IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Civil Revisions No.366 of 2001 and 367 of 2001. Date of decision:03.11.2008. 1. Civil Revision No.366 of 2001. Mohan Lal ….Petitioner Versus Bhupinder Kumar & Others ….Respondents 2. Civil Revision No.367 of 2001. Bhupinder Kumar ….Petitioner Versus Mohan Lal & Others ….Respondents. Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 Civil Revision No.366 of 2001. For the Petitioner: Mr.Sanjeev Kuthiala, Advocate. For Respondent No.1: Mr.Bimal Gupta, Advocate. Civil Revision No.367 of 2001. For the Petitioner: Mr.Bimal Gupta, Advocate. For Respondent No.1: Mr.Sanjeev Kuthiala, Advocate. Dev Darshan Sud,J. Both these revision petitions arise out of the order passed by the learned Rent Controller ordering the eviction of the tenant on the ground of personal bonafide requirement of the landlord and the tenant having made additions and alterations which have materially impaired the value and utility of the 1 Whether the reporters of Local Papers may be allowed to see the judgement? 2 tenanted premises. In appeal before the appellate Authority, the judgment was affirmed only on the ground of bonafide requirement of the landlord, but the other contentions regarding additions and alterations which have materially impaired the value and utility of the property were rejected. The landlord in Civil Revision No.366 of 2001 has challenged these findings, whereas the tenant in Civil Revision No.367 of 2001 has challenged the order of eviction as affirmed by the learned appellate Authority. The landlord in Civil Revision No.366 of 2001 moved an application being CMP No.306 of 2007 under Order 41 Rule 27 of the Code of Civil Procedure for bringing on record events arising subsequent to the filing of the petition and necessary for determination of the revision. This application was opposed on a number of grounds by the tenant. The application was heard alongwith the revision petitions. This application is being allowed. In this application, the landlord seeks to produce the affidavits of his daughters and photographs of the condition of the premises in which the landlord is living and more importantly, permission of the Municipal Council, Nahan, to the wife of the tenant for construction of a new house, the sanctioned plans of the building and the photographs showing that the building has been completed. So far as the affidavits of the daughters 3 are concerned, all that need be said is that they cannot be allowed to be produced at this stage of the proceedings. The sanction granted by the Municipal Council has been allowed to be placed on the record as Annexure A-1, the plan as A-2 and the photograph of the complete building is Annexure A-3. The reply filed by the tenant is evasive. So far as the construction of the house is concerned, the tenant replies that he does not own or possess any land in his name nor has constructed any house. He admits that the house has been constructed by his wife Satya Devi. This reply far from being satisfactory is evasive and discloses the mindset of the respondent who wants to hang on to the premises at any cost. The affidavits filed are being excluded from the evidence as it was open to the landlord to have produced his daughter in evidence. This application is filed in the year 2007. The tenant has not brought on record any evidence to rebut these allegations. It is by now well settled that events occurring during the pendency of the appeal/revision can be taken into consideration. In Amarjit Kaur vs. Pritam Singh and Others, (1974)2 SCC 363, the Supreme Court has held:- “4. … … … … … … … … that it is on the theory of an appeal being in the nature of a re-hearing that the courts in this country have in numerous cases recognized that in moulding the relief to be granted in a case on appeal, the 4 court of appeal is entitled to take into account even facts and events which have come into existence after the decree appealed against”. To similar effect is the decision of the Court in Bai Dosabai vs. Mathurdas Govinddas and Others, (1980)3 SCC 545:- “15. Shri Vakil finally submitted that the contract had become impossible of performance as a result of the enactment of the Urban Land (Ceiling and Regulation) Act, 1976. It is true that Section 5 (3) of the Act prohibits every person holding vacant land in excess of the ceiling limit before the commencement of the Act from transferring such land or part thereof by way of sale, mortgage, gift, lease or otherwise until he has furnished a statement as prescribed by the Act and a notification has been published after the prescribed procedure has been gone through. The Act came into force subsequent to the passing of the decree by the High Court. The question for our consideration is what is the effect of the Urban Land (Ceiling and Regulation) Act, 1976 on the decree passed by the High Court. While it is true that events and changes in the law occurring during the pendency of an appeal are required to be taken into consideration in order to do complete justice between parties and so that a futile decree may not be passed. It is also right and necessary that the decree 5 should be so moulded as to accord with the changed statutory situation. The right obtained by a party under a decree cannot be allowed to be defeated by delay in the disposal of the appeal against the decree, if it is possible to save the decree by moulding it to conform to the statutes subsequently coming into force. These proposition emerge from the decisions of the Court in Pasupuleti Venkateswarlu v. The Motor and General Traders AIR 1975 SC 1409 and Rameshwar v. Jot Ram (1976) 1 SCR 847 : (AIR 1976 SC 49 ). In Adil Jamshed Frenchman (D) L.Rs. vs. Sardar Dastur School Trust and others, AIR 2005 SC 996, the Supreme Court held: “9. It cannot be denied that the documents sought to be produced by the tenants are material and if substantiated, would have a material effect on the case of the landlords of their bona fide need of the suit premises. If, in fact, the landlord has entered into negotiations with M/s. Godrej Boyce Co.Ltd for selling or use by them of the property, the need cannot be said to be genuine. Similarly, a change in the construction plan may show that the alleged need of the landlord for the construction may not be genuine. The third document proposes to demolish the case of availability of the funds for construction with the landlord. Two of the documents came into existence 6 after the passing of the decree by the trial Court. Similarly, the correspondence entered into by the landlord with a third party could not have been within the knowledge of the tenant and therefore, the tenants’ statement that the documents could not have been produced before the trial Court, in spite of the exercise of due diligence, was highly probable. In such circumstances, the High Court was not justified in interfering with the discretion exercised by the first appellate court permitting additional evidence”. The same principle was reiterated in Ram Kumar Barnwal vs. Ram Lakhan(Dead), (2007)5 SCC 660, by the Court holding that: “11. … … … … … … … …the court has power to take note of subsequent events and mould the relief accordingly subject to the following conditions being satisfied: (i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted; (ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; and (iii) that such subsequent event is brought to the notice of 7 the court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise.… … … …” 12. And in Pasupuleti Venkateswarlu v. Motor & General Traders, 1992 Supp(2) SCC 623 Justice Krishna Iyer said: (SCC p.772, para 4) `We feel the submissions devoid of substance. First about the jurisdiction and propriety vis-à- vis circumstances which come into being subsequent to the commencement of the proceedings. 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 fair play is not violated, with a view to promote 8 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 confine 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.” Such accommodation now being available to the tenant, even if the submissions made on behalf of the tenant are accepted, it would be iniquitous to drive the landlord to another round of litigation for the eviction of the tenant. The stand taken by the respondent in the reply is so evasive that it leaves no doubt in my mind that the tenant only wants to protract the litigation. His own house having been built, he would want to continue on the tenanted premises for the obvious reason that the rent payable for his occupation is very meager. Adverting further to the facts, the learned Rent Controller tried the petition on four basic issues which were raised, namely, (a) whether the tenant was in arrears of rent, amounting to Rs.19,400/-, (b) whether the rent of the tenanted premises is Rs.1000/- per month, (c) whether the premises are required bonafide by 9 the petitioner for his own personal use and occupation and (d) whether the additions and alterations, which have been undertaken by the tenant, have been materially impaired the value and utility of the tenanted premises. The learned Rent Controller held that rent was being paid at the rate of Rs.50/- per month and that the tenant-respondent was in arrears amounting to Rs.9850/- from 1982 till February, 1999 and these issues were decided accordingly. On the third and fourth issues, which were taken up together for discussion by the learned Court below, the learned Rent Controller on the basis of the evidence of PW-1 Beer Singh, Junior Assistant in the office of the DRO, Nahan, PW-2 Ramesh Kumar son of the landlord Mohan Lal, PW-4 Rattan Lal and PW-5 Kashmiri Lal holds in favour of the landlord. A preliminary objection was taken to the grant of relief on the ground that landlord Mohan Lal did not appear as his own witness and his son PW-2 appeared in his stead, as such, an adverse inference should, be drawn against the landlord. This submission has been considered by both the Courts below and rejected. PW-2/A is the Power of Attorney executed by the landlord in favour of his son and recites that the reasons for constituting PW-2 son of the landlord as a General Attorney is that the landlord does not keep good health. While appearing as a witness, PW-2 has stated that his father is not clear in his speech and is also ailing physically which prevents him from attending the 10 Court and his day to day work. The evidence as recorded shows that this witness is conversant with the entire facts of the case and is not someone who has been prompted for speculative litigation. He has been cross- examined thoroughly and there is nothing in his evidence which would show his ignorance as to his basic knowledge of facts. The contention of drawing adverse inference against landlord-petitioner has been rightly rejected. The learned trial Court holds that the accommodation available for the occupation of the landlord is meager and hardly sufficient for his occupation leave alone to accommodate his daughters who are now married and visiting him off and on. Moreover, the site plan Ex.PW- 2/B showing the accommodation in possession of the petitioner-landlord has not been controverted. He is in occupation of only two small rooms. On the question of additions and alterations, the learned trial Court holds that additions have been made by the tenant without the consent of the landlord. He has constructed one room in place of the original kitchen, a new kitchen in place of the old latrine and shifted that to another part of the rented premises. This is based on the evidence of PW-2, PW-4 and PW-5. The learned appellate Authority not only reaffirms the personal bonafide requirement of the landlord, but holds that the evidence on record 11 satisfies the statutory requirements for grant of the decree. On the question of additions and alterations, the learned appellate Court holds that the material alterations have never been objected to by the landlord and now he cannot make any grievance regarding this fact. This finding of the learned Court cannot be sustained. He has not examined the evidence of PW-2, PW-4 and PW-5 in its totality and has confined his findings only to the issue of converting the dry latrine into a flush latrine which does not constitute material impairment or value and utility of the premises. He does not consider the evidence which shows the conversion of portions of the tenanted premises into another room, kitchen and shifting of the latrine to another place. If it was statutory mandate that a dry latrine should be converted into flush latrine then in that event nothing stopped the respondent from informing the landlord and then going ahead with construction. The findings of the appellate Authority are, therefore, modified. Learned counsel appearing for the tenant urges that the very foundation of the claim of bonafide requirement is not established on the record of the case. This is far from the truth. Having examined the requirement of the landlord in relation to the availability of the accommodation, both the Courts below have concurrently decided in favour of the landlord, I 12 am not inclined to take a different view after scrutinizing the entire evidence on the record. Moreover, I have also allowed CMP No.609 of 2007 and taken on record the order of sanction, sanctioned plan, photographs of the house constructed by the tenant which is available for his occupation. The Himachal Pradesh Urban Rent Control Act is not meant for the tenants to make profit from landlord’s property while subjecting the landlord to stay in premises which are dark and dingy, and insufficient for his need. Civil Revision No.366 of 2001 is accordingly allowed. Judgment of the appellate Authority is modified to the extent that it holds that no material additions/alterations have been made. Civil Revision No.367 of 2001 is dismissed. There shall be no order as to costs. November 3, 2008. (Dev Darshan Sud) (aks) Judge.