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CASE NO.: Appeal (civil)  41 of 2003

PETITIONER: KEDAR NATH AGRAWAL (DEAD) & ANR

RESPONDENT: DHANRAJI DEVI (DEAD) BY LRs. & ANR

DATE OF JUDGMENT: 13/10/2004

BENCH: ARIJIT PASAYAT & C.K. THAKKER  

JUDGMENT: J U D G M E N T

Thakker, J.

                        The present appeal is filed by the tenant of disputed shop ka  situate in Kasba Rasra, Paragana Lakhaneshuwar, District Ballia,  against the order of eviction passed by the Prescribed Authority under  the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and  Eviction) Act, 1972 (hereinafter referred to as ’the Act’), in Case  No.29 of 1983, confirmed by the District Judge, Ballia in Rent  Control Appeal No.4 of 1984 and also confirmed by High Court of  Judicature at Allahabad in Civil Misc. Writ Petition No.19160 of  1985.         To appreciate the controversy raised in the appeal, few relevant  facts may be stated.

An application under Section 21 of the Act was filed by  Dhanraji Devi and Jagdeo Shah, stating inter alia that applicant No.2  was the owner of the suit property and applicant No.1 was her  husband.  Applicant No.2 purchased the property but due to his old  age got the sale deed executed in the name of applicant No.1.  It was  also stated that applicant No.2 constructed a shop and carried on cloth  business in the said shop for some time.  He had also cloth business at  Calcutta and since it was not properly managed, he decided to go to  Calcutta.  He let the suit shop to the opponents \026 appellants herein for  a period of one year.  It was further stated in the application that due  to riots in Bengal the applicants had to put an end to the business at  Calcutta and they had to return at Ballia.  The source of livelihood  then remained in conducting business in the suit-shop.  They had  obtained licence to carry on hosiery business.  They, therefore, bona  fide required the suit property for doing the said business and to earn  livelihood.  It was also alleged that the opponents were not doing any  business in the suit-shop and they had locked it only to harass the  applicants.  It was, therefore, prayed that an order of eviction may be  passed against the opponents.

       The opponents \026 appellants herein filed a written statement  denying the facts stated and averments made in the application.  It was  denied that the applicants required the suit-shop for their bona fide use  for business.  It was also stated that the opponents were paying rent  regularly and doing their business since many years.  It was asserted  that the applicants had other properties also and hence their  requirement could not be said to be bona fide.  Moreover, the  applicants had cloth business at Calcutta and they were not in need of  the shop.  It was, therefore, prayed that the application was liable to be  dismissed.

       On the basis of the pleadings of the parties and considering the

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evidence adduced by them, the Prescribed Authority allowed the  application and held that the applicants were entitled to possession of  the suit-shop as their need was bona fide.  It further held that the  applicants would suffer more hardship if the shop would not be  released in their favour.  Accordingly, an order of eviction was passed  in favour of the applicants and against the opponents.         Being aggrieved by the order passed by the Prescribed  Authority, the appellants herein preferred an appeal before the District  Judge, Ballia who also dismissed the appeal and confirmed the order  of eviction passed by the Prescribed Authority.

       Against the order passed by the District Judge, the appellants  approached the High Court of Allahabad.  As stated above, even the  High Court dismissed the Writ Petition.  Before the High Court  certain subsequent events which had emerged during the pendency of  the writ petition, namely, death of respondents No.3 and 4 (Original  applicants) were brought to the notice of the court.  The court,  however, held that they could not be taken into consideration.   Resultantly, the orders passed by the courts-below were confirmed.

       Notice was issued by this Court on October 29, 1999 in view of  the provisions of sub-section (7) of Section 21 of the Act as also in the  light of the decision of three Judge Bench of this Court in Hasmat Rai  & another vs Raghunath Prasad, AIR 1981 SC 1711: (1981) 3 SCR  605.  In the meantime interim stay of decree for possession was also  granted.  On January 3, 2000, leave was granted, interim stay was  ordered to be continued and hearing of appeal was expedited.  An  appeal was placed for final hearing on September 9, 2004 and since  none was present, it was dismissed for default.  It was then restored on  February 17, 2003.  On September 1, 2004, it was brought to the  notice of the court that the possession of the disputed premises was  taken over on October 22, 2002 after the appeal was dismissed for  default and before an order of restoration was passed.  The matter  was, therefore, adjourned to obtain instructions.  On September 29,  2002, when the matter was called out for hearing, the learned counsel  for the respondents stated that the possession was with the  respondents, while the said statement was disputed by the learned  counsel for the appellants.

       We have heard the leaned counsel for both the parties.

       The learned counsel for the appellant submitted that the  Prescribed Authority under the Act has committed an error of law and  of jurisdiction in ordering eviction against the appellants.  According  to the learned counsel, it was not proved that the applicants bona fide  required the property for doing business as asserted by them.  It was  also submitted that irreparable hardship would be caused to the  appellants-tenants if order of eviction would be passed against them  and on that ground also, no order could have been passed by the  authority.  In any case, when both the applicant (husband and wife)  died during the pendency of proceedings before the High Court, the  High Court was incumbent to consider the subsequent event and ought  to have dismissed the application filed by them.  By not doing so, the  High Court has committed an illegality which deserves interference  by this Court.  It was further contended that the High Court was under  duty to consider the provisions of sub-section (7) of Section 21 of the  Act and to decide whether the legal representatives of the applicants  were entitled to contest the writ petition instituted by the petitioners- appellants.  Regarding taking over possession by the respondents  during the pendency of the appeal before this Court, it was submitted  by the learned counsel that it is not correct and still the appellants  herein are in possession of the suit-shop.  It was, therefore, prayed that  appeal may be allowed and the order of eviction passed by the  Prescribed Authority and confirmed by the District Judge as well as  by the High Court may be set aside.

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       Learned counsel for the respondents, on the other hand,  supported the orders passed by the courts below.  It was submitted  that after considering the pleadings of the parties and evidence on  record, the Prescribed Authority made an order in favour of the  applicants which was confirmed by the District Judge and also by the  High Court.  The order was passed on the basis of the requirement  when the application was instituted.  It is settled law, submitted the  counsel, that the relevant date for deciding the lis between the parties  is the date of institution of suit/application and the High Court was  wholly justified in not entertaining an argument of the appellants for  taking into account subsequent events.  The order, therefore, need not  be interfered with.  It was also submitted that the appeal has become  infructuous inasmuch as the possession of the suit-shop has already  been taken over by the respondents which is clear from the affidavit  filed on behalf of the respondents as also from the photographs which  have been produced before this Court.  It was, therefore, prayed that  the appeal may be dismissed.

       Having heard the learned counsel for the parties and having  considered the relevant provisions of law as also the decisions of this  Court, in our opinion the appeal deserves to be partly allowed.  So far  as the finding recorded by the Prescribed Authority under the Act as  to bona fide requirement of the applicants is concerned, in our opinion  it is a pure finding of fact and cannot be disturbed by this Court.   Similarly, regarding comparative hardship, the Prescribed Authority  observed in the order that more hardship would be caused to the  applicants if the order would not be passed in their favour than the  hardship which would be caused to the opponents if the order of  eviction would be passed against them.  The said finding is also a  finding of fact and cannot be upset.  Hence, on both this counts, we  are unable to uphold the contention of the learned counsel for the  appellants.

       The question then remains as to effect of subsequent event.  It is  not in dispute between the parties that during the pendency of the Writ  Petition before the High Court, both the applicants died and their three  daughters were brought on record.  It is also not in dispute that all the  three daughters are married and they are at their marital homes with  their in-laws.  In view of the said fact an argument was advanced on  behalf of the tenants before the High Court that the said circumstance  was an eloquent one and must be taken into account which had  occurred during the pendency of the proceedings which would affect  the final outcome.  According to the tenants, in view of death of both  the applicants, the requirement as pleaded by the applicants in the  application did not survive and the application was liable to be  rejected.  It was the power and the duty of the High Court to take into  account subsequent event which emerged during the pendency of the  writ petition and pass an appropriate order taking into consideration  such development.  In support of the said contention, reliance was  placed by the learned counsel on several decisions of this Court.   

Per contra, it was argued on behalf of the respondents that the  legality and the validity of the decree or order passed by the  Prescribed Authority has to be tested on the basis of rights of the  parties as stood at the time when the application was filed.   Subsequent event could not take away accrued and vested right of the  applicants.

       The High Court held that the objection raised by the heirs of  applicants was well founded and the Court could not take into account  the subsequent event of death of applicants during the pendency of  writ petition.  It was also observed that a party could not be penalized  for the delay in court and when the order of eviction was legally  passed in favour of the applicants, it could not be set aside by

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considering the subsequent event of death of applicants.  The High  Court also observed that the decisions cited on behalf of the writ  petitioners wherein subsequent events were taken into account were in  appeals.  According to the High Court, an appeal can be said to be a  ’continuation of suit’ but not a writ petition.  It was observed that once  the case was decided by the Prescribed Authority and appeal was  dismissed by the District Judge, the High Court had no power to  consider subsequent events in the proceedings under Article 226/227  of the Constitution and accordingly it dismissed the writ petition.

       In our opinion, by not taking into account the subsequent event,  the High Court has committed an error of law and also an error of  jurisdiction.  In our judgment, the law is well settled on the point, and  it is this: The basic rule is that the rights of the parties should be  determined on the basis of the date of institution of the suit or  proceeding and the suit/action should be tried at all stages on the  cause of action as it existed at the commencement of the suit/action.   This, however, does not mean that events happening after institution  of a suit/proceeding, cannot be considered at all.  It is the power and  duty of the court to consider changed circumstances.  A court of law  may take into account subsequent events inter alia in the following  circumstances:  (i)     The relief claimed originally has by reason of subsequent  change of circumstances become inappropriate; or (ii)    It is necessary to take notice of subsequent events in order to  shorten litigation; or (iii)   It is necessary to do so in order to do complete justice between  the parties. [Re: Shikharchand Jain vs Digamber Jain Praband Karini Sabha &  Ors, (1974) 1 SCC 675 : (1974) 3 SCR 101]

Let us consider relevant case law in this regard.

Before about a century in Ram Rattan vs Mohant Saha, (1907)  6 Cal LJ 74 : 11 Cal WN 732, the High Court of Calcutta observed  that there are certain exceptions to the general rule that a suit must be  tried in all stages on the cause of action as it existed at the date of its  commencement.  In Lachmeshwar Prasad Shukul vs Keshwar Lal  Choudhury, 1940 FCR 84 : AIR 1941 FC 5, the Federal Court took  into account the provisions of the new Act which came into force  during the pendency of appeal before the Federal Court.

       In the leading decision of Pasupuleti Venkateswarlu vs. Motor  & General Traders, (1975) 1 SCC 770 : AIR 1975 SC 1409: (1975) 3  SCR 958, this Court considered a subsequent event.  The plaintiff  filed a suit for possession on the ground of personal requirement for  starting business and an order was passed in his favour.  An appeal  against the said order was also dismissed. The tenant filed a revision  petition in the High Court.  During the pendency of revision petition,  the plaintiff acquired possession of another non-residential building.  An application for amendment, therefore, was made by the tenant.   The High Court allowed the amendment.  The landlord challenged the  order in this Court.  It was contended by the landlord that the High  Court had committed an error in taking cognizance of subsequent  event which was ’disastrous’.  This Court, however, held that the High  Court did not commit any illegality in considering the subsequent  event.

       Following Lachmeshwar Prasad, law of ’ancient vintage’,  Krishna Iyer, J. stated:  

"We feel the submissions devoid of substance.  First  about the jurisdiction and propriety vis-‘-vis  circumstances which come into being subsequent to the  commencement of the proceedings.  It is basic to our

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processual jurisprudence that the right to relief must be  judged to exist as on the date a suitor institutes the legal  proceeding.  Equally clear is the principle that procedure  is the handmaid and not the mistress of the judicial  process.  If a fact, arising after the lis has come to court  and has a fundamental impact on the right to relief or  the manner of moulding it is brought diligently to the  notice of the tribunal, it cannot blink at it or be blind to  events which stultify or render inept the decretal  remedy.  Equity justifies bending the rules of procedure,  where no specific provision or fairplay is not violated,  with a view to promote substantial justice \026 subject, of  course, to the absence of other disentitling factors or just  circumstances.  Nor can we contemplate any limitation  on this power to take note of updated facts to confine it  to the trial Court.  If the litigation pends, the power  exists, absent other special circumstances repelling  resort to that course in law or justice.  Rulings on this  point are legion, even as situations for applications of  this equitable rule are myriad.  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 proceeding provided the rules of fairness to both  sides are scrupulously obeyed." (Emphasis supplied)

       Pasupuleti Venkateswarlu was followed in many cases.  In  Gulabbai vs. Nalin Narsi Vohra & Others, (1991) 3 SCC 483 : AIR  1991 SC 1760, an order of eviction was passed against the tenant on  the ground of bona fide need of the landlord.  Subsequent event of  shifting family of the landlord to a spacious bungalow constructed by  him during the pendency of appeal, was considered by this Court.   

In Ramesh Kumar vs Kesho Ram, (1992) Supp (2) SCC 623 :  AIR 1992 SC 700, this Court observed that a court can mould relief  taking ’cautious cognizance’ of subsequent events.  The Court also  observed that all these depend on factual and situational differences  and ’there can be no hard and fast rule governing the matter’.   

In Shadi Singh vs Rakha, (1992) 3 SCC 55 : AIR 1994 SC  800, a landlord sued a tenant for ejectment on the ground that the  building required thorough repair.  During the pendency of the suit,  the tenant carried out necessary repair.  Taking note of the event, this  Court dismissed the suit of the landlord.

       In Super Forgings & Steels (Sales) Pvt. Ltd. vs Thyabally  Rasuljee (Dead) Through LRs, (1995) 1 SCC 410, dealing with  power of this Court to take note of subsequent events in an appeal  under Article 136 of the Constitution, this Court stated that "the power  of this Court in an appeal under Article 136 of the Constitution to take  cautious cognizance of events and developments subsequent to  institution of eviction proceedings and grant, deny or mould the relief  sought by a party, in consonance with justice and fair play is not  restricted merely because it is exercising its power to deal with an  appeal conferred upon it by the Constitution."

       In P. Sriramamurthy vs Vasantha Raman (Mrs), (1997) 9  SCC 654 : AIR 1997 SC 1388,  an order of eviction was passed in  favour of landlord and against tenant on the ground of non-payment of  rent.  During the pendency of appeal before this Court, husband of the  landlady retired from service and they needed the premises for  personal occupation also.  Though the ground was not set up earlier,  taking note of subsequent event, this Court allowed the ground to be

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raised and granted the relief.

       In Lekh Raj vs Muni Lal & Others, (2001) 2 SCC 762 : AIR  2001 SC 996, this Court indicated that the law on the subject is well  settled.  The court should not shut its door in noticing subsequent  events.  All laws and procedures including functioning of courts are  all in aid to confer justice who knock its door.  The court should  interpret the law not in derogation of justice but in its aid.  Bringing  on record subsequent event, which is relevant, should, therefore, be  permitted to be brought on record to render justice to a party.  But the  court in doing so should be cautious not to permit it in a routine  manner.  It should refuse the prayer where party is doing so to delay  the proceedings and to harass the other party or doing so for any other  ulterior motive.  The court should also examine whether the alleged  subsequent event has any material bearing on issues involved or  would materially affect the result of the suit.

       In Om Prakash Gupta vs Ranbir B. Goyal, (2002) 2 SCC 256 :  AIR 2002 SC 665, this Court stated: "The ordinary rule of civil law is  that the rights of the parties stand crystallized on the date of the  institution of the suit and, therefore, the decree in a suit should accord  with the rights of the parties as they stood at the commencement of  the lis.  However, the Court has power to take note of subsequent  events and mould the relief accordingly subject to the following  conditions being satisfied: (i) that the relief, as claimed originally has,  by reason of subsequent events, become inappropriate or cannot be  granted; (ii) that taking note of such subsequent event or changed  circumstances would shorten litigation and enable complete justice  being done to the parties; and (iii) that  such subsequent event is  brought to the notice of the court promptly and in accordance with the  rules of procedural law so that the opposite party is not taken by  surprise."         Strong reliance was placed by the contesting respondents on a  decision of this Court in Rameshwar & Others vs Jot Ram &  Another, (1976) 1 SCC 194 : (1976) 1 SCR 847, before the High  Court as well as before us. In Rameshwar, the tenant had become  ’deemed purchaser’ under the Punjab Security of Land Tenures Act,  1953.  During the pendency of appeal, the ’large’ land owner died and  his heirs became ’small’ land owners.  It was, therefore, contended on  behalf of the land owners in appeal that since appeal is continuation of  suit, subsequent event of death of the original owner should be  considered.  This Court, however, refused to take note of subsequent  event on equitable considerations.  Keeping in view the agrarian  reforms, this Court said: "To hold that, if the landlord dies at some  distant date after the title has vested in the tenant, the statutory process  would be reversed if by such death, his many children, on division,  will be converted into small landholders, is to upset the day of  reckoning visualized by the Act and to make the vesting provision ’a  teasing illusion’, a formal festschrift to agrarian reform, not a flaming  programme of ’now and here’.  These surrounding facts drive home  the need not to allow futurism, in a dawdling litigative scene, to foul  the quick legislative goals." (emphasis supplied)         In Gaya Prasad vs Pradeep Srivastava, (2001) 2 SCC 604 :  AIR 2001 SC 803, an eviction petition was filed in 1978 by the  landlord on the ground of bona fide need for the use as a clinic by his  son.  The petition was allowed by the Rent Controller in 1982 and the  order was confirmed by the Appellate Authority in 1985.  During the  pendency of the petition in the High Court, however, the son joined  medical service.  Relying on the said development, it was contended  by the tenant before the High Court that the landlord was no more in  need of the premises and the petition was liable to be dismissed.  The  High Court dismissed the revision petition.  The aggrieved tenant  approached this Court.  It was contended on behalf of the tenant that a  subsequent development could not have been ignored by the High  Court, particularly when the eviction was sought for personal use and

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the need no more continued in view of acceptance of service by the  son of the landlord.  This Court, however, negatived the contention  and stated:  "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  pendent lite, because the opposite party succeeded in  prolonging the matter for such unduly long period."

       We must now refer to Hasmat Rai.  As already noted, notice  was issued by this Court on October 29, 1999 in view of the decision  of this Court in Hasmat Rai.  In the said decision, three Judge Bench  of this Court held that when eviction was sought on the ground of  personal requirement of landlord, such requirement must continue to  exist till the final determination of the case.  Following the ratio laid  down in Pasupuleti Venkateswarlu, Desai J. stated; "It is now  convertible 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 also subsist  till the final decree or order for eviction is made.   If in the meantime  events have crept up which would show that the requirement of the  landlord is wholly satisfied then in that case his action must fail and in  such a situation it is not incorrect to say that such decree or order for  eviction is passed against the tenant, he cannot invite the Court to take  into consideration the subsequent events." (emphasis supplied)

       In view of the settled legal position as also the decisions in  Pasupuleti Venkateswarlu and Hasmat Rai, in our opinion, the High  Court was in error in not considering the subsequent event of death of  both the applicants.  In our view, it was power as well as the duty of  the High Court to consider the fact of death of the applicants during  the pendency of the writ petition.  Since it was the case of the tenant  that all the three daughters got married and were staying with their in- laws, obviously, the said fact was relevant and material.  The ratio laid  down by this Court in Rameshwar, would not apply to the facts of this  case as it related to agrarian reforms.  Likewise, Gaya Prasad, does  not carry the matter further.  There during the pendency of

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proceedings the son for whom requirement was sought had joined  Government Service.  In the instant case, the requirement was for the  applicants, who died during the pendency of writ petition.  Gaya  Prasad is thus clearly distinguishable.   

       There is yet another reason on which the order passed by the  High Court is liable to be set aside.  As stated earlier, notice was  issued by this Court on October 29, 1999 in view of provisions of sub- section (7) of Section 21 of the Act.  Sub-section (1) of the said  section enables the landlord to get possession of the tenanted properly  on certain grounds.  One of such grounds is bona fide requirement by  the landlord for residential purposes or for purposes of any profession,  trade or calling.  Sub-section (1) has to be read with sub-section (7) of  Section 21.  The relevant part of Section 21 reads as under; "21.    Proceedings for release of building under  occupation of tenant.\027(1) 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\027

(a)     that the building is bona fide 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 whose benefit it is held  by him, either for residential  purposes or for purposes of any  profession, trade, or calling, or where  the landlord is the trustee of a public  charitable trust, for the objects of the  trust ;  

\005            \005            \005

(7)     Where during the pendency of an  application under clause (a) of sub-section (1),  the landlord dies, his legal representatives shall  be entitled to prosecute such application further  on the basis of their own need in substitution of  the need of the deceased."

       Conjoint reading of clause (a) of sub-section (1) and sub- section (7) of Section 21 makes it clear that where the possession is  sought by the landlord on the ground of bona fide requirement and  during the pendency of the application, the landlord dies, his legal  representatives can prosecute such application on the basis of their  own need in substitution of the need of the deceased.

       In the light of decisions referred to by us, particularly in  Hasmat Rai and the provisions of sub-section (7) of Section 21 of the  Act, the High Court has to consider the matter and record a finding.

       For the reasons aforesaid, the appeal deserves to be allowed by  setting aside the order passed by the High Court.  The matter is  remitted to the High Court with a direction that the High Court shall  consider the subsequent event of death of both the applicants and also  the provisions of sub-section (7) of Section 21 of the Act in the light  of observations made hereinabove and pass an appropriate order in  accordance with law after hearing the parties.         Regarding possession, as already noted earlier, according to  respondents, after the dismissal of the appeal in default and before  restoration, they have already taken over possession of the shop.  

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According to the appellants, however, possession has remained with  them.  We express no opinion.  When we are remitting the matter to  the High Court with a direction that the High Court will decide the  matter afresh according to law, appropriate order will be passed in  consonance with the final decision by the High Court.  Till then status  quo as of today shall continue.  There shall be no order as to costs.