THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CIVIL REVISION PETITION No.5635 of 2007 Dated:- 26th July, 2010 Between:- Pyda Venkatesan and others …Petitioners AND Josyula Jagan Mohan Das and others …Respondents THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CIVIL REVISION PETITION No.5635 of 2007 ORDER:- This Civil Revision Petition is directed against the judgment and decree dated 18.10.2007 in R.C.A.No.1 of 2006 on the file of the Rent Control Appellate Authority – cum – Principal Senior Civil Judge, Vizianagaram, (for short, ‘appellate authority’) whereby and whereunder, the appellate authority confirmed the order dated 18.09.1996 in R.C.C.No.31 of 1999 passed by the Rent Controller – cum – Principal Junior Civil Judge, Vizianagaram (for short, ‘Rent Controller’). 2. The parties will be referred to as they were arrayed before the Rent Controller, for the sake of convenience. 3. The original landlady, Smt.Josyula Kalavathi Das (died per LRs) – the respondent herein filed R.C.C.No.31 of 1991 before the Rent Controller under Section 10 (2) (i) (3) b (ii) of the A.P.Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short, ‘the Act’) against the respondents mainly on three grounds i.e. willful default of payment of rents, securing alternative accommodation to do their business and bonafide requirement of the petition schedule building. The said petition was allowed by the Rent Controller by his order dated 18.09.1996 ordering eviction of the tenants. Then the tenants preferred an appeal in R.C.A.No.10 of 1996 before the appellate authority. However, the case was transferred to the Rent Control Appellate Authority, Bobbili, and was numbered as R.C.A.No.1 of 1996. By order dated 18.09.1996, the learned Rent Control Appellate Authority, Bobbili, allowed the appeal. Then the matter was carried by the petitioner in R.C.A.No.10 of 1996. During the pendency of the proceedings, the original land lady – Josyula Kalavathi Das died and her Legal Representatives were brought on record as respondents 1 to 3 in R.C.A.No.10 of 1996. Subsequently, second respondent also died and his legal heirs i.e. respondents 4 to 7 were brought on record. Subsequently, a C.R.P. was preferred before this Court. This Court, by order dated 23.12.2005, allowed the said C.R.P. setting aside the order of the appellate authority in R.C.A.No.1 of 2001 and remanded the matter to the appellate authority for the purpose of affording opportunities to both the parties to let in further evidence, if the parties require to do so, relating to the subsequent events and also in relation to the other grounds. Subsequently, P.Ws.1 to 3 were again recalled and re- examined. Originally Ex.A.1 to A.4 were marked before the Rent Controller but after remand, Exs.A.5 to A.27 were marked. On behalf of the respondents, R.Ws.1 and 2 were again recalled and re-examined. Initially, Exs.B.1 to B.6 were marked but again after remand, Exs.B.7 to B.13 were marked before the Rent Controller. Exs.C.1 to C.7 were marked before the Rent Controller. 4. The appellate authority, on appreciation of oral and documentary evidence, came to the conclusion that the petitioners require the petition schedule building for carrying on their business and thus, there is bonafide requirement of the same and holding so, allowed the appeal confirming the eviction order dated 18.09.1996. However tenants were granted two months time to vacate the petition schedule building. Challenging the same, this revision has been filed. 5. Though the petitioner sought eviction of respondents on three grounds i.e. willful default of payment of rents, securing alternative accommodation to do their business and bonafide requirement of the petition schedule building, the learned Rent Controller allowed the petition only on two grounds i.e. on the ground of willful default and bonafide requirement of the petition schedule building for personal requirements. However, after remanding the matter by this Court, the appellate authority found that the petitioners failed to prove the willful default, but however, allowed the petition only on the ground of bonafide requirement of the petition schedule building. Therefore, we are only concerned with the issue as to whether the petitioners’ claim of bonafide requirement of the petition schedule building has been proved or not. 6. Heard the learned counsel on record. 7. Learned counsel for the revision petitioner / tenants is that admittedly the original landlady died and subsequently her second son who was doing business in the Railway premises also died but the landlords failed to amend their petition bringing subsequent events to the notice of the Court. In support of her contention, learned counsel relied on a decision of the Supreme Court in J.J.Lal Private Limited Vs. M.R.Murali[1]. It is also her submission that respondent No.4, who is the wife of respondent No.2 (the second son of the original landlady) was examined as P.W.3 and she deposed that the petition schedule building is required for the business of her sons but none of her sons has been examined in support of her version. It is also submitted that the landlords are having another building which they have agreed to sell, as is evident from Ex.B.7 and the said building is adjacent to the petition schedule building and if really the landlords intend to run any business as alleged by them, they would have opened the business in another building which they have agreed to sell. It is further submitted that the action of the landlady in agreeing to sell another building to a third party goes to show that they are not a bonafide requirement of the petition schedule building. 8. Per contra, learned counsel for the respondents / landlady submitted that this Court, in C.R.P.No.688 of 2002, while remanding the matter to the lower appellate Court, allowed the parties to adduce evidence with regard to subsequent events and since evidence has been adduced and since the original plea of bonafide requirement is reiterated, there is no need to amend the petition. It is also submitted that whether the husband of P.W.3 is in need of petition schedule building or her sons is not a criteria, but, what is to be seen is whether the landlords bonafiidely require the petition schedule building or not and that once the landlords established their bonafide requirement of the petition schedule premises, the petition is to be allowed. It is further submitted by the learned counsel that the adjacent building was sold by the respondents as the said building is very small and it was not suitable for any business on the area of the building is 1/10th of the petition schedule building. 9. Having considered the above rival contentions, the points that arise for consideration in this revision are: i) Whether the petition is liable to be rejected for not amending the original pleading. ii) Whether Ex.B.2 establishes that the landlords are not in need of bonafide requirement of the petition schedule building. 10. It is not in dispute that the respondents sought eviction on three grounds i.e. willful default of payment of rents, securing alternative accommodation to do their business and bonafide requirement of the petition schedule building. 11. As seen from the averments of the petition, the respondent landlady had specifically pleaded that she requires the petition schedule building for her residence and for running fancy goods shop and any other decent business through her second son. She had also mentioned that there is no other building of her own in Vizianagaram Town. She had also pleaded that her second son was carrying on fancy goods business in a rented premises. The subsequent events show that her second son and the original landlady died. Admittedly, when the matter was pending before this Court, the first respondent herein had filed C.R.P.M.P.Nos.5340 of 2005 and 1533 of 2008 and categorically mentioned that the children of Josyula Jayaramadas – second respondent herein are working on daily wage basis in various shops and as such, the petition schedule building is urgently required. It is also contended that initially they filed a petition in 1991 and since then, somehow, the petitioners herein are continuing in possession of the petition schedule building. He had also mentioned in his affidavit that the third respondent is aged about 73 years and the fourth respondent is aged about 61 years (by March, 1978) and that they are senior citizens and they wish to do business in their own premises. This Court, in C.R.P.No.688 of 2002, while remanding the matter to the lower Court, observed that “However, in C.R.P.N.P.No.5340 of 2005 wherein subsequent events were brought to the notice of this Court, it was pleaded that during the pendency of the proceedings, the fancy and general merchants shop, which the second revision petitioner was having within the railway station premises was dismantled for extension of railway ticketing counter and at present he is jobless and there is no other source of livelihood and on this account also, they are entitled for relief of eviction”. The petitioners herein, in their counter in C.R.P.M.P.No.5340 of 2005, seem to have stated that they have no knowledge about the same. In the above circumstances, the matter was remanded to the appellate Court for recording fresh evidence. Consequently, the parties have let in fresh evidence. The first respondent herein was recalled and further examined. He had categorically deposed that during the lifetime of said Josyula Jayarama Das, he used to carry on Pan Shop business in the site belonging to the South Central Railway, Vizianagaram. Subsequently, during the year 1998 – 99, the site was taken back by the South Central Railway for improvement of the railway station and the second respondent did not carry on any business thereafter till his demise. He has also deposed that the two sons of the second respondent are not employed anywhere and they were not carrying on any business and they are married persons and the petition schedule building is necessary for eking out their livelihood. He denied the suggestion that during the lifetime of the said Josyula Jayarama Das, he was doing business in Railway Station in Pydipalli Ammavari Temple property and his children are continuing the said business in the same premises. P.W.2 – Josyula (Kailash) Kumar Das was also recalled and was further examined. According to him, he had six years of experience in hotel management and that the petition schedule building is suitable for running hotel business and for establishing business of fancy goods or other decent business. He further deposed that he, along with other respondents, require the petition schedule building for his livelihood and for the livelihood of the other respondents. P.W.3 who is the wife of said Josyula Jayarama Das was also recalled. She also deposed that after the death of her husband, her children are not able to get sufficient money for their maintenance and that the sixth respondent is a graduate and that her sons are eking their livelihood by doing casual work and they are not permanent employees anywhere and, therefore, they require the petition schedule building for their residence and for establishing business. 12. The second appellant was also recalled and he was further cross-examined. As far as the issue of bonafide requirement of the petition schedule building is concerned, he says that there is no record to show that the children of the second respondent had taken the shop of the temple for their business and also there is no record to show that the petitioners therein (respondents herein) own houses in Visakhapatnam Town. 13. Thus, it is clear that foundation was laid in the petition itself about the bonafide requirement of the petition schedule building and after remand of the matter also, evidence has been adduced in support of the same. Admittedly, when C.R.P.M.P.No.5340 of 2005 and C.R.P.M.P.No.1553 of 2008 were filed before this Court and when the matter was previously pending before this Court, it appears that the parties had full knowledge about the pleas being taken by them. 14. It is vehemently argued by the learned counsel for the petitioners that the respondents have not amended their petition and they have not taken any specific plea with regard to the subsequent developments i.e. with regard to the requirement of the petition schedule building by the children of the second respondent and by the other respondents and in the absence of any such plea, even if there is evidence, such evidence cannot be looked into. Now the respondents’ specific case is that the children of the second respondent are intending to do the business and they require the petition schedule building. The other respondents have also let in evidence to the effect that they too want to do business and, therefore, they require the petition schedule building for the said purpose. 15. Now the question that arises for consideration in this revision is that when the original landlady pleaded that the petition schedule premises is required for her occupation and for the business of her second son and when both of them died, whether their legal heirs can seek eviction of tenants for bonafide requirement of Legal Representatives of the original landlady. The next question that arises for consideration is whether the subsequent developments have to be taken into consideration without amending the petition. 16. Similar question came up for consideration before this Court in Urimi Kamakshamma (died) and others Vs. Bolem Seethamma[2] wherein, this Court observed as follows. “It is well settled that a Court or Tribunal has inherent power to take into consideration "events and facts, which have come into existence after initiation of proceedings" so as to consider any change either in fact or in law, which has supervened either before the delivery of judgment by the trial Court or at the stage of appeal.” 17. Thus, it is settled law that even at the appellate stage, the appellate Court can take into consideration the subsequent events. This Court, in Urimi Kamakshamma supra also relied on decisions of the Apex Court in cases betw een P. Venkateswarlu Vs. Motor and General Traders[3], Hasmat Rai Vs. Raghunath Prasad[4], Ramesh Kumar Vs. Kesho Ram[5] and Vishwasrao Dadasaheb Vs. Shankarrao D. Kalyankar[6]. 18. From the judgment in P. Venkateswarlu supra, this Court quoted as follows:- “...It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fairplay is violated, with a view to promote substantial justice -subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to continue it to the trial Court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are myriad. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the court can, and in many cases must, take cautious cognizance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed...” 19. In that case also, during the pendency of C.R.P., the parties have filed affidavits and the matter was remitted to the appellate Court to consider the additional documents. Thus, this Court observed as follows:- “In that view of the matter, the parties were very much aware of the existence of additional documents, and the reasoning of the appellate authority, is wholly unsustainable. The appellate authority held that in the absence of any specific pleading, the contention of the landlady-petitioners that the tenant secured alternative accommodation cannot be considered. On the one hand, the subsequent event contended by the tenant was accepted, but on the other hand, similar contention of the landlady was not taken into consideration on the ground of absence of pleading to that effect. The approach adopted by the appellate authority suffers from the vice of impropriety.” “. It is well settled that when a party desires to bring subsequent facts to the notice of the Court, it can do so by filing an affidavit or memorandum in the original proceedings or at the stage of appeal. In Ramesh Kumar case (2 supra), the Supreme Court indicated that subsequent events must be permitted to be brought on record by way of affidavits, and the procedure for doing so cannot be burdened with technicalities. The relavant observations from the judgment, read: When subsequent events are pleaded in the course of an appeal or proceedings of revision, the Court may, having regard to the nature of the allegations of fact on which the plea is based, permit evidence to be adduced by means of affidavits as envisaged in Rule 1 of Order 19, CPC. The Court may also treat any affidavit filed in support of the pleadings itself as one under the said provision and call upon the opposite side to traverse it. The Court, if it finds that having regard to the nature of the allegations, it is necessary to record oral evidence tested by oral cross-examination, may have recourse to that procedure.” 20. In case between Ramesh Kumar Vs. Kesho Ram[7] it was held as follows:- “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 parites 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.” 21. Therefore, as discussed above, once the landlords have pleaded about the bonafide requirement of the petition schedule building, that itself is sufficient and they need not specifically plead who are their family members who require the building. Whether the petition schedule building is required by original tenant or his legal heirs or other family member is not the criteria, but what is required to be seen is whether the landlords require the building or not and whether their requirement is bonafide or not. Be that as it is, in the instant case, the respondents came up with a specific averment in C.R.P.M.P.No.5340 of 2005 and C.R.P.M.P.No.1553 of 2008 before this Court and the petitioners were also given an opportunity to file counters and then the matter was remanded to the lower Court by this Court. Therefore, the petitioners had not faced with any surprise pleas while adducing additional evidence. The pleas taken by the respondents were also known to the petitioners and it was not a new plea. Therefore, the law on this aspect is very clear and since the subsequent averments cannot be taken into consideration and in the original petition itself a foundation was laid as to the bonafide requirement of the petition schedule building by the parties, I am of the view that there is no force in the contention of the learned counsel for the petitioner. 22. The other averments made by the learned counsel for the petitioners are that the petitioners have executed an agreement of sale to sell a small portion of the petition schedule building and, therefore, that portion would have been utilized by the respondents for their alternative accommodation. It has come in the evidence that the portion is sold is only 1/10th of the petition schedule building. It is subsequently argued that the petitioners have entered into an agreement to sell the petition schedule building and Ex.B.7 proves the same. As discussed above, Ex.B.7 is only a legal notice dated 05.05.1998 said to have been issued on the basis of an agreement dated 31.05.1994 and the contents of the said legal notice have been denied by the respondents herein in their reply notice. Mere issuing of notice without filing any suit for specific performance and without obtaining any decree in pursuance of the said agreement would not accrue any rights on the third parties and in the above circumstances, it cannot be said that the respondents have entered into agreement of sale of their property with third parties. 23. The Courts below have given cogent reasons in support of their judgments and be it noted that powers of this Court in revision are very limited. In fact, there cannot be any re-appreciation of evidence and once the findings of the Courts below appears to be based on proper appreciation of evidence, no interference of this Court is needed. Only for the purpose of ascertaining whether the findings of the appellate Court are based on evidence or not, the evidence and pleadings have been discussed above. 24. In view of the same, I hold that the revision is devoid of merits and the same is liable to be dismissed. Accordingly, the Civil Revision Petition is dismissed. The petitioners shall vacate the petition schedule building on or before 31st December 2010, provided they pay rents up to 31st December 2010 by the end of September, 2010 failing which, they stand vacated by the end of October, 2010. No costs. ______________________________ JUSTICE B.CHANDRA KUMAR July 26, 2010 Bvv [1] 2002 SCC (3) 98 [2] 2002 (3) ALT 490 [3] AIR 1975 SC 1409 [4] AIR 1981 SC 1711 [5] AIR 1992 SC 700 [6] AIR 2000 SC 3613 [7] AIR 1992 Supreme Court 700