Full Judgment Text
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PETITIONER:
HASMAT RAI & ANR.
Vs.
RESPONDENT:
RAGHUNATH PRASAD
DATE OF JUDGMENT28/04/1981
BENCH:
DESAI, D.A.
BENCH:
DESAI, D.A.
PATHAK, R.S.
VENKATARAMIAH, E.S. (J)
CITATION:
1981 AIR 1711 1981 SCR (3) 605
1981 SCC (3) 103 1981 SCALE (1)714
CITATOR INFO :
R 1985 SC 207 (16)
E&D 1987 SC 406 (6)
R 1987 SC 741 (12,13)
D 1988 SC 30 (5)
RF 1991 SC1760 (20,23)
RF 1992 SC 700 (4)
ACT:
Madhya Pradesh Accommodation Control Act, 1961-Scope of
section 12(1) (f)-Bonafide requirement under section
12(1)(f)-Landlord filing two eviction suits and acquiring
possession of a major portion of the suit premises through
an eviction order passed in one of them-Whether this
acquisition amounts to the landlord "has a reasonably
suitable non-residential accommodation of his own in his
occupation in the city or town concerned’ within the meaning
of section 12(1)(f) of the Act-Noticing of such event
subsequent to the passing of the decree for eviction in the
other eviction suit, whether a must by the Court-Propriety
of refusal of leave to amend the written statement under
order VI rule 17 Civil Procedure Code by the High Court.
HEADNOTE:
The respondent-landlord filed two eviction suits for
recovery of possession of a non-residential building which
were in occupation of a firm Goraldas Parmanand and the
appellant-tenant. The portion occupied by the appellant
including the frontage was 7x22. In the view of the fact
that the landlord obtained eviction order against the firm
Goraldas Parmanand on the ground that the building was
required for the purpose of reconstruction and repairs and
also for bona fide requirement, in the later eviction suit
filed against the appellant, in para 4 of the plaint the
landlord stated that he was in possession of a major portion
of the non-residential building which he obtained from the
firm M/s. Goraldas Parmanand. The appellant contested the
eviction suit filed against him on the ground, (a) that the
premises was not in dilapidated condition and did not,
therefore, need reconstruction and repairs and (b) that the
landlord in view of his own admission in the plaint at para
4 has a reasonable suitable non-residential accommodation of
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his own and therefore cannot claim his eviction under
section (12)(1)(f) of the Madhya Pradesh Accommodation
Control Act, 1961.
The trial court rejected the tenant’s pleas and passed
an eviction order. In appeal the first appellate court,
while confirming the finding of the trial court that the
building was in a dilapidated condition and required re-
construction and repairs, held that even though the landlord
obtained a decree against the firm Goraldas Parmanand, he
had not got actual possession, as the litigation was still
pending and, therefore, the plaintiff’s requirements of the
whole building was established.
In the second appeal before the High Court, an
application under Order VI, Rule 17, Code of Civil
Procedure, was made praying for an amendment to the written
statement alleging that the firm Goraldas Parmanand has
vacated the entire portion of the premises in his possession
and the plaintiff-landlord has obtained actual possession of
a major portion of the building and if this aspect was taken
into consideration the plaintiff-landlord would not be
entitled to a decree for eviction under section 12(1)(f) of
the Act. The High Court rejected
606
the application observing that the adjoining portion
occupied by firm Goraldas Parmanand was vacated by the firm
as for back as in the year 1972 and, therefore, the
application for amendment filed 3-1/2 years after the filing
of the second appeal must be rejected. Further it was of the
view that the definition of "tenant" in the Madhya Pradesh
Act would not enable a tenant, though in possession but
against whom a decree or order for eviction has been made,
to invite the court to take notice of events subsequent to
the passing of the decree for eviction by the trial court.
The High Court, accordingly confirmed the decree for
eviction hence, the appeal by the tenant after obtaining
special leave of the Court.
Allowing the appeal and remanding the matter to the
first appellate court with directions, the Court
^
HELD: 1. Before an allegation of fact to obtain the
relief required is permitted to be proved, the law of
pleadings require that such facts have to be alleged and
must be put in issue. Any amount of proof offered without
pleadings is generally of no relevance. In order to be able
to seek eviction of a tenant under section 12(1)(f) of the
Madhya Pradesh Accommodation Control Act, 1961, the landlord
has to allege and establish (i) that he bonafide requires
the accommodation let to the tenant for non-residential
purposes for the purpose of continuing or starting his
business and (ii) that he has no other reasonably suitable
non-residential accommodation of his own in his occupation
in the city or the town concerned. The burden to establish
both the requirements of section 12(1)(f) is squarely on the
landlord. [610 H, 611 A, 612 D and F]
2. The application under Order VI Rule 17, Civil
Procedure Code, in view of the averments in the written
statement is wholly superfluous. However, in view of the
pleadings in the instant case, it must be granted because
"the burden of proof of establishing that the landlord was
not in possession of a reasonably suitable accommodation in
the same town was on the plaintiff" it was wrongly rejected
by the High Court on untenable ground that the defendant-
appellant was guilty of delay and laches ignoring
incontrovertible admitted position which would non-suit the
respondent-plaintiff. [613 E-G]
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3:1. The definition of expression "tenant" in the
Madhya Pradesh Accommodation Control Act, 1961 excludes from
its operation a person in possession against whom any order
or decree for eviction has been made. The decree means the
decree of the final court. This is so because once an appeal
against decree or order of eviction is preferred, the appeal
is a continuation of suit. [615 C, 616 B]
3:2. When an action is brought by the landlord under
Rent Restriction Act for eviction on the ground of personal
requirement, his need must not only be shown to exist at the
date of the suit, but must exist on the date of appellate
decree, or the date when a higher court deals with the
matter. During the progress and passage of proceeding from
court to court if subsequent events occur which if noticed
would non-suit the plaintiff. the court has to examine and
evaluate the same and mould the decree accordingly. The
tenant is entitled to show that the need or requirement no
more exists by pointing out such subsequent events, to the
court including the appellate court. Otherwise the landlord
would
607
derive an unfair advantage, and it would be against the
spirit or intendment of Rent Restriction Act which was
enacted to fetter the unfettered right of re-entry. In such
a situation it would be incorrect to say that as decree or
order for eviction is passed against the tenant he cannot
invite the court to take into consideration subsequent
events. But the tenant can be precluded from so contending
when decree or order for eviction has become final. [616 C-
G]
Pasupuleti Venkateswarlu v. The Motor and General
Traders, [1975] 3 S.C.R. 958, followed.
Taramal v. Laxman Sewak and Ors., 1971 Madhya Pradesh
Law Journal p. 888, overruled.
3:3. In the instant case; (i) relying on the admission
of the plaintiff himself that he has in his possession a
shop admeasuring 18/x68 plus 7/x68 forming part of the same
building and his failure to state that the space with 18
frontage is neither suitable not reasonably suitable nor
sufficient for starting his business as Chemist and
Druggist, the plaintiff’s suit for eviction on the ground
mentioned in section 12(1)(f) of the Madhya Pradesh Act must
fail; (ii) the finding of the courts below that the
respondent requires possession of the whole of the building
including the one occupied by the tenant for starting his
business as Chemist and Druggist as also for his residence
is vitiated beyond repair. The observation of the High Court
that the remaining portion of the premises would be used by
the landlord for his residence and even though the portion
utilised for the purpose of running the business would be
smaller compared to the one to be utilised for the residence
it would still not be violative of sub-section (7) of
section 12 because such a composite user would not radically
change the purpose for which the accommodation was let, is
contrary to records and pleadings. [618 B-C, D-F, 619 B-C]
4:1. In order to obtain possession under section
12(1)(h) of the Madhya Pradesh Act the landlord has to
establish his bonafide requirement of the accommodation in
possession of the tenant for the purpose of building or
rebuilding or making thereto any substantial additions or
alterations and must further show that such building or re-
building or alterations cannot be carried out without the
accommodation being vacated. If the landlord succeeds in his
prayer for possession on the ground mentioned in section
12(1)(h), it would be necessary for the court to give
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appropriate directions under section 18 of the Act. [619 F-
G, 621 BC]
4:2. Here, as the matter has not been examined from
this angle by any court, even though the litigation is
pending for a long time, the case requires to be remanded to
the first appellate court to ascertain: (i) whether the
landlord is interested in re-constructing that portion of
the building which is in possession of the tenant as demised
premises; (ii) whether the landlord would be in a position
to reconstruct the building in his possession without the
tenant being required to vacate the demised premises and
(iii) if the first two queries are answered in favour of the
landlord, what should be the appropriate directions to be
given in favour of the tenant as enjoined by section 18 of
the Act. [621 C-F]
608
Per Pathak, J. (Concurring)
1. In a proceeding for the ejectment of a tenant on the
ground of personal requirement under a statute controlling
the eviction of tenants, unless the statute prescribes the
contrary the requirement must continue to exist on the date
when the proceeding is finally disposed of, either in appeal
or revision, by the relevant authority. Here, the High Court
should have allowed the application for amendment of the
written statement under Order VI Rule 17, Civil Procedure
Code. [624 E-F]
2. Before the need for personal residence can be held
proved, several considerations need to be proved under
section 12(1)(e) of the Act. The omission to draw the
attention of the High Court to the fact that the need for
personal residence was never pleaded in the plaint led the
High Court to fall into error in taking this element into
account. [625 B-C]
Per Contra:
3:1. In the instant case, it is clear from the
concurrent findings of the courts below that (a) the
respondent has made out his case under section 12 (1)(h) of
the Act that he requires the building including the portion
occupied by the appellants for the re-construction of the
front portion and repairs to the rear portion and that
necessitates that the appellants vacate their accommodation
and (b) the respondent needs a portion of the building for
starting the business of a medicine shop. [625 E-G]
3:2. Whether or not the shop should be located in the
front portion of the building and what should be the
dimensions of the proposed Chemist and Druggist shop will
turn on the evidence adduced by the parties in that behalf,
Giving a finding on this point, in the circumstances of this
case, is pre-eminently a task to be entrusted to a
subordinate court. The questions for consideration by the
appellate court are: (i) what should be the location of the
shop and what should be the dimensions in the matter and
(ii) availability of the benefit under section 18 of the Act
to the appellants. [625 D-E]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1108 of
1976.
Appeal by special leave from the judgment and order
dated the 17th April 1976 of the Madhya Pradesh High Court
in Second Appeal No. 113 of 1969.
S.K. Mehta, P.N. Puri and E.M.S. Anam for the
Appellants.
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P.P. Juneja for the Respondent.
The following Judgments were delivered
DESAI, J. A tenant under a decree of eviction is the
appellant in this appeal by special leave.
609
Respondent landlord filed a suit for recovery of
possession of premises being a small shop admeasuring 7’X
22’ forming part of a big non-residential building situated
in Sadar Bazar, Bilaspur town in Madhya Pradesh on two
grounds, to wit: (i) that he (landlord) intended to open a
medicine shop and he had no other reasonably suitable
accommodation for the same in the town; and (ii) that he
(landlord) required the suit building for the purpose of
reconstruction and repairs which could not be carried out
unless it was vacated by the defendant. The tenant resisted
the suit pointing out that the landlord on his own admission
as set out in plaint para 4 was in possession of a major
portion of a non-residential building of which he acquired
possession from the firm of Goraldas Parmanand which
accommodation was sufficient for starting the business of
Chemists and Druggists shop. It was also contended that the
building was not in a dilapidated condition and did not need
reconstruction and repairs.
The trial court recorded a finding that the building
was in a dilapidated condition and reconstruction of it was
essential and the landlord had sufficient funds to undertake
reconstruction. On the question of personal requirement of
plaintiff to start a medicine shop, the trial court recorded
a finding that in the front portion of building landlord
would start his business as Chemists and Druggists and the
rear of the building would be utilized by him for his
residence. It was further held that as the landlord’s
requirement was a composite one in that he wanted to
reconstruct the building and then use the whole of it for
himself, therefore, the tenant was not entitled to be
inducted in the reconstructed building which he would have
been entitled to claim under section 18 of the Madhya
Pradesh Accommodation Control Act, 1961 (’Act’ for short).
An appeal by the tenant to the District Court elicited
in para 20 a finding that though the landlord was studying
he might choose his career for business after he completed
his education and he had got Rs. 8,000 in a fixed deposit
account in a bank and even though he obtained a decree
against the firm of M/s. Goral Parmanand he had not got
actual possession as the litigation was still pending and,
therefore, the plaintiff’s requirement of the whole building
was established. The finding that the house was in
dilapidated condition and required reconstruction was
affirmed.
When the matter reached the High Court in second appeal
by the tenant an application under Order VI, rule 17, Code
of Civil
610
Procedure, was made praying for an amendment to the written
statement alleging that the firm Goraldas Parmanand has
vacated the whole of the remaining portion of the building
excluding the premises in possession of the tenant measuring
7’ X 22’ and that the plaintiff has obtained actual
possession of the same and if this aspect was taken into
consideration the plaintiff landlord would not be entitled
to a decree for eviction under s. 12(1)(f) of the Act. The
High Court rejected the application observing that the
adjoining portion occupied by firm Goraldas Parmanand was
vacated by the firm as far back as in the year 1972 and
therefore the application for amendment filed 3 1/2 years
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after the filing of the appeal must be rejected on the
ground of delay and laches. Further, despite the judgment of
this Court in Pasupuleti Venkateswarlu v. The Motor and
General Traders, the High Court felt considerable hesitation
in taking note of this event subsequent to the passing of
the decree for eviction by the trial court because of its
earlier decision in Taramal v. Laxaman Sewak and Ors in
which it was held that the definition of ’tenant’ in the Act
would not enable a tenant, though in possession but against
whom a decree or order for eviction has been made, to invite
the Court to take notice of events subsequent to the passing
of the decree for eviction by the trial court. The decision
of this Court was distinguished on the ground that the
definition of the expression ’tenant’ in Andhra Pradesh
Building (Lease Rent and Eviction) Control Act, 1960, was
somewhat different and was wide enough to include such
persons. The High Court accordingly rejected the application
and dismissed the second appeal confirming the decree for
eviction.
Section 12(1)(f) under which eviction of the tenant is
sought by the landlord reads as under:-
"that the accommodation let for non-residential
purposes is required bona fide by the landlord for the
purpose of continuing or starting his business or that
of any of his major sons or unmarried daughters if he
is the owner thereof or for any person for whose
benefit the accommodation is held and that the landlord
or such person has no other reasonably suitable non
residential accommodation of his own in his occupation
in the city or town concerned."
In order to be able to seek eviction of a tenant under s.
12(1)(f) the landlord has not only to establish that he bona
fide requires the
611
accommodation let to the tenant for non-residential purposes
for the purpose of continuing or starting his business but
he must further show that the landlord has no other
reasonably suitable nonresidential accommodation of his own
in his occupation in the city or the town concerned.
The landlord in this case seeks eviction of the tenant
from a building let for non-residential purpose. He can
obtain possession either for continuing or starting his
business. He was a student at the relevant time. He appeared
to have completed his education thereafter. It is stated in
the plaint unambiguously that he wanted to start business by
opening a medicine shop. In other words, he wanted to start
a Chemist and Druggist shop. He must, therefore, show that
he has not got in his possession a reasonably suitable non-
residential accommodation of his own in his occupation in
the town of Bilaspur.
The suit building, as earlier observed, is in the city
of Bilaspur and situated in Sadar Bazar, obviously a
business locality. Respondent-landlord claims to be the
owner of the whole building. The suit premises in possession
of the tenant in which he is carrying on a small kirana shop
admittedly admeasures 7 frontage on the main road and 22 in
depth. In other words it is 7’X 22’. The whole building of
which demised premises form a small part appears to be
having a frontage of 28. 3 passage has to be excluded. The
premises in possession of the tenant has a frontage of 7.
The length of the building or what is styled as depth was
given out to us as 90 by learned counsel for respondent-
landlord. 18’ frontage with 90’ depth was thus in possession
of firm Goraldas Parmanand. Respondent landlord had also
initiated proceedings for obtaining possession of the
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premises occupied by firm Goraldas Parmanand on the same
ground, namely, that he wanted to start his business of
Chemists and Druggists in the building.
The question is whether the premises occupied by firm
Goraldas Parmanand has been vacated by the firm. If the
answer is in affirmative, the respondent landlord has thus
obtained vacant possession of the whole of the premises
occupied by firm Goraldas Parmanand. Looking to the map
annexed to the plaint and the evidence led in the case and
the dimensions of the premises stated at the hearing of this
appeal the area vacated by the previous tenant would be
18’X90’ plus portion at the back of the premises occupied by
the present appellant which would be 7’X 68’ and it
612
has come in possession of the respondent. The last question
would be if landlord obtained vacant possession subsequent
to the decree passed against the present appellant tenant by
the Trial Court, whether the subsequent event could be
noticed by the court for moulding the decree against the
present appellant tenant.
Section 12 starts with a non-obstante clause thereby
curtailing the right of the landlord to seek eviction of the
tenant which he might have under any other law and the right
of eviction is made subject to the overriding provision of
section 12. It is thus an enabling section. In order to
avail of the benefit conferred by section 12 to seek
eviction of the tenant the landlord must satisfy the
essential ingredients of the section. The landlord in this
case seeks eviction of the tenant under section 12(1)(f). He
must, therefore, establish (i) that he requires bona fide
possession of a building let for non-residential purpose for
continuing or starting his business; and (ii) that he has no
other reasonably suitable non-residential accommodation of
his own in his occupation in the city or town concerned. The
burden to establish both the requirements of section
12(1)(f) is squarely on the landlord. And before an
allegation of fact to obtain the relief required is
permitted to be proved, the law of pleadings require that
such facts have to be alleged and must be put in issue.
Ordinarily, therefore, when a landlord seeks eviction under
section 12(1)(f) the court after satisfying itself that
there are proper pleadings must frame two issues namely (i)
whether the plaintiff landlord proves that he bona fide
requires possession of a building let to the tenant for non-
residential purpose for continuing or starting his business,
and (ii) whether he proves that he has no other reasonably
suitable non-residential accommodation of his own in the
city or town concerned. Without elaborating we must notice a
well established proposition that any amount of proof
offered without pleadings is generally of no relevance.
Turning to the pleadings in this case the plaintiff in
para 6 of the plaint has stated as under:-
"The plaintiff intends to start his own business
in the said building after the said reconstruction. He
intends to open a medicine shop therein. The plaintiff
bona fide requires the suit house for the above
purpose. He has no other suitable accommodation for the
same in the town."
The cryptic averment is that the plaintiff has not got any
other reasonably suitable accommodation in the same town.
However,
613
in para 4 of the plaint it is stated ’that the major portion
of the building is in occupation of the firm Goraldas
Parmanand and the plaintiff has already obtained a decree
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for its eviction therefrom’. The defendant in his written
statement has in term stated that the defendant is in
possession of a small portion of the building, the remaining
portion of which was in possession of firm M/s. Goraldas
Parmanand. In para 6 of the written statement it is further
stated that on his own admission, the plaintiff has got a
suitable alternative accommodation being the premises for
which a decree of eviction is obtained for doing business
and which is more than sufficient for his requirement. The
learned Trial Judge framed Issue No. 2(a) on the question
whether the plaintiff landlord had no other reasonably
suitable accommodation of his own in his occupation in the
city. While recording finding on this issue the cryptic
observation in para 19 of the judgment is that the plaintiff
is a student and he has no other accommodation for starting
his own business. There is not the slightest reference to
the decree admittedly obtained by the plaintiff against firm
M/s. Goraldas Parmanand which firm was carrying on business
in a portion of the building which the plaintiff himself has
described as the major portion of the building, the suit
premises being a small portion of the whole building. In the
first appeal this contention is disposed of by observing
that the alternative accommodation which the defendant has
pleaded in his written statement is under litigation and
therefore it cannot be treated as available to the
plaintiff.’
In the second appeal in the High Court the defendant
appellant moved an application under Order VI Rule 17 for
amendment of the written statement for elaborating what was
already stated that not only the decree obtained by the
plaintiff against the adjoining tenant of the same building
namely firm of M/s. Goraldas Parmanand has become final but
the plaintiff in execution of the decree way back in 1972
obtained actual possession of the whole of area occupied by
that firm and that forms major portion of the whole
building. This application, though, in our opinion, to be
wholly superfluous in view of the pleadings hereinbefore set
out and in view of the fact that the burden of proof of
establishing that the landlord was not in possession of a
reasonably suitable accommodation in the same town was on
the plaintiff was rejected on untenable ground that the
defendant appellant was guilty of delay and laches. This
application for amendent deserves to be granted, and we
grant the same. What is its impact ? Even while rejecting
the application the High Court in terms observed in para 4
of its judgment as under:-
614
’Adjoining portion was vacated by firm Goraldas
Parmanand as far back as in the year 1972’.
The High Court thus had before it a fact beyond dispute and
beyond controversy that the major portion of the building
was vacated by the adjoining tenant way back in 1972. This
was an uncontroverted fact. Therefore remand on this point
is an exercise in futility because the fact alleged in the
application for amendment is admitted. After rejecting the
application on wholly untenable ground the High Court in
1976 affirmed the finding wholly contrary to record as
available at that stage that the plaintiff landlord had no
other reasonably suitable non-residential accommodation of
his own in his occupation in the city even though on
landlord’s own admission he had acquired vacant possession
of a major portion of the building let for non-residential
purpose as far back as 1972. In the course of hearing we
were repeatedly told that the finding of facts are
sacrosanct. The finding of fact ignoring incontrovertible
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admitted position which would non-suit the plaintiff if
upheld would be travesty of justice. The burden being on the
plaintiff to show that he had no other reasonably suitable
accommodation for carrying on the business which he wanted
to start in the suit premises, it was for the plaintiff to
show that he had not acquired possession from firm Goraldas
Parmanand. Alternatively the plaintiff should have shown
that the said adjacent accommodation was not reasonably
suitable for the business he wanted to start. He has done
neither. On the contrary plaintiff has admittedly adopted a
position in the plaint that he not only wanted suit premises
but also the adjoining premises of which he had obtained
possession for starting his business. In such a situation if
the High Court had kept in view that the plaintiff had
already with him viz. possession of a building having 18
frontage on the main road and 90 depth plus portion at the
back of the suit premises in his possession it would have to
come to an affirmative conclusion that the plaintiff had
sufficient accommodation for starting his business as a
Chemists and Druggists. It was no where pointed out by the
plaintiff that the shop of Chemists and Druggists or a
medicine shop would require frontage of more than 18’. 18’
frontage on a main road in a city like Bilaspur is
sufficiently attractive and accommodating. The depth of the
shop as given out to us being 90’; therefore landlord has
now in his possession shop admeasuring 18’ x 90’ plus the
area of 7’ x 90’ at the back of the suit premises being part
of the same building. Would this not provide more than ample
accommodation to the plaintiff to start his business as a
Chemists and Druggists ? Not one
615
word has been said that the accommodation which is already
in possession of the plaintiff is neither suitable nor
reasonably suitable nor sufficient for starting his
business. In fact the very stand of plaintiff landlord as
accepted by the High Court that some portion at the back
would be utilised by landlord for residence would
affirmatively establish that landlord has more than enough
vacant accommodation in possession for starting his
business.
The difficulty which the High Court experienced was
whether a tenant under a decree of eviction could invite the
Court to take into consideration the events subsequent to
passing of the decree which if noticed would non-suit the
landlord.
The definition of expression ’tenant’ in the Act
excludes from its operation a person in possession against
whom any order or decree for eviction has been made. The
High Court referred to its earlier judgment in Taramal’s
case wherein it was held that the protection to a statutory
tenant lapsed with the passing of a decree and such a person
had no right to bring on record new circumstances which were
not in existence at the date of the passing of the decree.
This approach wholly overlooks the scheme of the Rent
Restriction Act. The M.P. Act enables a landlord to seek
eviction of a tenant and obtain possession under various
circumstances set out in section 12. If a landlord bona fide
requires possession of a premises let for residential
purpose for his own use, he can sue and obtain possession.
He is equally entitled to obtain possession of the premises
let for non-residential purposes if he wants to continue or
start his business. If he commences the proceedings for
eviction on the ground of personal requirement he must be
able to allege and show the requirement on the date of
initiation of action in the Court which would be his cause
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of action. But that is not sufficient. This requirement must
continue throughout the progress of the litigation and must
exist on the date of the decree and when we say decree we
mean the decree of the final court. Any other view would
defeat the beneficial provisions of a welfare legislation
like the Rent Registration Act. If the landlord is able to
show his requirement when the action is commenced and the
requirement continued till the date of the decree of the
Trial Court and thereafter during the pendency of the appeal
by the tenant if the landlord comes in possession of the
premises sufficient to satisfy his requirement, on the view
taken by the High Court, the tenant should be able to show
that the subsequent events disentitled the plaintiff, on the
only ground that here is tenant against whom a decree or
order for
616
eviction has been passed and no additional evidence was
admissible to take note of subsequent events. When a
statutory right of appeal is conferred against the decree or
the order and once in exercise of the right an appeal is
preferred the decree or order ceases to be final. What the
definition of ’tenant’ excludes from its operation is the
person against whom the decree or order for eviction is made
and the decree or order has become final in the sense that
it is not open to further adjudication by a court or
heirarachy of courts. An appeal is a continuation of suit.
Therefore a tenant against whom a decree for eviction is
passed by Trial Court does not lose protection if he files
the appeal because if appeal is allowed the umbrella of
statutory protection shields him. Therefore it is
indisputable that the decree or order for eviction referred
to in the definition of tenant must mean final decree or
final order of eviction. Once an appeal against decree or
order of eviction is preferred the appeal being a
continuation of suit, landlord’s need must be shown to
continue to exist at appellate stage. If the tenant is in a
position to show that the need or requirement no more exists
because of subsequent events, it would be open to him to
point out such events and the Court including the appellate
court has to examine, evaluate and adjudicate the same.
Otherwise the landlord would derive an unfair advantage. An
illustration would clarify what we want to convey. A
landlord was in a position to show he needed possession of
demised premises on the date of the suit as well as on the
date of the decree of the trial court. When the matter was
pending in appeal at the instance of the tenant, the
landlord built a house or bungalow which would fully satisfy
his requirement. If this subsequent event is taken into
consideration, the landlord would have to be non-suited. Can
the court shut its eyes and evict the tenant ? Such is
neither the spirit nor intendment of Rent Restriction Act
which was enacted to fetter the unfettered right of re-
entry. Therefore when an action is brought by the landlord
under Rent Restriction Act for eviction on the ground of
personal requirement, his need must not only be shown to
exist at the date of the suit, but must exist on the date of
the appellate decree, or the date when a higher court deals
with the matter. During the progress and passage of
proceeding from court to court if subsequent events occur
which if noticed would non suit the plaintiff, the court has
to examine and evaluate the same and mould the decree
accordingly. This position is no more in controversy in view
of a decision of this Court in Pasupuleti Venkateswarlu
(supra) where Justice Krishna Iyer speaking for the Court
observed as under:-
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"We affirm the proposition that for making the
right or remedy claimed by the party just and
meaningfully as
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also legally and factually in accord with the current
realities, the court can, and in many cases must, take
cautions cognisance of events and development
subsequent to the institution of the proceeding
provided the rules of fairness to both sides are
scrupulously observed."
In order to fully evaluate the law laid down in the
aforementioned extracted passage it is worthwhile to give
the background of facts in which it was made. The appellant
landlord in that case was the owner of a large building
which was leased out in separate portions to several
tenants. One of such tenants was the respondent. The
landlord wanted to start a business in automobile spares and
claimed eviction of the respondent under the Rent
Restriction Act being Andhra Pradesh Buildings (Lease, Rent
and Eviction) Control Act, 1960. The petition was resisted
and the Rent Controller dismissed the petition. The appeal
of the landlord failed. But in revision the High Court chose
to remand the case to the appellate authority and the
appellate authority in turn remitted the case to the Trial
Court for fresh disposal in accordance with certain
directions. The landlord preferred a revision petition
against the order of remand by the first appellate court.
The High Court dismissed the action of the landlord taking
cognisance of a subsequent event namely that the landlord
acquired possession of a reasonable suitable non-residential
building in the same town. In appeal to this Court it was
seriously contended that it was improper for the High Court
to take into consideration the subsequent events and this
contention was negatived inter alia on the ground in the
passage extracted above. Therefore, it is now
incontrovertible 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 must subsist till the final
decree or an order for eviction is made. If in the meantime
events have cropped up which would show that the landlord’s
requirement is wholly satisfied then in that case his action
must fail and in such a situation it is incorrect to say
that as decree or order for eviction is passed against the
tenant he cannot invite the court to take into consideration
subsequent events. He can be precluded from so contending
when the decree or order for eviction has become final. In
view of the decision in Pasupuleti’s case (supra) the
decision of the Madhya Pradesh High Court in Taramal’s case
must be taken to have been overruled and it could not be
distinguished only on the ground that the definition of
’tenant’ in the Madhya Pradesh Act is different from the one
in Andhra Pradesh
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Act. Therefore, the High Court was in error in declining to
take this subsequent event which was admittedly put forth in
the plaint itself into consideration.
The landlord wants to start his business as Chemists
and Druggists. On his own admission he has in his possession
a shop admeasuring 18’ X 90’ plus 7’ X 68’ forming part of
the same building the remaining small portion of 7’ X 22 is
occupied by the tenant. The landlord has not stated that so
much space with 18’ frontage is not reasonably suitable for
starting his business as Chemist and Druggist. In that view
of the matter the plaintiff’s suit for eviction on the
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ground mentioned in section 12(1)(f) must fail and this is
being done by not disturbing any finding of fact but relying
upon the admission of the plaintiff himself.
There is an error apparent on the face of the record
inasmuch as when the High Court was faced with a dilemma
whether the landlord required the whole of the building
including demised premises now in possession of the
appellant tenant for starting his business of Chemists and
Druggists and when the High Court had before it an
indisputable fact that the respondent landlord has obtained
vacant possession of a major portion of the building which
was in possession of firm M/s. Goraldas Parmanand, was it
necessary for him to have any additional accommodation ? The
High Court got over this dilemma by observing and by
affirming the finding of the subordinate courts that the
remaining portion of the premises would be used by the
landlord for his residence and even though the portion
utilised for the purpose of running the business would be
smaller compared to the one to be utilized for the residence
it would still not be violative of sub-section (7) of sec.
12 because such a composite user would not radically change
the purpose for which the accommodation was let. This
finding is contrary to record and pleadings. Minutely
scanning the plaint presented by the landlord there is not
the slightest suggestion that he needs any accommodation for
his residence. He has not even stated whether at present he
is residing in some place of his own though he claimed to be
residing in the same town. He does not say whether he is
under any obligation to surrender that premises. Section
12(1)(e) specifically provides for a landlord obtaining
possession of a building let for residential purposes if he
bona fide requires the same for his own use and occupation.
But there is an additional condition he must fulfil namely
he must further show that he has no other reasonably
suitable residential accommodation of his own in his
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occupation in the city or town concerned. Utter silence of
the landlord on this point would be a compelling
circumstance for the court not to go in search for some
imaginary requirement of the landlord of accommodation for
his residence. In the context of these facts the Trial Court
and the first Appellate Court committed a manifest error
apparent on the record by upholding the plaintiff’s case by
awarding possession also on the ground neither pleaded nor
suggested. The landlord must have been quite aware that he
cannot obtain possession of any accommodation for his
residence. There fore, the finding of the High Court and
courts subordinate to it that the respondent-landlord
requires possession of the whole of the building including
the one occupied by the tenant for starting his business as
Chemists and Druggists as also for his residence is vitiated
beyond repair. Once impermissible approach to the facts of
the case on hand is avoided although facts found by the
Courts are accepted as sacrosanct yet in view of the
incontrovertible position that emerges from the evidence
itself that the landlord has acquired major portion of the
building in which he can start his business as Chemists and
Druggists he is not entitled to an inch of an extra space
under section 12(1)(f) of the Act.
Respondent landlord also sought possession on the
ground set out in section 12(1)(h) which reads as under:-
"that the accommodation is required bona fide by
the landlord for the purpose of building or rebuilding
or making thereto any substantial additions or
alternations and that such building or re-building or
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alterations cannot be carried out without the
accommodation being vacated."
In order to obtain possession under section 12(1)(h) the
landlord again has to establish his bona fide requirement of
the accommodation in possession of the tenant for the
purpose of building or rebuilding or making thereto any
substantial additions or alterations and must further show
that such building or re-building or alterations cannot be
carried out without the accommodation being vacated. The
case of the landlord on this point is that he wants
possession of the whole of the building including the suit
premises and he has Rs. 8,000 in a fixed deposit account and
that as the building is in a dilapidated condition, he would
reconstruct the same and use it for himself both for
residence and starting his business.
If landlord acquires possession under section 12(1)(h),
section
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18 imposes corresponding obligation which reads as under:-
"18. Recovery of possession for repairs and
rebuilding and re-entry.-(1) In making any order on the
grounds specified in clause (g) or clause (h) of sub-
section (1) of Sec. 12, the Court shall ascertain from
the tenant whether he elects to be placed in occupation
of the accommodation or part thereof from which he is
to be evicted and, if the tenant so elects, shall
record the fact of the before election in the order and
specify therein the date on or which he shall deliver
possession so as to enable the landlord to commence the
work of repairs or building or re-building, as the case
may be."
The courts declined to grant any relief to the tenant under
section 18 on the ground that as the landlord’s requirement
is a composite one, the tenant is not entitled to be re-
inducted in the building that may be reconstructed by the
landlord after obtaining possession of the same. Now once it
is held that the landlord is not entitled to possession for
his residence and he has more than enough accommodation in
his possession for carrying on his business, the composite
requirement disappears. Landlord’s case will, therefore,
have to be exclusively examined in the context of section
12(1)(h).
Two contentions were urged on behalf of the appellant
to negative the case of the landlord in this behalf; one
that the building is not in a dilapidated condition and
secondly it can be repaired without vacating the premises.
As all the courts have concurrently found that the building
is in a dilapidated condition, this finding is entitled to
respect and it is not proper for us to interfere with the
same. The question would however be whether the landlord
wants to reconstruct the demised portion of the premises
even though he is not entitled to acquire possession of the
same for his use and that he would be under an obligation to
re-induct the tenant after its construction. The further
question is whether the landlord is interested in
reconstructing the whole building. It was alternatively
contended that no attempt is made to find out whether the
landlord would be in a position to reconstruct that part of
the building which has come in his possession once he is not
in a position to acquire possession of the demised premises
for his own use. This situation calls for a fresh
examination of the case of the landlord under section
12(1)(h). If landlord is to be awarded possession under
section 12(1)(h) on the footing that, that is the only
ground on which he can seek possession, it will have to be
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found out after giving oppor-
621
tunity to the landlord to prove whether he is interested in
re-building that portion of the building which is occupied
by the appellant and further the court should give necessary
direction under section 18. In that event the court will
have also to ascertain whether the portion which is now in
possession of the landlord and which he may be interested in
reconstructing can be reconstructed without the tenant
vacating the demised premises. As the whole foundation of
the landlord’s case of composite requirement disappears the
matter has to be examined afresh on the footing that the
landlord has come to the court for possession under section
12(1)(h) only and if he succeeds in his prayer for
possession on the ground mentioned in section 12(1)(h) it
would be necessary for the court to give appropriate
direction under section 18 of the Act. As the matter has not
been examined from this angle by any Court it has become
inevitable, even though the litigation is pending for a long
time, to remit the case for examination of this aspect. The
question is whether the remand should be to the first
appellate court or to the trial court. As the first
appellate court is the fact finding court, in our opinion it
would be appropriate for us to remit the case, after setting
aside the decree of the first appellate court as well as the
High Court, to the first appellate court to ascertain :-
(i) Whether the landlord is interested in
reconstructing that portion of the building which
is in possession of the tenant as demised
premises;
(ii) Whether the landlord would be in a position to
reconstruct the building in his possession without
the tenant being required to vacate the demised
premises; and
(iii)if the first two queries are answered in favour of
the landlord, what should be the appropriate
directions to be given in favour of the tenant as
enjoined by S. 18 ?
Accordingly, this appeal is allowed and the decree of
eviction made by the trial court and confirmed by the 1st
appellate court and also by the High Court is set aside. The
prayer of the landlord for possession under section 12(1)(f)
is negatived as he is not entitled to recover possession on
the ground mentioned in section 12(1)(f). The matter is
remanded to the 1st Appellate Court for the limited purposes
set out in the just preceding paragraph. In the
circumstances of the case there will be no order as to
costs.
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PATHAK J. This is tenant’s appeal by special leave
against the judgment of the High Court of Madhya Pradesh
arising out of a suit for ejectment.
The suit was filed by the respondent, Raghunath Prasad.
He claimed to be the owner of a building in Sadar Bazar,
Bilaspur. One portion of the building was occupied by a firm
Goraldas Permanand. According to the plaint, the entire
building was in a dilapidated condition and the plaintiff
intended to reconstruct the front portion of the building
and to effect major repairs in the rear portion. In order to
do so it was said to be necessary that the defendants should
vacate the accommodation. In regard to the other portion,
the plaintiff stated that he had obtained a decree for
ejectment against Goraldas Parmanand. The plaintiff also
alleged that he intended to start the business of a medicine
shop and for that purpose he required the accommodation
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occupied by the defendants as it faced the main road in
Sadar Bazar, and that he had no other suitable accommodation
in the town for such business.
The suit was resisted by the defendants, and a number
of pleas were taken. In particular it was denied that the
accommodation occupied by them was dilapidated and that it
was bona fide required by the plaintiff. It was claimed that
in view of the decree for ejectment against Goraldas
Parmanand the plaintiff had suitable alternative
accommodation for his proposed business.
The trial court found that the entire building,
including the accommodation occupied by the defendants,
needed reconstruction and repairs, and that for the purpose
of his projected business the plaintiff had bona fide need
of the accommodation held by the defendants. It was observed
that the accommodation occupied by Goraldas Parmanand was
still under litigation as an appeal was pending in the case.
Holding that the grounds under section 12(1) (f) and
12(1)(h) of the Madhya Pradesh Accommodation Control Act
were made out, the suit was decreed for ejectment.
The defendants preferred an appeal, and the first
appellate court while dismissing the appeal maintained the
findings of the trial court and upheld the order of
ejectment.
A second appeal by the defendants was dismissed by the
High Court on 17th April, 1976. During the pendency of the
appeal the defendants moved an application under Order VI,
Rule 17 of the Code of Civil Procedure for leave to amend
their written statement
623
by adding the plea that the plaintiff had secured vacant
possession of the adjoining portion of the building from
Goraldas Parmanand in the year 1972, and that the case
should be remanded for deciding whether the accommodation
acquired was reasonably suitable for starting a medicine
shop, the purpose for which the plaintiff said he required
the accommodation held by the defendants. The High Court
rejected the application observing that it had been moved
three and a half years after the event had taken place, that
it was not made bona fide but was intended merely to gain
time and would result in grave injustice to the plaintiff.
The High Court also observed that even if the amendment was
allowed it would not affect the decision of the case,
because as the plaintiff’s need extended to entire building
his securing vacant possession of one part would not
conclude the matter. It was pointed out that the plaintiff
intended to reconstruct the entire portion of the building
including the accommodation occupied by the defendants, as
well as effect major repairs to the rear portion of the
building. In place of the shop of the defendants with a
frontage of 7 and a depth of 22 and the adjoining shop with
a frontage of 10 and a depth of 90, the plaintiff intended
to demolish the front portion of both the shops and to
reconstruct the building with a new shop having a wide
frontage of 22’ and a depth of 7’, and to reside in the rear
portion of the building. The High Court added that residence
in the rear portion of the accommodation would not alter the
nature of the accommodation as the residence would be
incidental to the main purpose of carrying on the medicine
business in the front portion of the building.
The defendants having obtained special leave from this
Court this appeal is now before us.
As analysis of the plaint shows that the ejectment of
the appellants was sought on two grounds. The respondent
intended to reconstruct the front portion of the dilapidated
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building and to repair the rear portion and according to him
this required the appellants to vacate the accommodation
occupied by them. That clearly is the ground envisaged by s.
12(1)(h), Madhya Pradesh Accommodation Control Act. That
ground stood on its own. The respondent also intended to
open a medicine shop in the front portion of the building,
and he pleaded that he had no other accommodation for the
purpose. That brings into play s. 12(1)(f) of the Act. The
plea shows that as the dilapidated building required
reconstruction and repairs, the respondent indended to avail
of the opportunity to so effect the structural alterations
as to accommodate a medicine
624
shop which he planned to start as a business in the
premises. This latter ground arose as a sequel to the first.
If the first ground was made out, the appellants would have
to vacate the portion held by them, and if that had been the
only ground the court would automatically be called upon to
consider s. 18 of the Act, which entitles the tenant at his
option to be reinstated in a portion of the reconstructed
building. There was the further ground that the respondent
proposed to start his own business in the front portion of
the building, and the finding of the High Court that the
respondent wanted the rear portion of the building for his
personal residence.
The subordinate courts were influenced by the
consideration that although the respondent had obtained a
decree for ejectment against Goraldas Parmanand, the case
continued to be the subject of litigation and therefore it
could not be said that the respondent was in possession of
alternative accommodation. However, while the second appeal
was pending in the High Court the appellants applied for
amendment of their written statement to include the plea
that the respondent had meanwhile obtained possession from
Goraldas Parmanand. The High Court declined to permit the
amendment. In doing so, it seems to me that the High Court
erred. It was an essential part of the appellants’ defence
from the outset that the portion let out to Goraldas
Permanand constituted suitable alternative accommodation,
and therefore they should not be ejected. It is immaterial
that the amendment was sought more than three years after
possession of the portion had passed to the respondent. The
High Court was bound to take the fact into consideration
because, as is well settled now, in a proceeding for the
ejectment of a tenant on the ground of personal requirement
under a statute controlling the eviction of tenants, unless
the statute prescribes to the contrary the requirement must
continue to exist on the date when the proceeding is finally
disposed of either in appeal or revision, by the relevant
authority. That position, to my mind, is indisputable. The
High Court should have allowed the amendment. The High
Court, alternatively observed that the respondent wanted to
accommodate his shop in the front portion of the building
and therefore, of necessity, he would require the portion
occupied by the appellants. That conclusion is based on the
findings rendered by the courts below, which findings the
High Court respected as findings of fact. But the High Court
failed to note that both the courts below had proceeded on
the assumption that the adjoining portion occupied by
Goraldas Parmanand was not immediately available on account
of litigation. It is for that reason that permitting the
amendment sought by the
625
appellants became relevant and, indeed, imperative. If the
respondent has obtained possession of that portion, and that
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does not seem to be disputed, it becomes a serious question
for decision whether the respondent needs the front portion
of the building for his medicine shop and, if so, according
to dimensions proposed by him. In the consideration of that
question the element of the respondent’s need for the rear
portion of the building for his personal residence must be
ignored. That need was never pleaded in the plaint and, as
will be seen from s. 12(1)(e) of the Act, several
considerations need to be satisfied before the need can be
held proved. This aspect of the matter was apparently not
brought to the notice of the High Court and therefore it
fell into the error of taking this element into account.
My brother Desai has in his judgment held that the
respondent can accommodate his medicine shop in the portion
vacated by Goraldas Parmanand and he has indicated the
dimensions of the shop which appear reasonable to him. With
great respect I am unable to concur with what he has said.
Whether or not the shop should be located in the front
portion of the building and what should be its dimensions
will turn on the evidence adduced by the parties in that
behalf. The original record of the suit is not before us,
and without knowledge of the state of the evidence I would
refrain from a finding on the point. Indeed, it seems to me
in the circumstances of this case to be pre-eminently a task
to be entrusted to a subordinate court.
The position which then emerges is this. The respondent
has made out his case under s. 12(1)(h) of the Act that he
requires the building, including the portion occupied by the
appellants, for reconstruction of the front portion and
repairs to the rear portion, and that necessitates that the
appellants vacate their accommodation. This matter is
concluded by the concurrent findings of fact rendered by the
trial court and the first appellate court. It is also
concluded by concurrent findings of fact that the respondent
needs a portion of the building for starting the business of
a medicine shop. What should be the location of the shop and
what its dimensions is a matter which remains for decision.
And there is the further question of considering the
availability of s. 18 of the Act to the appellants. Both
these questions, I think, should be left to the first
appellate court.
Accordingly, I allow the appeal, set aside the judgment
and decree of the High Court and of the first appellate
court and remand
626
the case to the latter court for permitting the appellants
to amend their written statement and allowing the parties to
lead such evidence as is consequentially called for, and
thereafter to decide the case afresh in the light of the
observations made above. I would leave the parties to bear
their costs.
S.R. Appeal allowed.
627