HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 7 Case :- WRIT - A No. - 46570 of 2003 Petitioner :- [ENTITY] Respondent :- [ENTITY] And Others Petitioner Counsel :- [ENTITY] Respondent Counsel :- [ENTITY],Sc Hon'ble [ENTITY],J.
1. Heard Sri [ENTITY], counsel for petitioner, Sri [ENTITY] assisted by Sri [ENTITY] for the respondents.
2. The correctness of the judgment dated 23rd September, 2003 of Additional District Judge, (Court No. 10), Kanpur Nagar passed in [CASE NUMBER] has been assailed in this writ petition under [SECTION] of [ACT].
3. The impugned order has resulted in the ejectment of petitioner, since the judgment of Prescribed Authority has been set aside by means of impugned appellate judgment and the release application of respondent-landlord filed under [SECTION] of [ACT], ([ACT] (hereinafter referred to as the Act 1972), has been allowed.
4. The dispute relates to a shop situated at 25/8, (Old No. 25/3), Mall Kanpur Nagar. The shop situated on the ground floor, was let out in 1958. It is owned by [ENTITY]( the applicant, now deceased and substituted by his legal heirs i.e. respondent Nos. 1, 2 & 3) (hereinafter referred to as landlord).
5. The landlord filed an application i.e. [CASE NUMBER] before the Prescribed Authority/Civil Judge, Kanpur Nagar under [SECTION] of Act 1972 for release of disputed shop on the ground that landlord's second son [ENTITY] has obtained diploma in leather from Leather Institute, Kanpur Nagar and is unemployed. The landlord wanted the shop in question for settlement of his second son in his independent business of leather goods. In the aforesaid application, the landlord had impleaded [ENTITY] claiming that he is a tenant in the shop in question.
6. The notice issued by Prescribed Authority stood served upon Sri [ENTITY] (the petitioner, now deceased and substituted by his legal heirs), though, he himself was not impleaded as respondent. However, an objection and reply was filed by petitioner stating that in the shop in question, the business in the name and style of M/s. [ENTITY]'s is being carried on by him and he is in possession of the shop, paying rent regularly since 1968.
7. It appears that Sri [ENTITY] was a tenant of shop in question along with petitioner and was running the business under the name and style M/s. [ENTITY]. Sri [ENTITY] shifted to Bangalore in April, 1968 and since then the petitioner, becoming the proprietor, continued to run the business and paid rent to the landlord. He(petitioner) stated that the landlord [ENTITY] let out the premises to [ENTITY], [ENTITY] and others being partners of M/s. [ENTITY] Brothers for running business. There were four partners in M/s. [ENTITY] Brothers who came to commence business in 1950 in the shop in question and these partners included M/s. P.S. [ENTITY], [ENTITY] and [ENTITY]. He also pleaded that landlord had several properties and enough alternative accommodation to settle his son in an independent business.
8. By way of amendment, the petitioner-tenant added certain paragraphs in his written statement stating that the premises, of which, the shop forms part is situated at Main Commercial Road, Kanpur City, i.e. Mall. It is a three-storied building and entirely being used for non-residential purposes. M/s. General Assurance Society Ltd. occupied two rooms along with verandah, stores etc. for running an office. On the second floor, M/s. National Insurance Co. Ltd. was running its office. Both the aforesaid companies vacated the premises and the said accommodation is available to landlord for non-residential purposes which can satisfy requirements of landlord. He also said that premises Nos. 25/7, 25/8, 25/48, the Mall, Kanpur are not three separate buildings but one building constructed after demolishing earlier three existing units. After reconstruction, it has been raised as a single unit building having a common entity. It also stated that the landlord owned about 25 buildings and two big markets in Kanpur City besides lot of property in Babupurwa and Bakerganj.
9. The Prescribed Authority, vide judgment dated 5.10.1999 recorded its findings that the landlord ultimately is a joint family. They have wrongly stated about the accommodation giving three different numbers, though it is the common and same building. They have not disclosed correct facts i.e. about their properties etc. and hence, their need is not bona fide. Regarding the hardship also, he recorded a finding in favour of petitioner-tenant and consequently rejected landlord's application vide judgment dated 5.10.1999. However, the Appellate Court allowed landlord's appeal by means of impugned judgment dated 23rd September, 2003.
10. Sri [ENTITY], learned counsel for petitioner contended that the landlord's admitted case was that his son would start business of shoe-soles, which is not a common consumer goods but an interim product to be supplied to shoe-manufacturers. Therefore, the kind of business, he intended to commence, did not relate to common consumers but to a small category of commercial entrepreneurs namely, the manufacturers of shoes. Such kind of business could have been started in a shop or show-room situated at first, second or third floor and there was enough accommodation available with the landlord after the two Insurance Companies vacated, their let out accommodation, in the same building. The Appellate Court however completely misread the evidence and documents and has virtually ignored the accommodation becoming available to landlord after vacation of let out premises by M/s. General Assurance Society Ltd. and National Insurance Company Ltd. It has completely failed to consider that despite availability of aforesaid accommodation, the petitioner-tenant must be uprooted from shop in question. Its approach is totally illegal having ignored relevant material on this aspect. Therefore impugned appellate judgment is liable to be set aside. It is also pointed out that the landlord has constructed 44 new shops in the area known as 'Sabji Mandi' and that being so, it cannot be said that no accommodation is available with the landlord to settle his son for running an independent business. The Appellate Court ignoring to consider availability of aforesaid 44 new shops only on the ground that this fact was stated in rejoinder affidavit has committed patent error inasmuch as the rejoinder affidavit was filed long back, it is part of pleadings, and, the landlord having never disputed the fact, though the case was decided by Prescribed Authority long thereafter, it cannot be said that in respect to the said averments, landlord had no opportunity to take his own stand and reply the above pleadings.
11. Per contra, learned counsel appearing for respondent-landlord supported the judgment of Appellate Court for the reasons stated therein and contended that in exercise of jurisdiction under [SECTION], this is not a fit case warranting interference, since, it has not been shown that there is an apparent error on the face of record.
12. It cannot be doubted, after a long time since the enactment of [ACT], that an application of landlord under [SECTION] cannot be allowed unless he proves a case of personal need, which should be genuine and bona fide and not superficial, imaginary or bogus. Besides, he should also show that hardship faced in case the tenant is ejected from disputed premises would be lesser to tenant than that which would cause to landlord in case his application is rejected.
13. Herein tenant in his written statement (as amended) has clearly pleaded about several properties of landlord which were non-residential in character. Not only the landlord completely failed to reply about the aforesaid properties, but there is also no explanation whatsoever in the application or in any other document etc. as to why details of all such properties were not disclosed by landlord, on his own, in his application filed under [SECTION]. The landlord pleaded that his eldest son is doing the business of Gas supply i.e. M/s. Kanpur Gas and Allied Agencies and the said business was being carried on in the premises No. 25/5, the Mall, Kanpur and no other accommodation is available to settle his second son except the disputed shop. In the written statement, the tenant has pleaded that M/s. Kanpur Gas and Allied Agencies, besides its sale-point at premises No. 25/7, also have other branches in Kamla Market, Bakerganj, Babupurwa. He also clearly pleaded that family members are residing at 132/294 and 132/292 Bakerganj, Babupurwa, Kanpur and enough place is available in the building in which the disputed shop is situated for settling landlord's son. He specifically pleaded in paragraphs 22 and 24 that after vacation of let out premises by M/s. General Assurance Society Ltd. and National Insurance Co. Ltd., the vacant premises can be utilized for the purposes of settling landlord's son It was also said that the premises No. 25/7, 25/8 and 25/48 are not separate buildings but constitute a single unit after demolition of earlier old buildings and reconstruction of a single composite building.
14. On these aspects, there is no clear stand taken by landlord except an evasive reply.
15. Unfortunately, the Appellate Court in the impugned judgment has completely failed to apply his mind to these aspects. This Court finds that in the entire judgment of Appellate Court, though he has noticed the factum of vacation of part of building, which was under the tenancy of Insurance and other company, but thereafter, he has not applied his mind as to the effect of availability of such accommodation after vacation on the alleged need of landlord. He (the Appellate Court) has referred to the contention of landlord's counsel that Leather business cannot be carried out on the back portion of building but then has failed to consider that kind of leather business, the landlord intended to carry on, was not that of a general consumerable goods but relates to shoe-soles, which are not consumed by common consumers but their buyers would be the commercial entrepreneurs and manufacturers of shoes and such kind of business does not require a shop in the market, open to general consumers but such a show-room could have been open on the first and second floor of building also. This Court is not intending to fasten its own views upon the landlord on the suitability of accommodation but what troubles this Court is that the Appellate Court has completely ignored the availability of aforesaid accommodation by observing that as per the claim of landlord's counsel, the said accommodation was residential one and cannot be converted for commercial use. It has completely failed to consider that both the tenants namely General Assurance Society Ltd. and National Insurance Company were using the accommodation for running their offices and therefore, it was a commercial use. No evidence has come on record to demonstrate that any part of the building was in use for residential purpose at any point of time. Simply referring to the contention of counsel for landlord, the court could not have turned the contention into an evidence to base its finding. The Appellate Court unfortunately has not referred to any evidence to show that the aforesaid accommodation at any point of time was used as a residential accommodation. Its observations are imaginary and presumptuous. It can not doubted that a residential accommodation may not be allowed to be converted into a non-residential accommodation but when an accommodation was already being used as non-residential by running offices, the question of any conversion would not arise at all.
16. In my view, the Appellate Court has clearly erred in law and has committed manifest error in ignoring the availability of aforesaid accommodation on sheer conjectures and surmises. There is no evidence to show that any part of building in which the shop in dispute located, was being used for residential purposes at any point. It is also true that normally every small or petty subsequent event would not render landlord's application under [SECTION] infructuous and shall not frustrate under the subsequent event has material bearing on the very purpose for which the accommodation is required. The Court is bound to take into account such subsequent events which has material bearing.
17. The tenants brought this fact to the notice of the court below that the landlord has constructed 44 new shops. It was really an important aspect when the release of a shop is the issue in question on the ground that no other commercial accommodation is available to landlord. Such a subsequent event could not have been ignored altogether from considering Appellate Court only on the ground that it has been brought on record by way of rejoinder affidavit at the appellate stage. If the Appellate Court find it necessary, there was no reason for, not permitting an opportunity to landlord to rebut this fact. But neither the landlord chose to rebut the said fact nor the Appellate Court did find any occasion to give such opportunity and this may be on account of conduct of landlord in not finding any fault or wrong in the information. Hence, such a subsequent event could not have been ignored. Availability of 44 newly constructed shops in its entirety would have satisfied the requirement of landlord in a case where he seek release of only single shop occupied by the petitioner-tenant.
18. The question as to when and in what circumstances, subsequent activities/events can be looked into, has been considered time and again by Apex Court as well as this Court also.
19. A three-Judge Bench of Apex Court in [PRECEDENT] permitted cognizance of subsequent events, though very cautiously, and said:
"We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the court can, and in many cases must, take subsequentcautious cognizance of events and developments subsequent to the institution of the proceedings provided the rules of fairness to both sides are scrupulously obeyed."
20. Again in [PRECEDENT], the cognizance of subsequent events was held permissible provided it wholly satisfy the requirement of petitioner/landlord who petitioned for eviction on the ground of personal requirement. The Court said:
"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 landlords 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."
(emphasis added)
21. In [PRECEDENT] a two-Judge Bench of Apex Court said that normal rule is that rights and obligations of the parties are to be determined as they were when the lis commenced. The only exception is that the Court is not precluded from moulding reliefs appropriately in consideration of subsequent events provided such events had an impact on those rights and obligations. Hon'ble [ENTITY], J (as his Lordship then was) observed:
"The normal rule is that in any litigation the rights and obligations of the parties are adjudicated upon as they obtain at the commencement of the lis. But this is subject to an exception. Wherever subsequent events of fact or law which have a material bearing on the entitlement of the parties to relief or on aspects which bear on the moulding of the relief occur, the court is not precluded from taking a 'cautious cognizance' of the subsequent changes of fact and law to mould the relief."
22. In [PRECEDENT], the Court said that for the malady of judicial system of delayed justice, a landlord should not suffer. Every day may result in some kind of development and, therefore, every subsequent development would not deny claim of landlord on the pretext of a subsequent development since no one can be expected to stay idle for all times to come till a litigation is going on. It may happen that the lifetime of litigation may be more than that of litigant-landlord himself. Therefore, the judicial tardiness should not cause an irreparable loss to a landlord. It would be unjust to shut the door of justice to a landlord on the end of litigation after passing through various levels of litigation to deny him justice and relief sought only on the ground of certain developments occurred pendente lite because the tenant has been successful in prolonging litigation for an unduly extended long period. However, if the cause of action is submerged in such subsequent events, in other words, if the subsequent events are such as to satisfy the very requirement of landlord in its entirety, the same can be seen and there is no allergy in considering and taking note of subsequent events of importance which may justify remoulding of relief not on account of mere pendency of litigation but on account of the position and status of landlord and other relevant factors.
23. This matter was further examined in detail in [PRECEDENT] and having considered a number of authorities on the subject, the Apex Court, in para 16 of judgment, crystallized three aspects when subsequent events can be taken note by a Court of law, namely:
(i) The relief claimed originally has, by reason of subsequent change of circumstances, become inappropriate; or
(ii) It is necessary to take notice of subsequent events in order to shorten litigation; or
(iii) It is necessary to do so in order to do complete justice between the parties.
24. The Appellate Court, in the present case, without looking to binding authorities of Apex Court, as discussed above, and brushing aside various material available on record, as also the applications filed by petitioner to bring on record the subsequent events having material bearing, by simply observing that no subsequent events can be considered, has clearly erred in law. The impugned appellate judgment, therefore, cannot sustain. The approach of Appellate Court cannot be appreciated and it has committed any manifest illegality resulting in grave injustice to the petitioner-tenant. In the result, the writ petition is allowed. The appellate judgment dated 23rd September, 2003 is set aside. The matter is remanded back to the Appellate Court to reconsider the [CASE NUMBER] in the light of the observations made above and in accordance with law and decide the same expeditiously and in any case within three months from the date of production of a certified copy of this order before him.
25. There shall be no order as to costs.
Order Date :- 12.9.2012 [ENTITY]