Civil Revision No.833 of 2002 : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: January 30, 2008 Satinder Lal Sharma and another .....Petitioners VERSUS Jai Ram Bansal ....Respondent CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr.M.L.Sarin, Senior Advocate with Mr.Hemant Sarin, Advocate, for the petitioners. Mr.Chetan Mittal, Advocate, for the respondent. **** RANJIT SINGH, J. Tenant-petitioners have filed this revision to impugn the order passed by the then Rent Controller, Chandigarh on 6.12.1999 directing their eviction, which was up-held by the Appellate Authority vide its order dated 7.11.2001. The petitioners are tenants in a shop portion of the ground floor of SCF No.1, Sector 23-C, Chandigarh adjacent towards SCF No.2, Sector 23-C, Chandigarh. As per the allegations, the demised premises was let out to Nand Lal (since Civil Revision No.833 of 2002 : 2 : deceased) at the rate of Rs.180/- per month plus Rs.15/- per month as water charges, excluding the electricity charges. The revision petition was filed on the ground of sub-letting of the premises by Nand Lal to the present petitioners, whereas Nand Lal had completely left Chandigarh and was statedly spending his retired life at Panchkula. It is disclosed that the earlier petition on the ground of sub-letting was filed, which was dismissed and the present petition was being filed on finding that complete possession has been parted with by the tenant and thus the petitioners were liable to be evicted. The landlord claims himself to be in occupation of remaining portion of the ground floor and that of the first and second floors, which he claims to be using as residence of his family. One of his son, namely, Vijay Kumar is running his business in the remaining portion of the ground floor. His plea further is that out of his three sons, Subhash Kumar could not get any job inspite of several efforts and was not engaged in any work as there was lack of sufficient accommodation. The respondent-landlord is helping his son Vijay Kumar only and thus he along with his son Subhash Kumar want to start a new business in the demised premises after getting it vacated. It is accordingly pleaded that the requirement of the respondent- landlord is bona fide and he has also made necessary averment regarding he having not vacated any other non-residential accommodation in an urban area. It is further pointed out that the respondent had succeeded in evicting the petitioners on the ground of personal necessity, but he could not get the possession of the demised premises due to enforcement of the Act. This fact, however, is Civil Revision No.833 of 2002 : 3 : highlighted by the respondent to say that the present petition is not maintainable on account of res judicata, wherein the petition was dismissed by the Rent Controller, the grounds of sub-letting and personal necessity being pleaded in the second petition as well. Plea further is that the demised premises being commercial cannot be got vacated on the ground of personal necessity and the ratio of law laid down by the Hon'ble Supreme Court in the case of Harbilas being applicable only to the State of Punjab. Plea of the petitioners further is that the building is needed for their livelihood and in case they are directed to be evicted from the shop, they would suffer hardship. Allegations of concealing material facts on the part of respondent- landlord are also made, wherein it is alleged that he has not made reference to the dismissal of his petition by R.K.Gupta on 22.2.1974. Reference further is made to a suit filed by the respondent-landlord in the year 1972, whereby eviction of the petitioners was ordered, but the parties had compromised. In this background, it is pleaded that the present eviction petition would not be maintainable. Denying the allegation of sub-letting, it is pointed out that the petitioners are sons of late Nand lal and were helping their father. It is claimed that all of them are living jointly and having common mess and so are joint in their business ever since of their tenancy. To counter the personal need of the respondent-landlord, it is stated that he is 75 years old and otherwise having a flourishing business in the remaining portion of the shop. It is also stated that Subhash Kumar, son of the landlord, is well settled in his business. It is alleged that the present petition has been filed just to seek enhancement of the rent, otherwise the need of the respondent-landlord as projected is Civil Revision No.833 of 2002 : 4 : not bona fide. The Rent Controller framed the following issues:- 1. Whether the respondent is liable to be evicted from the demised premises on the ground of sub-letting and personal necessity? OPA. 2. Whether the petition is not barred by principle of res- judicata?OPD. 3. Whether the petition is not maintainable? OPD. 4. Relief. The parties were allowed to lead their respective evidence. The Rent Controller decided all the issues in favour of the respondent-landlord and directed eviction of the petitioners from the demised premises. The petitioners remained un-successful in the appeal and thus have filed the present revision petition. At the time of admission, the counsel for the petitioners appears to have adopted a soft course available to him by pointing out that the issue relating to eviction of the commercial property on ground of personal necessary in the Union Territory, Chandigarh was under consideration by the Hon'ble Supreme Court. Noticing this fact, this court admitted the revision petition and stayed the dispossession of the petitioners. Liberty was given to the parties to make an application for fixing the matter for hearing after the decision of the civil appeal pending before the Hon'ble Supreme Court. During the pendency of the revision petition, the respondent-landlord filed a Misc.Application in the year 2005 and made a prayer for fixing the mesne profits and compensation for use and occupation of the premises in view of the law laid down by the Hon'ble Supreme Court Civil Revision No.833 of 2002 : 5 : in the case of Atma Ram Properties (P) Ltd. Vs. Federal Motors (P) Ltd., 2005(1) SCC 705. This application ultimately was deciding by this court on 24.5.2006 holding that respondent-landlord would be entitled to payment of the mesne profits with effect from the date when the stay order was granted by this court, i.e., 6.2.2002. The arrears of the mesne profits upto 31.7.2006 was directed to be paid upto 10.8.2006. The mesne profits was calculated at the rate of Rs.8100/- per month and it was directed that mesne profits for the subsequent months shall be paid on or before 10th of each subsequent month started from the month of August, 2006. The petitioners instead of paying the rent as due, filed a Special Leave Petition before the Hon'ble Supreme Court impugning the order passed by this court dated 24.5.2006. The said Special Leave Petition, however, was withdrawn by the petitioners, wherein they sought time to deposit the arrears of rent in instalments. The Hon'ble Supreme Court was gracious enough to give liberty to the petitioners to move this court in that regard if so advised. The order passed by the Supreme Court on 29.10.2007 reads as under:- “The Special Leave Petition is allowed to be withdrawn. However, the petitioners seek time to deposit the arrears in instalments. Liberty is given to him to move the High Court in that regard, if so advised.” Even thereafter, the petitioners neither moved an application for depositing the amount due in instalments as had been permitted by the Hon'ble Supreme Court nor did they take any action to deposit the amount payable. The respondent-landlord moved yet Civil Revision No.833 of 2002 : 6 : another Misc. Application No.21000-CII of 2007 for vacation of stay on the ground that the petitioners had failed to comply with the directions passed by this court even despite their Special Leave Petition having been dismissed against the said order. When the case came up for hearing before this court on 8.1.2008, this court vacated the interim order dated 24.5.2006 and adjourned the revision petition for final arguments. That is how this revision petition has come up for hearing. It is, thus, clear that the petitioners have failed to comply with the directions issued by this court and up-held by the Hon'ble Supreme Court and have chosen to make the submissions on merits. During the course of arguments, Mr.Sarin was candid enough to concede that petitioners are in no position to pay the amount of mesne profits as assessed and as such pleaded for hearing and decision of the main revision petition. Mr.Sarin would first contend that the present application filed by the respondent-landlord is barred by principle of res judicata and would challenge the finding on issue No.2 returned by the courts in this regard. In support of his submission, he has placed reliance on V.C.Charati v. Hussein Nhanu Jamadar, JT 1998(8) SC 120. The plea of the counsel is that even a wrong decision would not become nullity and it would continue to bind the parties unless set-aside. This of course is countered by the counsel for the respondent-landlord by seeking support from various judgments, which are to the effect that question of bona fide requirement must be considered with reference to the time when the suit for eviction is filed and it cannot be assumed that the landlord did not have bona fide and genuine Civil Revision No.833 of 2002 : 7 : necessity ever in future if question of bona fide requirement is decided against the landlord. Counsel would refer to the case of Surajmal Versus Radheysham, AIR 1988(1) 511. Similarly, in case of N.R.Narayan Swamy Vs. B.Fancis Jagan, 2001(2) RCR 169, it is held by the Supreme Court that a fresh suit on the ground of bona fide requirement can be filed when genuine necessity arises in future. In this case, the Hon'ble Supreme Court made these observations while dealing with the plea of res judicata, where suit for eviction on the ground of bona fide requirement had been dismissed. Reference is also made to the case of Mathura Prasad Sarjoo Jaiswal and others Versus Dossibai N.B.Jeejeebhoy, AIR 1971 SC 2355 to say that a question relating to jurisdiction of a court cannot be deemed to have been finally determined by an erroneous decision of that court. If by an erroneous interpretation of the statute the court holds that it has no jurisdiction, the question would not operate as res judicata. Next plea of Mr.Sarin is that the subsequent event relating to death of son of the respondent-landlord is required to be taken into consideration, since the need was pleaded on the ground of settling the son, who has expired on 14.8.2005. This is required to be taken into consideration and would affect the decisions rendered by the courts which are impugned by way of present revision petition. The petitioners had filed Misc.Application No.5739-CII of 2006 for bringing on record the relevant subsequent event. It is stated that on 14.8.2005, the son of the respondent-landlord, Subhash Kumar Bansal, died and it is accordingly pleaded that the respondent- landlord, who himself is over 80 years, is in no position to start and run any independent business. The ground of personal necessity Civil Revision No.833 of 2002 : 8 : pleaded on the basis of settling his son would thus clearly vanish. It is pleaded that the ground of bona fide personal necessity must continue to exist till the date the proceedings are finally disposed of. In support of this submission, reference is made to the case of Baba Kashinath Bhinge Vs. Samast Lingayat Gavali,1995(1) RCR 518. While referring to the provisions of Bombay Rents, Hotel and Lodging House Rates Control Act, it is held that decree of ejectment cannot be granted if the need did not continue to exist at the time of passing the decree. Reference is also placed on Rabindra Kumar Ghosel Vs. The State of West Bengal, AIR 1975 Supreme Court 1409 to say that High Court in revision is bound to take note of subsequent event in disposing of the proceeding. Case of Ram Kumar Barnwal Versus Ram Lakhan (dead), 2007(2) RLR 32 is also pressed in this regard, wherein it is held that the court has power to take note of subsequent events and to mould the relief if the relief originally claimed has by reason of subsequent events become inappropriate and cannot be granted and also where taking note of such subsequent event and changed circumstances would shorten litigation. Ofcourse, it is held that such event is to be brought to the notice of the court promptly in accordance with the rules of procedural law so that the opposite party cannot be taken by surprise. In fact, the ratio that can be culled is that court is not precluded from taking “cautious cognizance” of subsequent events or facts to mould relief. Reference further is made to Prabha Arora & Anr. Versus Brij Mohini Anan & Ors., 2007 (2) RLR 593, Nathi Devi Versus Radha Devi Gupta, 1998(2) RLR 628 and S.Narayana Versus V.Paidiraju, 1983(1) RLR 340 in support of the submissions so made. Civil Revision No.833 of 2002 : 9 : On the other hand, counsel for the respondent while relying upon various judgments would plead that bonafide need of landlord is to be examined on the date of institution of the proceedings. He would refer to the cases of Shakuntala Bai and others Versus Narayan Das and others, (2004) 5 Supreme Court Cases 772 and Shantilal Thakordas and others Versus Chimanlal Maganlal Telwala, AIR 1976 Supreme Court 2358, where it is held that right to sue even on account of death of a landlord would survive. The counsel would also refer to Sait Nagjee Purushotham & Co. Ltd. Versus Vimalabai Prabhulal and others, 2005(8) Supreme Court Cases 252 to contend that the process of litigation cannot be made the basis for denying landlord a relief while litigation at last reaches the final stages. It is held that while considering the affect of subsequent event, the rights and obligations of parties are to be determined on date of petition and subsequent events can be taken into consideration for moulding relief, provided such events are of such a nature and dimension as to completely eclipse the need and make it lose significance altogether. Reference is also made to the case of Kamleshwar Prasad Versus Pradumanju Agarwal (dead) by LR's,. AIR 1997 Supreme Court 2399 to say that bona fide need for starting business does not lapse on the death of landlord as the business can be carried out by a widow. In this regard reference is also made to Gaya Prasad Versus Pradeep Shrivastava, AIR 2001 Supreme Court 803, according to which the crucial date for deciding the bona fide need is the date of application and subsequent events pendente lite can be taken into consideration only when the need of a landlord is completely eclipsed by subsequent events. It is further Civil Revision No.833 of 2002 : 10 : held in Ramesh Kumar Versus Kesho ram, AIR 1992 Supreme Court 700 that the court can take into consideration subsequent events if same has material bearing on the relief. I have considered the rival contentions raised before me. The plea of res judicata as raised by the counsel for the petitioners in my view would not lead his case to call for interference in the impugned order. The judgment relied upon by the counsel in the case of V.C.Charati (supra) would not have any applicability to the facts and circumstances of the present case. Similarly the case of Salim Ahmed Versus Surjit Kumar Sahai, 1998(3) PLR 182 was considering the aspect from altogether different angle when it observed that it is not the whimsical or fanciful desire of the landlord to urge bonafide requirement at any time or every time but there has to be an element of need before it can be stated to be a bona fide. In the instant case, the present application has been filed on the ground that respondent-landlord needed this premises for settling his son. As has been observed by the Rent Controller, the son of the landlord was 34 years old at the time of filing the present petition and was merely ten years old when the earlier petition on the ground of personal necessity was filed. Though the son was 34 years old, but still was un-employed. The need of the respondent, thus, had undergone a change compared to earlier position and as such the observations made in the cases relied upon by the counsel for the petitioners would not be of much avail to him. The much emphasis laid by the counsel for the petitioners on the subsequent event relating to death of son of the respondent- landlord would also, in my view, would not come to the rescue of the Civil Revision No.833 of 2002 : 11 : petitioners. No doubt, as per the various judgments referred to by counsel for the parties, subsequent events can be taken into consideration, but the moot point still would remain as to the effect thereof on the relief claimed or granted. The ratio of law as would emerged from these judgments is that bonafide need of a landlord has to be examined on the date of the institution of the proceedings. The subsequent event even in regard to death of the landlord is to be taken into consideration and would have the affect on the relief if the need of the landlord is completely eclipsed by such subsequent events. The bona fide requirement accordingly is to be seen and considered with reference to the time when the suit is filed and the plea of res judicata would also not be available in those cases where the need and necessity is found to be bona fide and genuine in future. It is required to be noticed in this case that the bona fide need of the landlord was to the effect that he wanted to settled his son and start a business himself with his son, who is no more. On the basis of the pleas that have been made in this case, it cannot be said that with the death of son of the respondent-landlord, his need would get completely eclipsed. The argument that respondent-,landlord otherwise is 80 years old would deserve to be rejected and precedent in this regard can be had in numbers of cases where the courts have taken a consistent view that age alone itself is no ground to bar a particular person from continuing or starting a business. There is nothing on record to show that the respondent-landlord is incapable of doing the business such as photostating etc. or any other such like business. One may also not lose sight of the fact that the rent petition was instituted in the year 1995 and is awaiting adjudication Civil Revision No.833 of 2002 : 12 : till date. The respondent-landlord was certainly 13 years younger when this petition was filed. Considering the totality of the facts and circumstances of this case, the impugned order would not call for any interference, notwithstanding the plea raised by the counsel for the respondent that the petitioners would not deserve hearing and consideration as they have now complied with the directions of this court as well as of the Hon'ble Supreme Court. The revision petition is dismissed. January 30, 2008 ( RANJIT SINGH ) ramesh JUDGE