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CASE NO.: Appeal (civil) 1071  of  2001 Appeal (civil)  1072     of  2001

PETITIONER: GAYA PRASAD

       Vs.

RESPONDENT: SHRI PRADEEP SRIVASTAVA

DATE OF JUDGMENT:       07/02/2001

BENCH: K.T. Thomas & Doraiswamy Raju.

JUDGMENT:

THOMAS, J.

Leave granted.

   This  case presents a sample scenario of the  tormenting plight  of an average litigant who approaches the court with all expectations of getting relief for his urgent need.  But the snail paced litigation creeping through all the tiers of the  judicial hierarchical forums would have frustrated  all his  expectations,  though others could admire the  tenacity with  which he persisted with the cause.  Twenty three years ago,  the litigant in this case wanted accommodation for his son,  who then became a medical graduate, to start a  clinic so  that from the stage of a fledgling in the profession  of medicine  he  could fly higher up.  His father who owns  the building  moved for eviction of the tenant from the building for  the  said purpose.  Although he won the battle  at  all tiers  the urgently needed eviction is till now eluding  him as a mirage.

   Appellant  is  the tenant of a shop building situate  at Khalsa  Gali, Agra.  In 1978, the respondent-landlord  filed an  application  under Section 21(1)(a) of the  U.P.   Urban Buildings  (Regulation  of Letting, Rent and Eviction)  Act, 1972  (for  short the U.P.  Act) on a twin need.   One  is that  his  son who passed his medical examination wanted  to carry  on medical practice and this building was needed  for housing  his clinic.  The other is, the landlord himself had just retired from Railway service and he too did not want to waste  his  time, talent and energy and hence he  wanted  to start  a  radio  repairing work which he  thought  could  be performed  by  using a portion of the building.   The  first forum,   called   the  Prescribed   Authority,   where   the application was filed, found the claim bona fide and ordered eviction  on  25.3.1982.  It was further found by  the  said authority  that the tenant has alternative accommodation  in the same city for doing his business.

   Appellant  filed an appeal but it took only 3 years  for the  appellate  court to dismiss the appeal  on  10.10.1985.

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Though  three years of pendency of an appeal is too much for a litigant it is not considered unduly long by the standards now  developed  regarding the pendency position of cases  in the courts in India.

   The   lengthiest  leap  which   appellant  secured   was thereafter  when  he approached the High Court.  He filed  a writ  petition challenging the order of eviction before  the High  Court  of Allahabad in 1985 and the High  Court  after entertaining  the writ petition granted stay of operation of the   eviction   order.   With   the  said  initial   dosage administered  by  the  High Court at the  entry  stage,  the hibernated  writ  petition seemed to have been consigned  to records  where it remained in torpidity for a record  period of  15 years.  The dust stricken writ petition was taken  up and  disposed of only thereafter and the High Court found no ground  to  interfere with the order challenged  before  it. Appellant  who gained such a record time did not hesitate to make  a plea to the High Court to grant him six months time more  to  vacate and that too was acceded to on a  condition that  appellant  should give an undertaking before  original authority  that  he  would vacate the  premises  within  six months.

   The  appellant who lost at all levels and yet  succeeded during  all these years by keeping the order of eviction  at bay, lately discovered that the landlords son, for whom the eviction  was sought, joined the Provincial Medical  Service after  12  years  of the institution of the  lis.   On  that premise  appellant ventured to move the same High Court once again,  and  this time for a review of the order.   However, the  review petition was dismissed by the High Court as  per its order which is also impugned now.

   In  the  appeal petition filed in this  Court  appellant stated  that  the  son  of   the  landlord  who  joined  the Provincial Medical Service is posted at a place situated 200 kilometers  from Agra, whereat the building is situate,  and that he is now getting a pay of Rs.15,000/- per month.

   The  point  sought  to  be  urged  is  that,  subsequent developments  may  also  be taken into account  in  eviction proceedings,  particularly when the eviction is sought by  a landlord  on the ground that he bona fide needs the building for his own use or for the use of any member of his family.

   Section  21(1)  of the U.P.  Act deals with  proceedings for  release of building under occupation of tenant.  Clause (a)  of  the  sub-section alone is germane  in  the  present proceedings.   The  said  clause  is,  therefore,  extracted below:

   The  prescribed authority may, on an application of  the landlord in that behalf, order the eviction of a tenant from the  building under tenancy or any specified part thereof if it  is  satisfied that any of the following  grounds  exists namely-

   (a)  required  either  in  its existing  form  or  after demolition   and  new  construction  by  the  landlord   for occupation  by  himself or any member of his family, or  any person  for  whose  benefit it is held by  him,  either  for residential  purposes or that the building is bona fide  for purposes  of any profession, trade or calling, or where  the landlord  is  the trustee of a public charitable trust,  for

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the objects of the trust;

   We  have no doubt that the crucial date for deciding  as to  the bona fides of the requirement of the landlord is the date  of his application for eviction.  The antecedent  days may  perhaps have utility for him to reach the said  crucial date  of  consideration.   If every  subsequent  development during  the post petition period is to be taken into account for judging the bona fides of the requirement pleaded by the landlord  there  would  perhaps  be no end so  long  as  the unfortunate  situation in our litigative slow process system subsists.   During  23  years after the landlord  moved  for eviction  on  the ground that his son needed  the  building, neither  the landlord nor his son is expected to remain idle without  doing any work, lest, joining any new assignment or starting  any  new work would be at the peril of  forfeiting his  requirement  to  occupy the building.  It  is  a  stark reality  that  the longer is the life of the litigation  the more would be the number of developments sprouting up during the  long  interregnum.  If a young entrepreneur decides  to launch  a new enterprise and on that ground he or his father seeks  eviction of a tenant from the building, the  proposed enterprise   would   not  get   faded  out   by   subsequent developments during the traditional lengthy longevity of the litigation.   His need may get dusted, patina might stick on its  surface, nonetheless the need would remain intact.  All that is needed is to erase the patina and see the gloss.  It is  pernicious,  and  we may say, unjust to  shut  the  door before  an  applicant  just on the eve of his  reaching  the finale, after passing through all the previous levels of the litigation,  merely on the ground that certain  developments occurred pendente lite, because the opposite party succeeded in prolonging the matter for such unduly long period.

   We  cannot forget that while considering the bona  fides of  the need of the landlord the crucial date is the date of petition.   In Remesh Kumar vs.  Kesho Ram [1992 Suppl.  (2) SCC   623]   a  two-Judge  Bench   of   this   Court   (M.N. Venkatachalia,  J., as he then was, and N.M.  Kasliwal,  J.) pointed  out  that  the  normal  rule  is  that  rights  and obligations of the parties are to be determined as they were when  the  lis commenced and the only exception is that  the court   is   not  precluded   from  moulding   the   reliefs appropriately in consideration of subsequent events provided such  events had an impact on those rights and  obligations. What the learned Chief Justice observed therein is this:

   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.

   This  Court reiterated the same principle in  Kamleshwar Prasad  vs.  Pradumanju Agarwal [1997 (4) SCC 413] that  the crucial  date  normally is the date of filing the  petition. In  that  case,  a two-Judge Bench (K.  Ramaswamy  and  G.B. Pattanaik,  JJ)  has held that even the subsequent event  of death  of the landlord who wanted to start a business in the tenanted  premises  is not sufficient to dislodge  the  bona

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fide  need  established  by  him   earlier.   This  is  what Pattanaik J.  has observed for the Bench:

   That  apart,  the  fact that the  landlord  needed  the premises  in question for starting a business which fact has been found by the appellate authority, in the eye of law, it must be that on the day of application for eviction which is the crucial date, the tenant incurred the liability of being evicted from the premises.  Even if the landlord died during the pendency of the writ petition in the High court the bona fide  need cannot be said to have lapsed as the business  in question can be carried on by his widow or any other son.

   In  our opinion, the subsequent events to overshadow the genuineness of the need must be of such nature and of such a dimension  that the need propounded by the petitioning party should  have  been  completely eclipsed by  such  subsequent events.   A  three-Judge Bench of this Court  in  Pasupuleti Venkateswarlu  vs.  Motor and General Traders [1975 (1)  SCC 770]  which pointed to the need for re-moulding the  reliefs on  the strength of subsequent events affecting the cause of action  in the field of rent control litigation,  forewarned that  cognizance  of such subsequent events should be  taken very  cautiously.  This is what learned Judges of the  Bench said then:

   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  proceedings   provided  the  rules  of fairness to both sides are scrupulously obeyed.

   The next three-Judge Bench of this Court, which approved and  followed  the  above  decision,   in  Hasmat  Rai   vs. Raghunath  Prasad  [1981  (3)  SCC 103] has  taken  care  to emphasise  that  the  subsequent events should  have  wholly satisfied  the  requirement of the party who petitioned  for eviction  on  the  ground  of  personal  requirement.    The relevant passage is extracted below:

   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 supplied)

   The  judicial  tardiness,  for which  unfortunately  our system  has  acquired  notoriety, causes the  lis  to  creep through  the line for long long years from the start to  the ultimate termini, is a malady afflicting the system.  During this  long interval many many events are bound to take place which might happen in relation to the parties as well as the subject  matter of the lis.  If the cause of action is to be submerged in such subsequent events on account of the malady of  the  system it shatters the confidence of the  litigant,

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despite the impairment already caused.

   Of  course  a  two-Judge Bench (K.  Ramaswamy  and  D.P. Wadhwa,  JJ) pointed out in another case Ansuyaben  Kantilal Bhatt  vs.  Rashiklal Manilal Shah [1997 5 SCC 457] that the pendency  of  a lis for a record period of thirty one  years has  transformed a middle aged landlord to advanced stage of gerenry  and at that stage he could not start a new business venture.   After  lamenting over the system which  caused  a whopping  delay  of  thirty-one  years the  Bench  made  two directions.   The first was that the son of the landlord who by  that  time  had  four and a half years more  to  go  for reaching  the superannuation age could consider starting the business  in  the tenanted premises after  retirement.   The second  was that in the meanwhile the rent for the  building would  stand enhanced from Rs.101/- to Rs.3500/- per  month. Considering  all  the  aforesaid decisions, we  are  of  the definite  view  that  the   subsequent  events  pleaded  and highlighted  by  the  appellant   are  too  insufficient  to overshadow the bona fide need concurrently found by the fact finding courts.

   We  wish  to  add, as an epilogue, that  this  case  can provide a catalytic agent for the High Courts to evolve some concrete  schemes  for  winching to the  fore  similar  long pending  matters,  lying in torpidity at the bottom  of  the crammed  list  of  pending cases in the  High  Courts  after passing  the  initial orders, keeping the operative part  of decrees in abeyance.  It is worth considering whether a cell can be set up in each of such High Courts where the piles of backlog are a stirring problem, to pick out such cases to be brought to the notice of the Chief justice of the High Court concerned  so  that he could take appropriate steps  in  the matter.

   The  above is not an advice, but only a suggestion.   If any  alternative suggestion would appear better the same can be resorted to.  The time is running out for doing something to  solve the problem which has already grown into monstrous form.   If  a citizen is told that once you resort to  legal procedure  for  realisation of your urgent need you have  to wait  and wait for 23 to 30 years, what else is it if not to inevitably  encourage and force him to resort to extra legal measures  for  realising the required reliefs.  A  Republic, governed  by  rule  of  law, cannot  afford  to  compel  its citizens  to resort to such extra legal means which are very often  contra legal means with counter-productive results on the maintenance of law and order in the country.

   We dismiss these appeals.