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
SK Mehta PN Puri and EMS Anam for the Appellants
PP 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 8000 in a fixed deposit account in a bank and even though he obtained a decree against the firm of Ms 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 section 121f 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 12 years 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 vs 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 vs 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 121f 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 section 121f 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 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 121f
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 121f 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 121f 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 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 Ms 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 2a 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 Ms 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 Ms 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 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 MP 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 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 We affirm the proposition that for making the right or remedy claimed by the party just and meaningfully as 617 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 618 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 ground mentioned in section 121f 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 Ms 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 121e 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 619 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 121f of the Act
Respondent landlord also sought possession on the ground set out in section 121h 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 alterations cannot be carried out without the accommodation being vacated In order to obtain possession under section 121h 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 8000 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 121h section 620 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 121h
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 121h
If landlord is to be awarded possession under section 121h on the footing that that is the only ground on which he can seek possession it will have to be 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 121h only and if he succeeds in his prayer for possession on the ground mentioned in section 121h 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 iiiif 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  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 121f is negatived as he is not entitled to recover possession on the ground mentioned in section 121f
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
622 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 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 121 f and 121h 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 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 section 121h 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 section 121f 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 section 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 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 section 121e 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 section 121h 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 section 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
SR Appeal allowed


Summary:
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 Ms 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 his own and therefore cannot claim his eviction under section 121f 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 121f 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 12 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 121f 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 121f 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 31
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 32
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 vs The Motor and General Traders   followed
Taramal vs Laxman Sewak and Ors 1971 Madhya Pradesh Law Journal p 888 overruled
In the instant case i relying on the admission of the plaintiff himself that he has in his possession a shop admeasuring 18x68 plus 7x68 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 121f 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 41
In order to obtain possession under section 121h 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 121h it would be necessary for the court to give appropriate directions under section 18 of the Act
619 F G 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 121e 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 31
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 1h 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 32
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