrial Dispute
Act, 1947 and to those of section 12, where a
tenant is in possession of any building, he
shall not be liable to eviction there-from
except in execution of a decree passed by the
Court on one or more of the following
grounds;-
... ... ...
(c) Where the building is reasonably and in good
faith required by the landlord for his own
occupation or for the occupation of any
person for whose benefit the building is held
by the landlord;
Provided that where the Court thinks
that the reasonable requirement of such
occupation may be substantially satisfied by
evicting the tenant from a part only of the
building and allowing the tenant to continue
occupation of the rest and the tenant agrees
to such occupation the Court shall pass a
decree accordingly, and fix proportionately
fair rent for the portion in occupation of
the tenant, which portion shall thenceforth
constitute the building within the meaning of
clause (aa) of section 2, and the rent so
fixed shall be deemed to be the fair rent
fixed under section 5;
Explanation: In this clause the word
"landlord" shall not include an agent
referred to in clause (d) of section 2."
Therefore, while taking advantage of the enabling provision
enacted in s.11 (1) (c), the person claiming possession on
the ground of
378
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his reasonable requirement of the leased building must show
that he is a landlord in the sense that he is owner of the
building and has a right to occupy the same in his own
right. A mere rent collector, though may be included in the
expression landlord in its wide amplitude cannot be treated
as a landlord for the purposes of s. 11 (1) (c). This
becomes manifestly clear from the explanation appended to
the sub-section. By restricting the meaning of expression
landlord for the purpose of section 11(1)(c), the
legislature manifested its intention namely that landlord
alone can seek eviction on the ground of his personal
requirement if he is one who has a right against the whole
world to occupy the building himself and exclude any one
holding a title lesser than his own. Such landlord who is an
owner and who would have a right to occupy the building in
his own right, can seek possession for his own use. The
latter part of the section envisages a situation where the
landlord is holding the buildings for the benefit of some
other person but in that case landlord can seek to evict
tenant not for his personal use but for the personal
requirement of that person for whose benefit he holds the
building. The second clause contemplates a situation of
trustees and cesti que trust but when the case is governed
by the first part of sub clause (c) of sub-section (1) of
s.11, the person claiming possession for personal
requirement must be such a landlord who wants possession for
his own occupation and this would imply that he must be a
person who has a right to remain in occupation against the
whole world and not someone who has no subsisting interest
in the property and is merely a rent collector such as an
agent, executor, administrator or a receiver of the
property. For the purposes of s. 11(1)(c) the expression
landlord could, therefore, mean a person who is the owner of
the building and who has a right to remain in occupation and
actual possession of the building to the exclusion of
everyone else. It is such a person who can seek to evict the
tenant on the ground that he requires possession in good
faith for his own occupation. A rent collector or an agent
is not entitled to occupy the house in his own right. Even
if such a person be a lessor and, therefore, a landlord
within the expanded inclusive definition of the expression
landlord, nonetheless he cannot seek to evict the tenant on
the ground that he wants to personally occupy the house. He
cannot claim such a right against the real owner and as a
necessary corollary he cannot seek to evict the tenant on
the ground that he wants possession of the premises for his
own occupation. That can be the only reasonable
interpretation one can put on the ingredients of sub-clause
(c) of s. 11(1) which reads: "Where building is reasonably
and in good faith required by the landlord
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for his own occupation.. ". Assuming that the expression
’landlord’ has to be understood with the same connotation as
is spelt out by the definition clause, even a rent collector
or a receiver of the property appointed by the Court in
bankruptcy proceedings would be able to evict the tenant
alleging that wants the building for his own occupation, a
right which he could not have claimed against the real
owner. Therefore, the explanation to clause (d) which cuts
down the wide amplitude of the expression ’landlord’ would
unmistakably show that for the purposes of clause (c) such
landlord who in the sense in which the word ’owner’ is
understood can claim as of right to the exclusion of
everyone, to occupy the house, would be entitled to evict
the tenant for his own occupation.
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The next step to be taken is whether where a person
claiming to be such a landlord has sought to evict the
tenant for his own occupation of the building but lost his
interest in entirety in the building during the pendency of
the appeal which is a continuation of the suit. Would he
still be entitled to maintain or continue the action after
the cessation or extinguishment of his interest in the
building? To examine this contention on merits one feature
of the proceedings under the Rent Act may be taken into
consideration. To what extent and in what circumstances the
court can take notice of events subsequent to the
institution of the action is the core problem. This is no
more res integra and need not be examined in depth. In
Pasupuleti Venkataeswarlus’ case this Court examined this
question in relation to a proceeding under the Andhra
Pradesh Buildings (Lease, Rent & Eviction) Control Act,
1960. The landlord in that case sought to evict the tenant
as he wanted to start his own business in the demised
premises. In other words, action was for eviction for
personal requirement. In the zig-zag course of proceedings
it transpired that subsequent to the commencement of the
action the landlord had come into possession of another shop
which would meet with his requirement and on this subsequent
event tenant requested the court to non-suit the plaintiff.
At that stage the proceedings were pending before the High
Court in a revision petition at the instance of the landlord
questioning a remand to the trial court by the first
appellate court for investigation of certain facts. In this
revision at the instance of the landlord the High Court took
notice of the subsequent event that the landlord’s
requirement had been fully satisfied as he had come in
possession of another shop. In appeal by the landlord to
this Court, a serious exception was taken that the High
Court could not have taken into consideration an event
subsequent to the commencement of the proceedings and non
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suit the landlord and that too at a stage when the
proceedings were pending in revision at the instance of the
landlord. Negativing this contention and dismissing the
appeal this Court, after referring to the decision in
Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhri quoted
with approval the following passage from Patterson v. State
of Alabama :
"We have frequently held that in the exercise of
our appellate jurisdiction we have power not only to
correct error in the judgment under review but to make
such disposition of the case as justice requires. And
in determining what justice does require, the Court is
bound to consider any change, either in fact or in law,
which has supervened since the judgment was entered."
In the leading judgment in Lachmeshwar Prasad Shukul’s case
Varadachariar, J. observed that an appeal being in the
nature of a re-hearing the Courts in India have in numerous
cases recognised that in moulding the relief to be granted
in a case on appeal, the Court of appeal is entitled to take
into account even facts which have come into existence after
the decree appealed against was made. Krishna Iyer, J.
summed up the position in Pasupuleti Venkateswarlu’s case:
"It is basic to our 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
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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 binding the rules of
procedure, where no specific provision or fairplay is
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
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justice... 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."
To sum up, there was a proper and regular application to
meet with the requirements of order 41 rule 27, CPC for
additional evidence inviting the Court’s attention to a
subsequent event of vital importance cutting at the root of
the plaintiff’s right to continue the action. Coupled with
it, there was evidence in the form of a certified copy of
the decree showing that the plaintiffs, even if they had
some shade of title to commence action, they having lost all
interest in the property and the property having become one
of exclusive ownership of a person not a party to the
proceedings, were no more entitled to continue the
proceedings for their own benefit.
Have the first appellate court and the High Court acted
in accordance with law in ignoring this subsequent event of
vital importance ? The first appellate court, as pointed out
earlier, proceeded to examine the contention on merits and
rejected it on the ground that this being an event
subsequent to the passing of the decree by the trial court,
no notice could be taken of it, a view contrary to the law
laid down by this Court. Same is true of the High Court when
it said that even if the landlord who commenced action lost
all interest in the property subsequent to the passing of
the decree, the decree does not become a nullity and at any
rate no note of the subsequent events can be taken in the
absence of a proper application under order 41, rule 27,
C.P.C. But the next observation of the High Court that where
the plaintiff landlord’s interest in the property is
extinguished subsequent to the decree by the trial court, he
does not lose his right to maintain and continue the action,
is opposed to the very scheme of the Rent Act and the
provisions contained in ss. 11(1)(c) and 12. Both the courts
were, therefore, clearly in error in ignoring this vital
piece of evidence which goes to the root of the matter and
would surely non-suit the plaintiffs.
Once this subsequent event of landlord’s interest in
the property getting extinguished as the property in
question is allotted as an exclusive owner to a sharer upon
a partition amongst co-sharers, is properly evaluated,
unless some proper explanation is offered by the landlords
who are parties to the proceedings, the plaintiffs are
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liable to be non-suited. This does not require much of a
discussion because plaintiffs sought possession for personal
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requirement of respondent 1 Manohar Lal Sharma. Monohar Lal
Sharma wanted to start his clinic, as he is a qualified
medical practitioner, in the suit premises. Manohar Lal
Sharma is neither an owner nor a co-owner nor he has any
interest in the suit property since the date of partition
effected by compromise between the co-sharers in Suit No.
4/75. If action were to start today a or day after the
decree for partition, could Manohar Lal Sharma ever file a
suit for evicting the present appellant from the suit shop
on the ground that he wanted to start his clinic in the suit
shop ? If Manoharlal Sharma can bring such an action he can
as well evict any tenant from any premises with which he has
no connection. Even if at the commencement of the action
Manoharlal Sharma was a co-owner alongwith his brother and
uncle and, therefore, he had a semblance of title to
commence action for eviction, once the co-owner parted
company, partitioned property by metes and bounds and the
suit property came to be allotted to Pyarelal as an
exclusive owner. Manoharlal Sharma cannot claim eviction of
the tenant from such property in which he has no subsisting
interest. And even if this event occurred subsequent to the
passing of the decree by the trial court, this subsequent
event should have been noticed at the appellate stage
because the appeal is nothing else but a continuation of the
suit and in a proceeding under the Rent Act the relief has
to be moulded according to the situation on the date of the
decree; the decree would mean the decree which is final and
not correctible by any judicial proceeding. Manoharlal
Sharma, therefore, cannot seek to evict the tenant for his
personal requirement. Therefore, the suit for eviction under
s.11(1)(c) would ordinarily fail on this ground. However, as
the fresh evidence is being taken into consideration and as
both the appellate courts and the High Court, have erred in
approaching the matter by ignoring the subsequent event, it
would be presently pointed out that in order to do justice
between the parties the matter will have to be remanded to
the first appellate court.
Before turning to the next topic, a word about the
judicial approach to the question of personal requirement of
the landlord under the Rent Act would not be out of place.
The learned judge of the first appellate court while
upholding the claim of personal requirement of respondent 1
has observed as under:
"It is for the plaintiffs to decide whatever they
think fit and proper. It is not for the defendant
to suggest as
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to what they should do. The defendant has led
evidence to show that the plaintiffs have got some
more houses at Girdih.... The defendant appellant
has also filed certified copy of judgment of one
suit No. 47/73 which is Ext. only to show that
plaintiffs have got a decree for eviction with
respect to the other house at Giridih. I have
already pointed out earlier that it is for the
plaintiffs to decide which of the houses is
suitable for them. It is not for the defendant to
suggest that the house which will fall vacant in
the near future is most suitable house for the
plaintiffs".
This approach betrays a woeful lack of consciousness
relatable to circumstances leading to enactment of Rent Acts
in almost all States in the country. The time honoured
notion that the right of re-entry is unfettered and that the
owner landlord is the sole judge of his requirement has been
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made to yield to the needs of the society which had to enact
the Rent Acts specifically devised to curb and fetter the
unrestricted right of re-entry and to provide that only on
proving some enabling grounds set out in the Rent Act the
landlord can re-enter. One such ground is of personal
requirement of landlord. When examining a case of personal
requirement, if it is pointed out that there is some vacant
premises with the landlord which he can conveniently occupy,
the element of need in his requirement would be absent. To
reject this aspect by saying that the landlord has an
unfettered right to choose the premises is to negative the
very raison de’etre of the Rent Act. Undoubtedly, if it is
shown by the tenant that the landlord has some other vacant
premises in his possession, that by itself may not be
sufficient to negative the landlord’s claim but in such a
situation the Court would expect the landlord to establish
that the premises which is vacant is not suitable for the
purpose of his occupation or for the purpose for which he
requires the premises in respect of which the action is
commenced in the Court. It would, however, be a bald
statement unsupported by the Rent Act to say that the
landlord has an unfettered right to choose whatever premises
he wants and that too irrespective of the fact that he has
some vacant premises in possession which he would not occupy
and try to seek to remove the tenant. This approach would
put a premium on the landlord’s greed to throw out tenants
paying lower rent in the name of personal occupation and
rent out the premises in his possession at the market rate.
To curb this very tendency the Rent Act was enacted and,
therefore, it becomes the duty of the Court administering
the Rent Act to bear in mind the object and intendment of
the legislature in enacting the
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same. The Court must understand and appreciate the
relationship between legal rules and one of necessities of
life-shelter-and the way in which one part of the society
exacts tribute from another for permission to inhabit a
portion of the globe. In ’The Sociology of Law’, edited by
Pat Carlen, the author examines the rent and rent
legislation in England and Wales and observes as under:
"The prevailing paradigms of neo-classical
economics and empiricist political theory have
determined the conceptual insularity of law and legal
institutions, with the result that they and other
social events appear as random existences independent
of their historical formation. The force of any theory
of law must of course lie in its explanatory power, and
this in turn depends on the wider image of social
relations which produces it".
It was, however, contended on behalf of the respondents
that even if in view of the subsequent event the plaintiffs
landlords were not entitled to recover possession on the
ground set out in s.11(1)(c) yet the respondents would still
be entitled to evict the appellant on the ground mentioned
in s. 11(1) (d) in as much as all the courts have
concurrently found that the appellant was in default of
payment of rent for a period of three months, i. e.
September, October and November, 1972, and that this finding
was not even questioned before the High Court as mentioned
in paragraph 3 of the judgement of the High Court. The
appellant has set out ground No. V in his petition for
special leave in the following terms:
"Because the High Court erred in holding that the
findings regarding default in payment of rent and of
personal necessity were not challenged before the High
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Court".
Undoubtedly, what the High Court states in its judgment on
the question whether a particular finding was challenged or
not challenged is entitled to highest respect at our hands
and must ordinarily be always accepted. We have lingering
hesitation in the facts of this case for two specific
reasons: (i) that there are some recitals in the judgment of
the High Court specifically referred to herein before which
show that certain aspects have been disposed of cursorily,
lacking precision; and (ii) that a tenant who examined as
many as eight witnesses including himself to prove that the
rent was paid and who specifically pleaded that fact in
reply to the notice served by the landlords and who
meticulously fought his case by making an application for
additional evidence at the appellate
385
stage would not give up the contention and if he had in fact
given it up there was no justification for still taking the
matter to the highest court. Even then we would have
overlooked the contention to the contrary and accepted what
has been stated in the judgment but for the fact that
subsequent event stated hereinabove may have a direct impact
on the title of the landlords-respondents to evict the
appellant on the ground of non-payment of rent.
If on examining and evaluating the contents of the
certified copy of the decree in partition suit No. 4/74 it
is established conclusively that the property has been
exclusively allotted to Pyarelal who has not applied to be
joined as party to these proceedings though he has filed
some affidavit in this appeal before this Court and if no
reservation is made in the decree for continuation of the
proceedings for recovering possession on the ground of non-
payment of rent in favour of the present respondents nor
have the present respondents undertaken any liability to
continue the proceedings on behalf of Pyarelal Sharma for
the limited purpose of recovery of rent, in our opinion it
would be extremely doubtful if the respondents can still
maintain the action for recovering rent and for possession
on the grounds mentioned in s. 11(1)(c) & (d). That aspect
has not at all been examined either by the first appellate
Court or by the High Court. If ’A’, a landlord commences
action for eviction against his tenant on the only ground of
non-payment of rent and during the pendency of the
proceedings transfers the property lock stock and barrel to
a third person and if the third person is not before the
Court, without finally expressing any opinion because the
remand is contemplated, it is just unthinkable that such a
landlord can continue the suit even after he had no interest
in the property. The aspect may have to be examined in The
background of the contract between the landlord who
commenced the action and his transferee, or the transferee
having reserved some right came to the Court for being
impleaded as a party to continue the action and his, right
to continue, may be examined. These aspects arc not examined
by any Court though decision on them goes to the root of the
matter. Therefore, a remand is inevitable in the
circumstances of this case.
Accordingly, we allow this appeal and set aside the
decree of the High Court and the first appellate Court and
remand the case to the first appellate Court which, after
granting the application under order 41, r. 27 and taking
the certified copy of the decree in partition suit No. 4/74
on record and after giving an opportunity to the parties
before it to lead any additional evidence pursuant to this
additional evidence, would decide the following two
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questions:
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(1) Does the partition decree transfer the suit
shop to Pyarelal Sharma exclusively ?
(2) If yes, can the respondents (plaintiffs)
maintain action and are entitled to evict the appellant
(defendant) on the ground of personal requirement of
Manohar Lal Sharma (respondent 1) and/or on the ground
of default as contemplated by s. 11(1)(d) of the Rent
Act ?
On the evidence on these issues the Court may mould the
final relief consistent with its findings.
With this direction the appeal is remanded to the first
appellate Court. In the circumstances of the case there will
be no order as to costs.
N.V.K. Appeal allowed.
387