Case: M.M. Quasim Vs. Manohar Lal Sharma and Others

Respondents 1 and 2 are the brothers sons of respondent 3 Kishorilal Vishwakarma. Respondents commenced an action for ejectment of the appellant under section 11 (2)(c) &(d) of the Bihar Buildings (Lease, Rent &Eviction) Control Act. 1947 (Rent Act for short) from a shop forming part of holding No. 188 of Ward No. 3 within the area of Giridih municipality in Biharfor possession was founded on the ground mentioned in s. 11 (1) (c) alleging that the respondents in good faith required possession of the shop for opening an office and a clinic by first respondent Manoharlal Sharma who by then had become a qualified medical practitioner having obtained M.B.B.S. degree. The additional ground on which the claim rested was the usual one of de fault in payment of rent for a period of two months and more as envisaged by s. 11 (1) (d). Default complained of was failure to pay rent for the months of September, October and November,contested the suit, inter alia, contending that he did not commit default in payment of rent for the months of September, October and November, 1972, and that the same was paid but no receipt was passed and that as the respondents were avoiding statutory liability of passing the receipt acknowledging payment of rent the appellant was forced to send the rent by Money Order from December 1972 and he sent the same month after month, and, therefore, he could not be dubbed a defaulter within the meaning of s. 11(1) (d). Controverting the ground of personal requirement, the appellant contended that the property belonged to a firm and, therefore, the same cannot be claimed for the use of any one partner for his business other than the business of the firm. And in any case, the respondents have number of houses in their possession and the requirement alleged on behalf of Manoharlal Sharma was incorrect and unwarranted.The learned trial judge framed as many as nine issues. He held against the appellant both on the question of default in payment of rent and the personal requirement and after answering some technical defences raised by the appellant, learned trial judge decreed the suit. The appellant preferred an appeal to the appellate authority. W hen the appeal was pending before the learned Second Additional Subordinate Judge, Giridih, the appellant filed an application supported by an affidavit on September 28, 1976, purporting to be under order 41, rule 27, Code of Civil Proced ure contending therein that as originally contended by him the shop belongs to a firm and in Suit No. 4 of 1974 there has been a partition of the properties amongst the members of the firm and the suit shop has been allotted to one Pyarelal , who is neither a plaintiff nor a party to the proceedings and if the shop now belongs to Pyarelal as an exclusive owner, the respondents and especially respondent 1 Manohar Lal Sharma cannot seek to evict the appellant for his personal requirement of the suit shop. This application was filed with an affidavit drawn at the foot of the application itself. The learned appellate judge referred to this application in paragraph 12 of his judgment and negatived the contention therein raised observing that allotment of the suit shop to Pyarelal has taken place after the suit was filed and that as earlier the respondents were accepted by the appellant as the landlords of the suit shop, the subsequent partition dec ree would not help the appellant. He then made a cryptic observation that in any view of the matter the finding of the learned Munsif regarding personal necessity is correct and there is no ground for interference. He agreed with the finding of the trial Court that there was default in payment of rent for a period of three months, and, therefore, also the respondents were entitled to a decree for eviction on the ground mentioned in s. 11 (1) (d) of the Rent Act. Accordingly he dismissed the appeal with costs.A second appeal to the High Court by the tenant met with the same fate. It is, however, advantageous to notice the approach of the High Court to the two contentions raised on behalf of the appellant. The contention of the tenant that the ground for personal requirement of respondent 1 Manoharlal Sharma no more survives because he has no subsisting interest in the suit shop in view of the partition decree in Suit No. 4 of 1974 was ne gatived observing that the appellant had not moved the first appellate court with a proper application under order 41, rule 27 of theCode of Civil Procedure and as there was no such application on the record of the case the contention coul d not be entertained. Alternatively, the High Court found it difficult to accept the contention that during the pendency of the appeal if the house in question was allotted to the share of one of the co-sharers of the decree (sic) the decree which had been passed in their favour becomes nullity and is liable to be set aside by the appellate court on this ground alone. Relevant to the second contention the High Court observed that the appellant did not challenge the finding of the two courts below on the question of default in payment of rent. Accordingly the High Court dismissed the second appeal with costs. Hence this appeal.

Reasoning:
The procedural conundrum may be cleared out at the threshold. Was there a proper application before the appellate court under order 41, rule 27. It must be answered in the affirmative. The application Annexure II page 36 of the record recites in its title as: Petition under order 41, rule 27 of the Civil Procedure Code. It is founded on an affidavit. It is a well recognised practice commonly adopted in courts that where an application is required to be supported by an affidavit the application is drawn up and at the foot of it an affidavit is sworn. Even taking the most technical view of the requirement of order 41, r.27, C .P.C. the petition purporting to be under order 41 rule 27 meets with the requirement of the situation. The contention of delay in moving the application will be presently examined but the High Court could not have rejected the contention raised by the appellant on the ground that a proper application under order 41, rule 27, is not to be found on record. To some extent this observation would indicate that the record of the case was not examined with the thoroughness as is expected in disposing of the appeal. In fact, the first appellate court whose grievance was that the application was filed after the arguments were concluded, has had no objection in treating the application to be one under order 41, rule 27. I t has been so treated and has been disposed of on merits as per the passage from the judgment extracted hereinbefore. The High Court, therefore, was squarely in error in rejecting the contention on the narrow ground that there was no proper application under order 41, rulewhile taking advantage of the enabling provision enacted in s.11 (1) (c), the person claiming possession on the ground of his reasonable requirement of the leased building must show that he is a landlord in the sense that he is owner of the building and has a right to occupy the same in his own right. A mere rent collector, though may be included in the expression landlord in its wide amplitude cannot be treated as a landlord for the purposes of s. 11 (1) (c). This becomes manifestly clear from the explanation appended to the sub-section. By restricting the meaning of expression landlord for the purpose of section 1 1(1)(c), the legislature manifested its intention namely that landlord alone can seek eviction on the ground of his personal requirement if he is one who has a right against the whole world to occupy the building himself and exclude any o ne holding a title lesser than his own. Such landlord who is an owner and who would have a right to occupy the building in his own right, can seek possession for his own use. The latter part of the section envisages a situation where the landlord is holding the buildings for the benefit of some other person but in that case landlord can seek to evict tenant not for his personal use but for the personal requirement of that person for whose benefit he holds the building. The second clause contemplates a situation of trustees and cestique trust but when the case is governed by the first part of sub clause (c) of sub-section (1) of s.11, the person claiming possession for personal requirement must be such a landlord who wants possession for his own occupation and this would imply that he must be a person who has a right to remain in occupation against the whole world and not someone who has no subsisting interest in the property and is merely a rent collector such as an agent, executor, administrator or a receiver of the property. For the purposes of s. 11(1)(c) the expression landlord could, therefore, mean a person who is the owner of the building and who has a right to remain in occupation and actual possession of the building to the exclusion of everyone else. It is such a person who can seek to evict the tenant on the ground that he requires possession in good faith for his own occupation. A rent collector or an agent is not entitled to occupy the house in his own right. Even if such a person be a lessor and, therefore, a landlord within the expanded inclusive definition of the expression landlord, nonetheless he cannot seek to evict the tenant on the ground that he wants to personally occupy the house. He cannot claim such a right against the real owner and as a necessary corollary he cannot seek to evict the tenant on the ground that he wants possession of the premises for his own occupation. That can be the only reasonable interpretation one can put on the ingredients of sub-clause (c) of s. 11(1) which reads:"Where building is reasonably and in good faith required by the landlord for his own occupation.. ".Assuming that the expression landlord has to be understood with the same connotation as is spelt out by the definition clause, even a rent collector or a receiver of the property appointed by the Court in bankruptcy proceedings would be able to evict the tenant alleging that wants the building for his own occupation, a right which he could not have claimed against the real owner. Therefore, the explanation to clause (d) which cuts down the wide amplitude of the expression landlord would unmistakably show that for the purposes of clause (c) such landlord who in the sense in which the word owner is understood can claim as of right to the exclusion of everyone, to occupy the house, would be entitled to evict the tenant for his ownthe first appellate court and the High Court acted in accordance with law in ignoring this subsequent event of vital importance ? The first appellate court, as pointed out earlier, proceeded to examine the contention on merits and rejected it on the ground that this being an event subsequent to the passing of the decree by the trial court, no notic e could be taken of it, a view contrary to the law laid down by this Court. Same is true of the High Court when it said that even if the landlord who commenced action lost all interest in the property subsequent to the passing of the decree, the dec ree does not become a nullity and at any rate no note of the subsequent events can be taken in the absence of a proper application under order 41, rule 27, C.P.C. But the next observation of the High Court that where the plaintiff landlords interest in the property is extinguished subsequent to the decree by the trial court, he does not lose his right to maintain and continue the action, is opposed to the very scheme of the Rent Act and the provisions contained in ss. 11(1)(c) and 12. Both the courts were, therefore, clearly in error in ignoring this vital piece of evidence which goes to the root of the matter and would surely non-suit the plaintiffs.Once this subsequent event of landlords interest in the property getting extinguished as the property in question is allotted as an exclusive owner to a sharer upon a partition amongst co-sharers, is properly evaluated, unless some proper explanation is offered by the landlords who are parties to the proceedings, the plaintiffs are liable to be non-suited. This does not require much of a discussion because plaintiffs sought possession for personal requirement of respondent 1 Manohar Lal Sharma. Monohar Lal Sharma wanted to start his clinic, as he is a qualified medical practitioner, in the suit premises. Manohar Lal Sharma is neither an owner nor a co-owner nor he has any interest in the suit property since the date of partition effected by compromise between the co-sharers in Suit No. 4/75. If action were to start today a or day after the decree for partition, could Manohar Lal Sharma ever file a suit for evicting the present appellant from the suit shop on the ground that he wanted to start his clinic in the suit shop ? If Manoharlal Sharma can bring such an action he can as well evict any tenant from any premises with which he has no connection. Even if at the commencement of the action Manoharlal Sharma was a co-owner alongwith his brother and uncle and, therefore, he had a semblance of title to commence action for eviction, once the co-owner parted company, partitioned property by metes and bounds and the suit property came to be allotted to Pyarelal as an exclusive owner. Manoharlal Sharma cannot claim eviction of the tenant from such property in which he has no subsisting interest. And even if this event occurred subsequent to the passing of the decree by the trial court, this subsequent event should have been noticed at the appellate stage because the appeal is nothing else but a continuation of the suit and in a proceeding under the Rent Act the relief has to be moulded according to the situation on the date of the decree; the decree would mean the decree which is final and not correctible by any judicial proceeding. Manoharlal Sharma, therefore, cannot seek to evict the tenant for his personal requirement. Therefore, the suit for eviction under s.11(1)(c) would ordinarily fail on this ground. However, as the fresh evidence is being taken into consideration and as both the appellate courts and the High Court, have erred in approaching the matter by ignoring the subsequent event, it would be presently pointed out that in order to do justice between the parties the matter will have to be remanded to the first appellatewhat the High Court states in its judgment on the question whether a particular finding was challenged or not challenged is entitled to highest respect at our hands and must ordinarily be always accepted. We have lingering hesitation in the facts of this case for two specific reasons: (i) that there are some recitals in the judgment of the High Court specifically referred to herein before which show that certain aspects have been disposed of cursorily, lacking precision; and (ii) that a tenant who examined as many as eight witnesses including himself to prove that the rent was paid and who specifically pleaded that fact in reply to the notice ser ved by the landlords and who meticulously fought his case by making an application for additional evidence at the appellate stage would not give up the contention and if he had in fact given it up there was no justification for still taking th e matter to the highest court. Even then we would have overlooked the contention to the contrary and accepted what has been stated in the judgment but for the fact that subsequent event stated hereinabove may have a direct impact on the title of the landlords-respondents to evict the appellant on the ground of non-payment of rent.If on examining and evaluating the contents of the certified copy of the decree in partition suit No. 4/74 it is established conclusively that the property has been exclusively allotted to Pyarelal who has not applied to be joined as party to these proceedings though he has filed some affidavit in this appeal before this Court and if no reservation is made in the decree for contin uation of the proceedings for recovering possession on the ground of non- payment of rent in favour of the present respondents nor have the present respondents undertaken any liability to continue the proceedings on behalf of Pyarelal Sharma fo r the limited purpose of recovery of rent, in our opinion it would be extremely doubtful if the respondents can still maintain the action for recovering rent and for possession on the grounds mentioned in s. 11(1)(c) &(d). That aspect has not a t all been examined either by the first appellate Court or by the High Court. If A, a landlord commences action for eviction against his tenant on the only ground of non-payment of rent and during the pendency of the proceedings transfers the property lock stock and barrel to a third person and if the third person is not before the Court, without finally expressing any opinion because the remand is contemplated, it is just unthinkable that such a landlord can continue the suit eve n after he had no interest in the property. The aspect may have to be examined in The background of the contract between the landlord who commenced the action and his transferee, or the transferee having reserved some right came to the Cou rt for being impleaded as a party to continue the action and his, right to continue, may be examined. These aspects arc not examined by any Court though decision on them goes to the root of the matter. Therefore, a remand is inevitable in t he circumstances of this case.It would unquestionably appear that the learned judge entertained the application for additional evidence, took it on record and examined it on merits.9. In this background, in our opinion, the High Court was clearly in error in ignoring this evidence in second appeal on a technical consideration that a proper application under order 41, r. 27 was not placed before the first appellate court. Here is what the High Courtany additional evidence is produced before an appellate court a regular application under order 41, rule 27 of theCode of Civil Procedure is filed. There is no such application in the records of thethis is contrary to record. But the High Court appeared to be in two minds when it proceeded to entertain the contention on merits and negatived it on merits. Says the High Court further on this point asfrom that, it is difficult to accept the contention that during the pendency of the appeal if the house in question is allotted to the share of one of theof the decree, the decree which had been passed in their favour becomes nullity and is liable to be set aside by the appellate court on this ground alone. This aspect of the matter has (sic) considered on several occasions by this Court where the plaintiff, during the pendency of the suit has assigned his interest. Even in those cases it has been held that by mere assignment the plaintiff does not lose the right to maintain the suit. In my view, the position will be all the more difficult for the defendant if any such objection is taken for the first time in the court of appeal.What precedents are relied upon by the High Court when it says that the aspect required to be considered by it has been examined on a number of occasions left us guessing because there is no citation in the judgment. If the precedent relied upon was quoted in the judgment we could have profitably examined the precedent itself. In the absence of it the contention being a pure question of law will have to be examined on its own merits.