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PETITIONER: HASMAT RAI & ANR.

       Vs.

RESPONDENT: RAGHUNATH PRASAD

DATE OF JUDGMENT28/04/1981

BENCH: DESAI, D.A. BENCH: DESAI, D.A. PATHAK, R.S. VENKATARAMIAH, E.S. (J)

CITATION:  1981 AIR 1711            1981 SCR  (3) 605  1981 SCC  (3) 103        1981 SCALE  (1)714  CITATOR INFO :  R          1985 SC 207  (16)  E&D        1987 SC 406  (6)  R          1987 SC 741  (12,13)  D          1988 SC  30  (5)  RF         1991 SC1760  (20,23)  RF         1992 SC 700  (4)

ACT:      Madhya Pradesh Accommodation Control Act, 1961-Scope of section  12(1)   (f)-Bonafide  requirement   under   section 12(1)(f)-Landlord filing  two eviction  suits and  acquiring possession of  a major  portion of the suit premises through an  eviction  order  passed  in  one  of  them-Whether  this acquisition  amounts  to  the  landlord  "has  a  reasonably suitable non-residential  accommodation of  his own  in  his occupation in the city or town concerned’ within the meaning of section  12(1)(f)  of  the  Act-Noticing  of  such  event subsequent to  the passing of the decree for eviction in the other eviction  suit, whether  a must by the Court-Propriety of refusal  of leave  to amend  the written  statement under order VI rule 17 Civil Procedure Code by the High Court.

HEADNOTE:      The respondent-landlord  filed two  eviction suits  for recovery of  possession of  a non-residential building which were in  occupation of  a firm  Goraldas Parmanand  and  the appellant-tenant. The  portion  occupied  by  the  appellant including the  frontage was  7x22. In  the view  of the fact that the  landlord obtained  eviction order against the firm Goraldas Parmanand  on the  ground  that  the  building  was required for  the purpose  of reconstruction and repairs and also for  bona fide  requirement, in the later eviction suit filed against  the appellant,  in para  4 of  the plaint the landlord stated that he was in possession of a major portion of the  non-residential building  which he obtained from the firm M/s.  Goraldas Parmanand.  The appellant  contested the eviction suit  filed against him on the ground, (a) that the premises was  not in  dilapidated  condition  and  did  not, therefore, need  reconstruction and repairs and (b) that the landlord in  view of his own admission in the plaint at para 4 has a reasonable suitable non-residential accommodation of

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his own  and  therefore  cannot  claim  his  eviction  under section  (12)(1)(f)  of  the  Madhya  Pradesh  Accommodation Control Act, 1961.      The trial  court rejected the tenant’s pleas and passed an eviction  order. In  appeal the  first  appellate  court, while confirming  the finding  of the  trial court  that the building was  in a  dilapidated condition  and required  re- construction and repairs, held that even though the landlord obtained a  decree against  the firm  Goraldas Parmanand, he had not  got actual  possession, as the litigation was still pending and,  therefore, the plaintiff’s requirements of the whole building was established.      In  the   second  appeal  before  the  High  Court,  an application  under   Order  VI,   Rule  17,  Code  of  Civil Procedure, was  made praying for an amendment to the written statement alleging  that the  firm  Goraldas  Parmanand  has vacated the entire portion of the premises in his possession and the plaintiff-landlord has obtained actual possession of a major portion of the building and if this aspect was taken into  consideration  the  plaintiff-landlord  would  not  be entitled to  a decree for eviction under section 12(1)(f) of the Act. The High Court rejected 606 the  application   observing  that   the  adjoining  portion occupied by  firm Goraldas Parmanand was vacated by the firm as for  back  as  in  the  year  1972  and,  therefore,  the application for amendment filed 3-1/2 years after the filing of the second appeal must be rejected. Further it was of the view that  the definition  of "tenant" in the Madhya Pradesh Act would  not enable  a tenant,  though in  possession  but against whom  a decree  or order for eviction has been made, to invite  the court  to take notice of events subsequent to the passing  of the  decree for eviction by the trial court. The  High   Court,  accordingly  confirmed  the  decree  for eviction hence,  the appeal  by the  tenant after  obtaining special leave of the Court.      Allowing the  appeal and  remanding the  matter to  the first appellate court with directions, the Court ^      HELD: 1.  Before an  allegation of  fact to  obtain the relief required  is permitted  to  be  proved,  the  law  of pleadings require  that such  facts have  to be  alleged and must be  put in  issue. Any  amount of proof offered without pleadings is  generally of no relevance. In order to be able to seek  eviction of  a tenant under section 12(1)(f) of the Madhya Pradesh Accommodation Control Act, 1961, the landlord has to  allege and  establish (i)  that he bonafide requires the accommodation  let to  the  tenant  for  non-residential purposes for  the purpose  of  continuing  or  starting  his business and  (ii) that  he has no other reasonably suitable non-residential accommodation  of his  own in his occupation in the  city or  the town concerned. The burden to establish both the requirements of section 12(1)(f) is squarely on the landlord. [610 H, 611 A, 612 D and F]      2. The  application  under  Order  VI  Rule  17,  Civil Procedure Code,  in view  of the  averments in  the  written statement is  wholly superfluous.  However, in  view of  the pleadings in  the instant  case, it  must be granted because "the burden  of proof  of establishing that the landlord was not in  possession of a reasonably suitable accommodation in the same  town was on the plaintiff" it was wrongly rejected by the  High Court  on untenable  ground that the defendant- appellant  was   guilty  of   delay  and   laches   ignoring incontrovertible admitted  position which would non-suit the respondent-plaintiff. [613 E-G]

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    3:1. The  definition  of  expression  "tenant"  in  the Madhya Pradesh Accommodation Control Act, 1961 excludes from its operation  a person in possession against whom any order or decree  for eviction  has been made. The decree means the decree of the final court. This is so because once an appeal against decree or order of eviction is preferred, the appeal is a continuation of suit. [615 C, 616 B]      3:2. When  an action  is brought  by the landlord under Rent Restriction  Act for eviction on the ground of personal requirement, his need must not only be shown to exist at the date of  the suit,  but must  exist on the date of appellate decree, or  the date  when a  higher court  deals  with  the matter. During  the progress  and passage of proceeding from court to  court if  subsequent events occur which if noticed would non-suit  the plaintiff.  the court has to examine and evaluate the  same and  mould the  decree  accordingly.  The tenant is  entitled to  show that the need or requirement no more exists  by pointing  out such subsequent events, to the court including  the appellate court. Otherwise the landlord would 607 derive an  unfair advantage,  and it  would be  against  the spirit or  intendment of  Rent  Restriction  Act  which  was enacted to  fetter the unfettered right of re-entry. In such a situation  it would  be 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. But  the tenant  can be precluded from so contending when decree  or order for eviction has become final. [616 C- G]      Pasupuleti  Venkateswarlu  v.  The  Motor  and  General Traders, [1975] 3 S.C.R. 958, followed.      Taramal v.  Laxman Sewak  and Ors., 1971 Madhya Pradesh Law Journal p. 888, overruled.      3:3. In  the instant case; (i) relying on the admission of the  plaintiff himself  that he  has in  his possession a shop admeasuring  18/x68 plus 7/x68 forming part of the same building and  his failure  to state  that the  space with 18 frontage is  neither suitable  not reasonably  suitable  nor sufficient  for   starting  his   business  as  Chemist  and Druggist, the  plaintiff’s suit  for eviction  on the ground mentioned in section 12(1)(f) of the Madhya Pradesh Act must fail;  (ii)  the  finding  of  the  courts  below  that  the respondent requires  possession of the whole of the building including the  one occupied  by the  tenant for starting his business as  Chemist and  Druggist as also for his residence is vitiated beyond repair. The observation of the High Court that the  remaining portion of the premises would be used by the landlord  for his  residence and even though the portion utilised for  the purpose  of running  the business would be smaller compared to the one to be utilised for the residence it would  still not  be  violative  of  sub-section  (7)  of section 12 because such a composite user would not radically change the  purpose for  which the accommodation was let, is contrary to records and pleadings. [618 B-C, D-F, 619 B-C]      4:1.  In  order  to  obtain  possession  under  section 12(1)(h) of  the Madhya  Pradesh Act  the  landlord  has  to establish his  bonafide requirement  of the accommodation in possession of  the tenant  for the  purpose of  building  or rebuilding or  making thereto  any substantial  additions or alterations and  must further show that such building or re- building or  alterations cannot  be carried  out without the accommodation being vacated. If the landlord succeeds in his prayer for  possession on  the ground  mentioned in  section 12(1)(h), it  would be  necessary  for  the  court  to  give

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appropriate directions  under section 18 of the Act. [619 F- G, 621 BC]      4:2. Here,  as the  matter has  not been  examined from this angle  by any  court, even  though  the  litigation  is pending for a long time, the case requires to be remanded to the first  appellate court  to ascertain:  (i)  whether  the landlord is  interested in  re-constructing that  portion of the building which is in possession of the tenant as demised premises; (ii)  whether the  landlord would be in a position to reconstruct  the building  in his  possession without the tenant being  required to  vacate the  demised premises  and (iii) if the first two queries are answered in favour of the landlord, what  should be  the appropriate  directions to be given in  favour of  the tenant as enjoined by section 18 of the Act. [621 C-F] 608      Per Pathak, J. (Concurring)      1. In a proceeding for the ejectment of a tenant on the ground of  personal requirement  under a statute controlling the eviction  of tenants,  unless the statute prescribes the contrary the  requirement must continue to exist on the date when the proceeding is finally disposed of, either in appeal or revision, by the relevant authority. Here, the High Court should have  allowed the  application for  amendment of  the written statement  under Order  VI Rule  17, Civil Procedure Code. [624 E-F]      2. Before  the need  for personal residence can be held proved, several  considerations  need  to  be  proved  under section 12(1)(e)  of the  Act.  The  omission  to  draw  the attention of  the High  Court to  the fact that the need for personal residence  was never  pleaded in the plaint led the High Court  to fall  into error  in taking this element into account. [625 B-C]      Per Contra:      3:1.  In  the  instant  case,  it  is  clear  from  the concurrent  findings  of  the  courts  below  that  (a)  the respondent has  made out his case under section 12 (1)(h) of the Act  that he requires the building including the portion occupied by  the appellants  for the  re-construction of the front portion  and repairs  to the  rear  portion  and  that necessitates that  the appellants vacate their accommodation and (b)  the respondent  needs a portion of the building for starting the business of a medicine shop. [625 E-G]      3:2. Whether  or not  the shop should be located in the front portion  of  the  building  and  what  should  be  the dimensions of  the proposed  Chemist and  Druggist shop will turn on  the evidence adduced by the parties in that behalf, Giving a finding on this point, in the circumstances of this case,  is   pre-eminently  a  task  to  be  entrusted  to  a subordinate court.  The questions  for consideration  by the appellate court  are: (i) what should be the location of the shop and  what should  be the  dimensions in  the matter and (ii) availability of the benefit under section 18 of the Act to the appellants. [625 D-E]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1108 of 1976.      Appeal by  special leave  from the  judgment and  order dated the  17th April  1976 of the Madhya Pradesh High Court in Second Appeal No. 113 of 1969.      S.K.  Mehta,   P.N.  Puri   and  E.M.S.  Anam  for  the Appellants.

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    P.P. Juneja for the Respondent.      The following Judgments were delivered      DESAI, J.  A tenant  under a  decree of eviction is the appellant in this appeal by special leave. 609      Respondent  landlord  filed  a  suit  for  recovery  of possession of  premises being  a small  shop admeasuring 7’X 22’ forming  part of a big non-residential building situated in Sadar  Bazar, Bilaspur  town in  Madhya  Pradesh  on  two grounds, to  wit: (i)  that he (landlord) intended to open a medicine shop  and  he  had  no  other  reasonably  suitable accommodation for  the same  in the  town; and  (ii) that he (landlord) required  the suit  building for  the purpose  of reconstruction and  repairs which  could not  be carried out unless it  was vacated by the defendant. The tenant resisted the suit pointing out that the landlord on his own admission as set  out in  plaint para  4 was  in possession of a major portion of  a non-residential  building of which he acquired possession  from   the  firm  of  Goraldas  Parmanand  which accommodation was  sufficient for  starting the  business of Chemists and  Druggists shop. It was also contended that the building was not in a dilapidated condition and did not need reconstruction and repairs.      The trial  court recorded  a finding  that the building was in  a dilapidated condition and reconstruction of it was essential and the landlord had sufficient funds to undertake reconstruction. On  the question  of personal requirement of plaintiff to start a medicine shop, the trial court recorded a finding  that in  the front  portion of  building landlord would start  his business  as Chemists and Druggists and the rear of  the building  would be  utilized  by  him  for  his residence. It  was  further  held  that  as  the  landlord’s requirement was  a  composite  one  in  that  he  wanted  to reconstruct the  building and  then use  the whole of it for himself, therefore,  the  tenant  was  not  entitled  to  be inducted in  the reconstructed  building which he would have been entitled  to claim  under  section  18  of  the  Madhya Pradesh Accommodation Control Act, 1961 (’Act’ for short).      An appeal  by the tenant to the District Court elicited in para  20 a  finding that though the landlord was studying he might  choose his  career for business after he completed his education  and he  had got  Rs. 8,000 in a fixed deposit account in  a bank  and even  though he  obtained  a  decree against the  firm of  M/s. Goral  Parmanand he  had not  got actual possession  as the  litigation was still pending and, therefore, the plaintiff’s requirement of the whole building was  established.   The  finding   that  the  house  was  in dilapidated  condition   and  required   reconstruction  was affirmed.      When the matter reached the High Court in second appeal by the  tenant an  application under Order VI, rule 17, Code of Civil 610 Procedure, was  made praying for an amendment to the written statement alleging  that the  firm  Goraldas  Parmanand  has vacated the  whole of  the remaining portion of the building excluding the premises in possession of the tenant measuring 7’  X  22’  and  that  the  plaintiff  has  obtained  actual possession of  the same  and if  this aspect  was taken into consideration the  plaintiff landlord  would not be entitled to a  decree for  eviction under s. 12(1)(f) of the Act. The High Court  rejected  the  application  observing  that  the adjoining portion  occupied by  firm Goraldas  Parmanand was vacated by  the firm  as far  back as  in the  year 1972 and therefore the  application for  amendment filed  3 1/2 years

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after the  filing of  the appeal  must be  rejected  on  the ground of delay and laches. Further, despite the judgment of this Court  in Pasupuleti  Venkateswarlu v.  The  Motor  and General Traders, the High Court felt considerable hesitation in taking  note of  this event  subsequent to the passing of the decree  for eviction  by the  trial court because of its earlier decision  in Taramal  v. Laxaman  Sewak and  Ors  in which it was held that the definition of ’tenant’ in the Act would not  enable a tenant, though in possession but against whom a decree or order for eviction has been made, to invite the Court to take notice of events subsequent to the passing of the  decree for eviction by the trial court. The decision of this  Court was  distinguished on  the  ground  that  the definition of  the expression  ’tenant’  in  Andhra  Pradesh Building (Lease  Rent and  Eviction) Control  Act, 1960, was somewhat different  and was  wide  enough  to  include  such persons. The High Court accordingly rejected the application and dismissed  the second  appeal confirming  the decree for eviction.      Section 12(1)(f)  under which eviction of the tenant is sought by the landlord reads as under:-           "that the  accommodation let  for  non-residential      purposes is  required bona fide by the landlord for the      purpose of  continuing or starting his business or that      of any  of his  major sons or unmarried daughters if he      is the  owner thereof  or  for  any  person  for  whose      benefit the accommodation is held and that the landlord      or such  person has  no other  reasonably suitable  non      residential accommodation  of his own in his occupation      in the city or town concerned." In order  to be  able to  seek eviction of a tenant under s. 12(1)(f) the landlord has not only to establish that he bona fide requires the 611 accommodation let to the tenant for non-residential purposes for the  purpose of  continuing or starting his business but he  must  further  show  that  the  landlord  has  no  other reasonably suitable  nonresidential accommodation of his own in his occupation in the city or the town concerned.      The landlord  in this case seeks eviction of the tenant from a  building let  for non-residential  purpose.  He  can obtain possession  either for  continuing  or  starting  his business. He was a student at the relevant time. He appeared to have  completed his education thereafter. It is stated in the plaint unambiguously that he wanted to start business by opening a  medicine shop. In other words, he wanted to start a Chemist  and Druggist  shop. He must, therefore, show that he has  not got in his possession a reasonably suitable non- residential accommodation  of his  own in  his occupation in the town of Bilaspur.      The suit  building, as earlier observed, is in the city of  Bilaspur  and  situated  in  Sadar  Bazar,  obviously  a business locality.  Respondent-landlord  claims  to  be  the owner of the whole building. The suit premises in possession of the tenant in which he is carrying on a small kirana shop admittedly admeasures  7 frontage on the main road and 22 in depth. In  other words  it is 7’X 22’. The whole building of which demised  premises form  a small  part  appears  to  be having a  frontage of  28. 3 passage has to be excluded. The premises in  possession of  the tenant  has a frontage of 7. The length  of the  building or  what is styled as depth was given out  to us  as 90  by learned  counsel for respondent- landlord. 18’ frontage with 90’ depth was thus in possession of firm  Goraldas Parmanand.  Respondent landlord  had  also initiated  proceedings   for  obtaining  possession  of  the

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premises occupied  by firm  Goraldas Parmanand  on the  same ground, namely,  that he  wanted to  start his  business  of Chemists and Druggists in the building.      The question  is whether  the premises occupied by firm Goraldas Parmanand  has been  vacated by  the firm.  If  the answer is  in affirmative,  the respondent landlord has thus obtained vacant  possession of  the whole  of  the  premises occupied by  firm Goraldas  Parmanand. Looking  to  the  map annexed to  the plaint  and the evidence led in the case and the dimensions of the premises stated at the hearing of this appeal the  area vacated  by the  previous tenant  would  be 18’X90’ plus portion at the back of the premises occupied by the present appellant which would be 7’X 68’ and it 612 has come  in possession of the respondent. The last question would be  if landlord  obtained vacant possession subsequent to the decree passed against the present appellant tenant by the Trial  Court, whether  the  subsequent  event  could  be noticed by  the court  for moulding  the decree  against the present appellant tenant.      Section 12  starts with  a non-obstante  clause thereby curtailing the right of the landlord to seek eviction of the tenant which he might have under any other law and the right of eviction  is made  subject to the overriding provision of section 12.  It is  thus an  enabling section.  In order  to avail of  the  benefit  conferred  by  section  12  to  seek eviction  of  the  tenant  the  landlord  must  satisfy  the essential ingredients  of the  section. The landlord in this case seeks eviction of the tenant under section 12(1)(f). He must, therefore,  establish (i)  that he  requires bona fide possession of a building let for non-residential purpose for continuing or starting his business; and (ii) that he has no other reasonably  suitable non-residential  accommodation of his own in his occupation in the city or town concerned. The burden  to   establish  both  the  requirements  of  section 12(1)(f)  is   squarely  on  the  landlord.  And  before  an allegation  of   fact  to  obtain  the  relief  required  is permitted to  be proved,  the law  of pleadings require that such facts  have to  be alleged  and must  be put  in issue. Ordinarily, therefore,  when a landlord seeks eviction under section 12(1)(f)  the court  after  satisfying  itself  that there are  proper pleadings must frame two issues namely (i) whether the  plaintiff landlord  proves that  he  bona  fide requires possession of a building let to the tenant for non- residential purpose for continuing or starting his business, and (ii)  whether he  proves that he has no other reasonably suitable non-residential  accommodation of  his own  in  the city or town concerned. Without elaborating we must notice a well  established  proposition  that  any  amount  of  proof offered without pleadings is generally of no relevance.      Turning to  the pleadings in this case the plaintiff in para 6 of the plaint has stated as under:-           "The plaintiff  intends to  start his own business      in the  said building after the said reconstruction. He      intends to  open a medicine shop therein. The plaintiff      bona  fide  requires  the  suit  house  for  the  above      purpose. He has no other suitable accommodation for the      same in the town." The cryptic  averment is  that the plaintiff has not got any other reasonably  suitable accommodation  in the  same town. However, 613 in para 4 of the plaint it is stated ’that the major portion of the  building is  in  occupation  of  the  firm  Goraldas Parmanand and  the plaintiff  has already  obtained a decree

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for its  eviction therefrom’.  The defendant  in his written statement has  in term  stated  that  the  defendant  is  in possession of a small portion of the building, the remaining portion of  which was  in possession  of firm  M/s. Goraldas Parmanand. In  para 6 of the written statement it is further stated that  on his  own admission,  the plaintiff has got a suitable alternative  accommodation being  the premises  for which a  decree of  eviction is  obtained for doing business and which  is more  than sufficient for his requirement. The learned Trial  Judge framed  Issue No.  2(a) on the question whether the  plaintiff  landlord  had  no  other  reasonably suitable accommodation  of his  own in his occupation in the city. While  recording finding  on this  issue  the  cryptic observation in para 19 of the judgment is that the plaintiff is a  student and he has no other accommodation for starting his own  business. There  is not  the slightest reference to the decree admittedly obtained by the plaintiff against firm M/s. Goraldas  Parmanand which firm was carrying on business in a portion of the building which the plaintiff himself has described as  the major  portion of  the building,  the suit premises being a small portion of the whole building. In the first appeal  this contention  is disposed  of by  observing that the  alternative accommodation  which the defendant has pleaded in  his written  statement is  under litigation  and therefore  it   cannot  be   treated  as  available  to  the plaintiff.’      In the  second appeal  in the  High Court the defendant appellant moved  an application  under Order  VI Rule 17 for amendment of  the written statement for elaborating what was already stated  that not  only the  decree obtained  by  the plaintiff against  the adjoining tenant of the same building namely firm  of M/s. Goraldas Parmanand has become final but the plaintiff  in execution  of the  decree way back in 1972 obtained actual  possession of the whole of area occupied by that  firm  and  that  forms  major  portion  of  the  whole building. This  application, though,  in our  opinion, to be wholly superfluous in view of the pleadings hereinbefore set out and  in view  of the  fact that  the burden  of proof of establishing that  the landlord  was not  in possession of a reasonably suitable  accommodation in  the same  town was on the plaintiff  was rejected  on untenable  ground  that  the defendant appellant  was guilty  of delay  and laches.  This application for  amendent deserves  to be  granted,  and  we grant the  same. What  is its  impact ? Even while rejecting the application  the High  Court in terms observed in para 4 of its judgment as under:- 614           ’Adjoining portion  was vacated  by firm  Goraldas      Parmanand as far back as in the year 1972’. The High  Court thus had before it a fact beyond dispute and beyond controversy  that the  major portion  of the building was vacated  by the  adjoining tenant way back in 1972. This was an  uncontroverted fact.  Therefore remand on this point is an  exercise in  futility because the fact alleged in the application for  amendment is  admitted. After rejecting the application on  wholly untenable  ground the  High Court  in 1976 affirmed  the finding  wholly  contrary  to  record  as available at  that stage  that the plaintiff landlord had no other reasonably  suitable non-residential  accommodation of his own  in his  occupation  in  the  city  even  though  on landlord’s own  admission he  had acquired vacant possession of a  major portion  of the building let for non-residential purpose as  far back  as 1972.  In the  course of hearing we were  repeatedly   told  that   the  finding  of  facts  are sacrosanct. The  finding of  fact ignoring  incontrovertible

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admitted position  which would  non-suit  the  plaintiff  if upheld would be travesty of justice. The burden being on the plaintiff to  show that  he had no other reasonably suitable accommodation for  carrying on  the business which he wanted to start  in the  suit premises, it was for the plaintiff to show that  he had not acquired possession from firm Goraldas Parmanand. Alternatively  the plaintiff  should  have  shown that the  said adjacent  accommodation  was  not  reasonably suitable for  the business  he wanted  to start. He has done neither. On  the contrary plaintiff has admittedly adopted a position in the plaint that he not only wanted suit premises but also  the adjoining  premises of  which he  had obtained possession for starting his business. In such a situation if the High  Court had  kept in  view that  the  plaintiff  had already with  him viz.  possession of  a building  having 18 frontage on  the main  road and 90 depth plus portion at the back of the suit premises in his possession it would have to come to  an affirmative  conclusion that  the plaintiff  had sufficient accommodation  for starting  his  business  as  a Chemists and  Druggists. It  was no where pointed out by the plaintiff that  the shop  of Chemists  and  Druggists  or  a medicine shop  would require  frontage of more than 18’. 18’ frontage  on  a  main  road  in  a  city  like  Bilaspur  is sufficiently attractive  and accommodating. The depth of the shop as  given out  to us  being 90’; therefore landlord has now in  his possession  shop admeasuring  18’ x 90’ plus the area of 7’ x 90’ at the back of the suit premises being part of the same building. Would this not provide more than ample accommodation to  the plaintiff  to start  his business as a Chemists and Druggists ? Not one 615 word has  been said  that the accommodation which is already in possession  of the  plaintiff  is  neither  suitable  nor reasonably  suitable   nor  sufficient   for  starting   his business. In  fact the  very stand  of plaintiff landlord as accepted by  the High  Court that  some portion  at the back would  be   utilised  by   landlord  for   residence   would affirmatively establish  that landlord  has more than enough vacant  accommodation   in  possession   for  starting   his business.      The difficulty  which the  High Court  experienced  was whether a tenant under a decree of eviction could invite the Court to  take into  consideration the  events subsequent to passing of  the decree  which if  noticed would non-suit the landlord.      The  definition  of  expression  ’tenant’  in  the  Act excludes from  its operation  a person in possession against whom any  order or  decree for  eviction has  been made. The High Court  referred to  its earlier  judgment in  Taramal’s case wherein  it was held that the protection to a statutory tenant lapsed with the passing of a decree and such a person had no right to bring on record new circumstances which were not in  existence at  the date of the passing of the decree. This approach  wholly  overlooks  the  scheme  of  the  Rent Restriction Act.  The M.P.  Act enables  a landlord  to seek eviction of  a tenant  and obtain  possession under  various circumstances set out in section 12. If a landlord bona fide requires  possession  of  a  premises  let  for  residential purpose for  his own  use, he can sue and obtain possession. He is  equally entitled to obtain possession of the premises let for  non-residential purposes if he wants to continue or start his  business. If  he commences  the  proceedings  for eviction on  the ground  of personal  requirement he must be able to  allege and  show the  requirement on  the  date  of initiation of  action in  the Court which would be his cause

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of action. But that is not sufficient. This requirement must continue throughout  the progress of the litigation and must exist on  the date  of the  decree and when we say decree we mean the  decree of  the final  court. Any  other view would defeat the  beneficial provisions  of a  welfare legislation like the  Rent Registration  Act. If the landlord is able to show his  requirement when  the action  is commenced and the requirement continued  till the  date of  the decree  of the Trial Court and thereafter during the pendency of the appeal by the  tenant if  the landlord  comes in  possession of the premises sufficient  to satisfy his requirement, on the view taken by  the High  Court, the tenant should be able to show that the subsequent events disentitled the plaintiff, on the only ground  that here  is tenant  against whom  a decree or order for 616 eviction has  been passed  and no  additional  evidence  was admissible  to  take  note  of  subsequent  events.  When  a statutory right of appeal is conferred against the decree or the order  and once  in exercise  of the  right an appeal is preferred the  decree or  order ceases to be final. What the definition of  ’tenant’ excludes  from its  operation is the person against whom the decree or order for eviction is made and the  decree or  order has become final in the sense that it is  not open  to  further  adjudication  by  a  court  or heirarachy of  courts. An  appeal is a continuation of suit. Therefore a  tenant against  whom a  decree for  eviction is passed by  Trial Court  does not lose protection if he files the appeal  because if  appeal is  allowed the  umbrella  of statutory  protection   shields   him.   Therefore   it   is indisputable that  the decree or order for eviction referred to in  the definition  of tenant  must mean  final decree or final order  of eviction.  Once an  appeal against decree or order  of   eviction  is   preferred  the   appeal  being  a continuation of  suit, landlord’s  need  must  be  shown  to continue to  exist at appellate stage. If the tenant is in a position to show that the need or requirement no more exists because of  subsequent events,  it would  be open  to him to point out  such events and the Court including the appellate court has  to examine,  evaluate and  adjudicate  the  same. Otherwise the  landlord would derive an unfair advantage. An illustration  would  clarify  what  we  want  to  convey.  A landlord was  in a  position to show he needed possession of demised premises  on the  date of the suit as well as on the date of  the decree  of the trial court. When the matter was pending in  appeal  at  the  instance  of  the  tenant,  the landlord built a house or bungalow which would fully satisfy his requirement.  If this  subsequent event  is  taken  into consideration, the landlord would have to be non-suited. Can the court  shut its  eyes and  evict the  tenant ?  Such  is neither the  spirit nor  intendment of  Rent Restriction Act which was  enacted to  fetter the  unfettered right  of  re- entry. Therefore  when an  action is brought by the landlord under Rent  Restriction Act  for eviction  on the  ground of personal requirement,  his need  must not  only be  shown to exist at the date of the suit, but must exist on the date of the appellate  decree, or the date when a higher court deals with  the   matter.  During  the  progress  and  passage  of proceeding from  court to  court if  subsequent events occur which if noticed would non suit the plaintiff, the court has to examine  and evaluate  the  same  and  mould  the  decree accordingly. This position is no more in controversy in view of a  decision of  this Court  in  Pasupuleti  Venkateswarlu (supra) where  Justice Krishna  Iyer speaking  for the Court observed as under:-

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         "We affirm  the proposition  that for  making  the      right  or   remedy  claimed   by  the  party  just  and      meaningfully as 617      also legally  and factually  in accord with the current      realities, the  court can, and in many cases must, take      cautions   cognisance   of   events   and   development      subsequent  to   the  institution   of  the  proceeding      provided the  rules  of  fairness  to  both  sides  are      scrupulously observed." In order  to  fully  evaluate  the  law  laid  down  in  the aforementioned extracted  passage it  is worthwhile  to give the background  of facts in which it was made. The appellant landlord in  that case  was the  owner of  a large  building which  was  leased  out  in  separate  portions  to  several tenants.  One  of  such  tenants  was  the  respondent.  The landlord wanted to start a business in automobile spares and claimed  eviction   of  the   respondent  under   the   Rent Restriction Act  being Andhra Pradesh Buildings (Lease, Rent and Eviction)  Control Act,  1960. The petition was resisted and the  Rent Controller  dismissed the petition. The appeal of the landlord failed. But in revision the High Court chose to remand  the case  to  the  appellate  authority  and  the appellate authority  in turn  remitted the case to the Trial Court  for   fresh  disposal   in  accordance  with  certain directions.  The  landlord  preferred  a  revision  petition against the  order of  remand by  the first appellate court. The High  Court dismissed  the action of the landlord taking cognisance of  a subsequent  event namely  that the landlord acquired possession of a reasonable suitable non-residential building in  the same  town. In  appeal to this Court it was seriously contended  that it was improper for the High Court to take  into consideration  the subsequent  events and this contention was  negatived inter  alia on  the ground  in the passage   extracted    above.   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 landlord’s 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.  He can  be precluded  from so contending when the  decree or  order for eviction has become final. In view of  the  decision  in  Pasupuleti’s  case  (supra)  the decision of  the Madhya Pradesh High Court in Taramal’s case must be  taken to  have been  overruled and  it could not be distinguished only  on the  ground that  the  definition  of ’tenant’ in the Madhya Pradesh Act is different from the one in Andhra Pradesh 618 Act. Therefore,  the High Court was in error in declining to take this subsequent event which was admittedly put forth in the plaint itself into consideration.      The landlord  wants to  start his  business as Chemists and Druggists. On his own admission he has in his possession a shop  admeasuring 18’  X 90’ plus 7’ X 68’ forming part of the same  building the remaining small portion of 7’ X 22 is occupied by  the tenant. The landlord has not stated that so much space  with 18’ frontage is not reasonably suitable for starting his  business as Chemist and Druggist. In that view of the  matter the  plaintiff’s suit  for  eviction  on  the

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ground mentioned  in section  12(1)(f) must fail and this is being done by not disturbing any finding of fact but relying upon the admission of the plaintiff himself.      There is  an error  apparent on  the face of the record inasmuch as  when the  High Court  was faced  with a dilemma whether the  landlord required  the whole  of  the  building including  demised   premises  now   in  possession  of  the appellant tenant  for starting  his business of Chemists and Druggists  and   when  the  High  Court  had  before  it  an indisputable fact  that the respondent landlord has obtained vacant possession  of a  major portion of the building which was in  possession of  firm M/s.  Goraldas Parmanand, was it necessary for him to have any additional accommodation ? The High Court  got  over  this  dilemma  by  observing  and  by affirming the  finding of  the subordinate  courts that  the remaining portion  of the  premises would  be  used  by  the landlord for  his residence  and  even  though  the  portion utilised for  the purpose  of running  the business would be smaller compared to the one to be utilized for the residence it would  still not  be violative of sub-section (7) of sec. 12 because  such a composite user would not radically change the purpose  for  which  the  accommodation  was  let.  This finding  is  contrary  to  record  and  pleadings.  Minutely scanning the  plaint presented  by the landlord there is not the slightest suggestion that he needs any accommodation for his residence.  He has not even stated whether at present he is residing in some place of his own though he claimed to be residing in  the same  town. He  does not  say whether he is under any  obligation to  surrender that  premises.  Section 12(1)(e) specifically  provides  for  a  landlord  obtaining possession of  a building let for residential purposes if he bona fide  requires the same for his own use and occupation. But there  is an  additional condition he must fulfil namely he must  further  show  that  he  has  no  other  reasonably suitable residential accommodation of his own in his 619 occupation in  the city  or town concerned. Utter silence of the  landlord   on  this   point  would   be  a   compelling circumstance for  the court  not to  go in  search for  some imaginary requirement  of the  landlord of accommodation for his residence. In the context of these facts the Trial Court and the  first Appellate  Court committed  a manifest  error apparent on  the record by upholding the plaintiff’s case by awarding possession  also on  the ground neither pleaded nor suggested. The  landlord must  have been quite aware that he cannot  obtain  possession  of  any  accommodation  for  his residence. There  fore, the  finding of  the High  Court and courts  subordinate   to  it  that  the  respondent-landlord requires possession  of the  whole of the building including the one  occupied by the tenant for starting his business as Chemists and Druggists as also for his residence is vitiated beyond repair.  Once impermissible  approach to the facts of the case  on hand  is avoided  although facts  found by  the Courts are  accepted  as  sacrosanct  yet  in  view  of  the incontrovertible position  that emerges  from  the  evidence itself that  the landlord  has acquired major portion of the building in  which he can start his business as Chemists and Druggists he  is not  entitled to  an inch of an extra space under section 12(1)(f) of the Act.      Respondent  landlord  also  sought  possession  on  the ground set out in section 12(1)(h) which reads as under:-           "that the  accommodation is  required bona fide by      the landlord  for the purpose of building or rebuilding      or  making   thereto  any   substantial  additions   or      alternations and  that such  building or re-building or

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    alterations  cannot   be  carried   out   without   the      accommodation being vacated." In order  to obtain  possession under  section 12(1)(h)  the landlord again has to establish his bona fide requirement of the accommodation  in  possession  of  the  tenant  for  the purpose of  building or  rebuilding or  making  thereto  any substantial additions  or alterations  and must further show that such  building or  re-building or alterations cannot be carried out  without the  accommodation being  vacated.  The case of  the  landlord  on  this  point  is  that  he  wants possession of  the whole  of the building including the suit premises and he has Rs. 8,000 in a fixed deposit account and that as the building is in a dilapidated condition, he would reconstruct the  same  and  use  it  for  himself  both  for residence and starting his business.      If landlord acquires possession under section 12(1)(h), section 620 18 imposes corresponding obligation which reads as under:-           "18.  Recovery   of  possession  for  repairs  and      rebuilding and re-entry.-(1) In making any order on the      grounds specified  in clause  (g) or clause (h) of sub-      section (1)  of Sec. 12, the Court shall ascertain from      the tenant whether he elects to be placed in occupation      of the  accommodation or  part thereof from which he is      to be  evicted and,  if the  tenant  so  elects,  shall      record the fact of the before election in the order and      specify therein  the date  on or which he shall deliver      possession so as to enable the landlord to commence the      work of repairs or building or re-building, as the case      may be." The courts  declined to grant any relief to the tenant under section 18  on the ground that as the landlord’s requirement is a  composite one,  the tenant  is not  entitled to be re- inducted in  the building  that may  be reconstructed by the landlord after obtaining possession of the same. Now once it is held  that the landlord is not entitled to possession for his residence  and he  has more than enough accommodation in his possession  for carrying  on his business, the composite requirement disappears.  Landlord’s  case  will,  therefore, have to  be exclusively  examined in  the context of section 12(1)(h).      Two contentions  were urged  on behalf of the appellant to negative  the case  of the  landlord in  this behalf; one that the  building is  not in  a dilapidated  condition  and secondly it  can be  repaired without vacating the premises. As all  the courts have concurrently found that the building is in  a dilapidated  condition, this finding is entitled to respect and  it is  not proper  for us to interfere with the same. The  question would  however be  whether the  landlord wants to  reconstruct the  demised portion  of the  premises even though  he is not entitled to acquire possession of the same for his use and that he would be under an obligation to re-induct the  tenant after  its construction.  The  further question  is   whether  the   landlord  is   interested   in reconstructing the  whole  building.  It  was  alternatively contended that  no attempt  is made  to find out whether the landlord would  be in a position to reconstruct that part of the building which has come in his possession once he is not in a  position to acquire possession of the demised premises for  his   own  use.   This  situation  calls  for  a  fresh examination of  the  case  of  the  landlord  under  section 12(1)(h). If  landlord is  to be  awarded  possession  under section 12(1)(h)  on the  footing that,  that  is  the  only ground on  which he  can seek possession, it will have to be

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found out after giving oppor- 621 tunity to  the landlord to prove whether he is interested in re-building that  portion of  the building which is occupied by the appellant and further the court should give necessary direction under  section 18.  In that  event the  court will have also  to ascertain  whether the portion which is now in possession of the landlord and which he may be interested in reconstructing  can  be  reconstructed  without  the  tenant vacating the  demised premises.  As the  whole foundation of the landlord’s  case of composite requirement disappears the matter has  to be  examined afresh  on the  footing that the landlord has  come to the court for possession under section 12(1)(h)  only   and  if  he  succeeds  in  his  prayer  for possession on  the ground  mentioned in  section 12(1)(h) it would  be  necessary  for  the  court  to  give  appropriate direction under section 18 of the Act. As the matter has not been examined  from this  angle by  any Court  it has become inevitable, even though the litigation is pending for a long time, to  remit the case for examination of this aspect. The question is  whether the  remand  should  be  to  the  first appellate  court  or  to  the  trial  court.  As  the  first appellate court is the fact finding court, in our opinion it would be appropriate for us to remit the case, after setting aside the decree of the first appellate court as well as the High Court, to the first appellate court to ascertain :-      (i)  Whether   the    landlord   is    interested    in           reconstructing that  portion of the building which           is  in   possession  of   the  tenant  as  demised           premises;      (ii) Whether the  landlord would  be in  a position  to           reconstruct the building in his possession without           the tenant  being required  to vacate  the demised           premises; and      (iii)if the first two queries are answered in favour of           the  landlord,  what  should  be  the  appropriate           directions to  be given in favour of the tenant as           enjoined by S. 18 ?      Accordingly, this  appeal is  allowed and the decree of eviction made  by the  trial court  and confirmed by the 1st appellate court and also by the High Court is set aside. The prayer of the landlord for possession under section 12(1)(f) is negatived  as he is not entitled to recover possession on the ground  mentioned in  section 12(1)(f).  The  matter  is remanded to the 1st Appellate Court for the limited purposes set  out   in  the   just  preceding   paragraph.   In   the circumstances of  the case  there will  be no  order  as  to costs. 622      PATHAK J.  This is  tenant’s appeal  by  special  leave against the  judgment of  the High  Court of  Madhya Pradesh arising out of a suit for ejectment.      The suit was filed by the respondent, Raghunath Prasad. He claimed  to be  the owner  of a  building in Sadar Bazar, Bilaspur. One portion of the building was occupied by a firm Goraldas Permanand.  According to  the  plaint,  the  entire building was  in a  dilapidated condition  and the plaintiff intended to  reconstruct the  front portion  of the building and to effect major repairs in the rear portion. In order to do so it was said to be necessary that the defendants should vacate the  accommodation. In  regard to  the other portion, the plaintiff  stated that  he had  obtained  a  decree  for ejectment against  Goraldas Parmanand.  The  plaintiff  also alleged that he intended to start the business of a medicine shop and  for that  purpose he  required  the  accommodation

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occupied by  the defendants  as it  faced the  main road  in Sadar Bazar, and that he had no other suitable accommodation in the town for such business.      The suit  was resisted  by the defendants, and a number of pleas  were taken.  In particular  it was denied that the accommodation occupied  by them  was dilapidated and that it was bona fide required by the plaintiff. It was claimed that in  view  of  the  decree  for  ejectment  against  Goraldas Parmanand   the    plaintiff   had    suitable   alternative accommodation for his proposed business.      The  trial   court  found  that  the  entire  building, including the  accommodation  occupied  by  the  defendants, needed reconstruction  and repairs, and that for the purpose of his  projected business  the plaintiff had bona fide need of the accommodation held by the defendants. It was observed that the  accommodation occupied  by Goraldas  Parmanand was still under litigation as an appeal was pending in the case. Holding  that  the  grounds  under  section  12(1)  (f)  and 12(1)(h) of  the Madhya  Pradesh Accommodation  Control  Act were made out, the suit was decreed for ejectment.      The defendants  preferred  an  appeal,  and  the  first appellate court  while dismissing  the appeal maintained the findings  of  the  trial  court  and  upheld  the  order  of ejectment.      A second  appeal by the defendants was dismissed by the High Court  on 17th  April, 1976. During the pendency of the appeal the  defendants moved  an application under Order VI, Rule 17  of the  Code of  Civil Procedure for leave to amend their written statement 623 by adding  the plea  that the  plaintiff had  secured vacant possession of  the adjoining  portion of  the building  from Goraldas Parmanand  in the  year 1972,  and  that  the  case should be  remanded for  deciding whether  the accommodation acquired was  reasonably suitable  for starting  a  medicine shop, the  purpose for  which the plaintiff said he required the accommodation  held by  the defendants.  The High  Court rejected the  application observing  that it  had been moved three and a half years after the event had taken place, that it was  not made  bona fide  but was intended merely to gain time and  would result  in grave injustice to the plaintiff. The High  Court also observed that even if the amendment was allowed it  would not  affect  the  decision  of  the  case, because as  the plaintiff’s need extended to entire building his  securing  vacant  possession  of  one  part  would  not conclude the  matter. It  was pointed out that the plaintiff intended to  reconstruct the  entire portion of the building including the  accommodation occupied  by the defendants, as well as  effect major  repairs to  the rear  portion of  the building. In  place of  the shop  of the  defendants with  a frontage of  7 and a depth of 22 and the adjoining shop with a frontage  of 10  and a depth of 90, the plaintiff intended to demolish  the front  portion of  both the  shops  and  to reconstruct the  building with  a new  shop  having  a  wide frontage of 22’ and a depth of 7’, and to reside in the rear portion of the building. The High Court added that residence in the rear portion of the accommodation would not alter the nature of  the  accommodation  as  the  residence  would  be incidental to  the main  purpose of carrying on the medicine business in the front portion of the building.      The defendants  having obtained special leave from this Court this appeal is now before us.      As analysis  of the  plaint shows that the ejectment of the appellants  was sought  on two  grounds. The  respondent intended to reconstruct the front portion of the dilapidated

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building and to repair the rear portion and according to him this required  the appellants  to vacate  the  accommodation occupied by them. That clearly is the ground envisaged by s. 12(1)(h), Madhya  Pradesh Accommodation  Control  Act.  That ground stood  on its  own. The  respondent also  intended to open a  medicine shop  in the front portion of the building, and he  pleaded that  he had  no other accommodation for the purpose. That  brings into  play s. 12(1)(f) of the Act. The plea  shows   that  as  the  dilapidated  building  required reconstruction and repairs, the respondent indended to avail of the  opportunity to  so effect the structural alterations as to accommodate a medicine 624 shop which  he  planned  to  start  as  a  business  in  the premises. This latter ground arose as a sequel to the first. If the  first ground was made out, the appellants would have to vacate the portion held by them, and if that had been the only ground  the court would automatically be called upon to consider s.  18 of the Act, which entitles the tenant at his option to  be reinstated  in a  portion of the reconstructed building. There  was the  further ground that the respondent proposed to  start his  own business in the front portion of the building,  and the  finding of  the High  Court that the respondent wanted  the rear  portion of the building for his personal residence.      The  subordinate   courts  were   influenced   by   the consideration that  although the  respondent had  obtained a decree for  ejectment against  Goraldas Parmanand,  the case continued to  be the  subject of litigation and therefore it could not  be said  that the respondent was in possession of alternative accommodation.  However, while the second appeal was pending  in the  High Court  the appellants  applied for amendment of  their written  statement to  include the  plea that the  respondent had  meanwhile obtained possession from Goraldas Parmanand.  The High  Court declined  to permit the amendment. In  doing so,  it seems to me that the High Court erred. It  was an  essential part of the appellants’ defence from the  outset  that  the  portion  let  out  to  Goraldas Permanand constituted  suitable  alternative  accommodation, and therefore  they should  not be ejected. It is immaterial that the  amendment was  sought more  than three years after possession of  the portion had passed to the respondent. The High Court  was bound  to take  the fact  into consideration because, as  is well  settled now,  in a  proceeding for the ejectment of  a tenant on the ground of personal requirement under a  statute controlling the eviction of tenants, unless the statute  prescribes to the contrary the requirement must continue to exist on the date when the proceeding is finally disposed of  either in  appeal or  revision, by the relevant authority. That  position, to  my mind, is indisputable. The High Court  should have  allowed  the  amendment.  The  High Court, alternatively  observed that the respondent wanted to accommodate his  shop in  the front  portion of the building and therefore,  of necessity,  he would  require the portion occupied by  the appellants. That conclusion is based on the findings rendered  by the  courts below,  which findings the High Court respected as findings of fact. But the High Court failed to  note that  both the courts below had proceeded on the  assumption  that  the  adjoining  portion  occupied  by Goraldas Parmanand  was not immediately available on account of litigation.  It is  for that  reason that  permitting the amendment sought by the 625 appellants became  relevant and,  indeed, imperative. If the respondent has obtained possession of that portion, and that

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does not  seem to be disputed, it becomes a serious question for decision  whether the respondent needs the front portion of the  building for his medicine shop and, if so, according to dimensions  proposed by him. In the consideration of that question the  element of  the respondent’s need for the rear portion of  the building  for his personal residence must be ignored. That  need was  never pleaded in the plaint and, as will  be   seen  from   s.  12(1)(e)  of  the  Act,  several considerations need  to be  satisfied before the need can be held proved.  This aspect  of the  matter was apparently not brought to  the notice  of the  High Court  and therefore it fell into the error of taking this element into account.      My brother  Desai has  in his  judgment held  that  the respondent can  accommodate his medicine shop in the portion vacated by  Goraldas Parmanand  and  he  has  indicated  the dimensions of  the shop which appear reasonable to him. With great respect  I am  unable to concur with what he has said. Whether or  not the  shop should  be located  in  the  front portion of  the building  and what  should be its dimensions will turn  on the  evidence adduced  by the  parties in that behalf. The  original record  of the  suit is not before us, and without  knowledge of  the state of the evidence I would refrain from  a finding on the point. Indeed, it seems to me in the circumstances of this case to be pre-eminently a task to be entrusted to a subordinate court.      The position which then emerges is this. The respondent has made  out his  case under s. 12(1)(h) of the Act that he requires the building, including the portion occupied by the appellants, for  reconstruction of  the  front  portion  and repairs to  the rear portion, and that necessitates that the appellants  vacate   their  accommodation.  This  matter  is concluded by the concurrent findings of fact rendered by the trial court  and the  first  appellate  court.  It  is  also concluded by concurrent findings of fact that the respondent needs a portion of the building for starting the business of a medicine shop. What should be the location of the shop and what its  dimensions is a matter which remains for decision. And  there  is  the  further  question  of  considering  the availability of  s. 18  of the  Act to  the appellants. Both these questions,  I think,  should  be  left  to  the  first appellate court.      Accordingly, I allow the appeal, set aside the judgment and decree  of the  High Court  and of  the first  appellate court and remand 626 the case  to the  latter court for permitting the appellants to amend their written statement and allowing the parties to lead such  evidence as  is consequentially  called for,  and thereafter to  decide the  case afresh  in the  light of the observations made  above. I  would leave the parties to bear their costs. S.R.                                         Appeal allowed. 627