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PETITIONER: PASUPULETI VENKATESWARLU

       Vs.

RESPONDENT: THE MOTOR & GENERAL TRADERS

DATE OF JUDGMENT18/03/1975

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. RAY, A.N. (CJ) MATHEW, KUTTYIL KURIEN

CITATION:  1975 AIR 1409            1975 SCR  (3) 958  1975 SCC  (1) 770  CITATOR INFO :  RF         1976 SC  49  (8,9)  R          1980 SC1334  (14)  R          1981 SC1113  (6,15)  E&R        1981 SC1711  (5,14)  RF         1981 SC2085  (23)  RF         1984 SC 143  (3)  F          1985 SC 817  (15)  RF         1987 SC 741  (10)  D          1988 SC  13  (4)  RF         1990 SC 897  (9)  RF         1991 SC1760  (22)  RF         1992 SC 700  (4)

ACT: Appellate  Jurisdiction,  exercise of--Court, if  can  mould reliefs in appeal by taking into account facts subsequent to institution of proceedings. Andhra pradesh Buildings (Lease, Rent and Eviction)  Control Act,  1960, Section 10(3)(iii)(a) and (b)--Revision to  High Court   against  order  of  wholesale  remittal   to   trial Court--High Court, if can take into account subsequent  fact and dismiss the eviction petition also.

HEADNOTE: The  appellant, a landlord of a large building,  had  leased out  in separate portions his building to  several  tenants. One of such tenants is the respondent.  The former  resolved to  start  a  business  in  automobile  spares  and  claimed eviction  of  the respondent by  Rent  Control  proceedings, under  s.  10(3)(iii)(a)  and  (b)  of  the  Andhra  Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960.  The petition was resisted and the Rent Controller dismissed  the petition.   The  appeal  by  the  landlord  failed  but,  in revision,  the  High Court chose to remand the case  to  the appellate authority.  The appellate authority, after hearing parties,  remitted  the whole case to the  trial  Court  for fresh disposal in accordance with certaindirections and, after  allowing  parties  to  lead  evidence.   Instead   of finishing thecase  at the trial Court level, the  landlord preferred a revision to the High Courton the ground that a wholesale  remittal, as against calling for a finding  on  a

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specific  point, was illegal.  The High Court held  that  if the fact of the landlordhaving come into possession  during the pendency of the proceedings of Shop No. 2 is to be taken into  account,  then  clearly  the  petition  is  no  longer maintainable  under  section  10(3)(iii) of  the  Act.   The inevitable  sequel was the dismissal, not only of the  civil revision, but also of the eviction petition. In  this appeal by special leave, it was contended  for  the appellants  : (i) It was illegal for the High Court to  have taken  cognisance  of subsequent events; and (ii)  Once  the High Court held-as it did-that the appellate tribunal  acted illegally in remiting the whole case to the Rent Controller, it  could  not  go further to  dismiss  his  whole  eviction proceedings. Allowing the appeal partially, HELD  : (i) 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 cognisance of events Ind  de- velopments  subsequent to the institution of the  proceeding provided   the  rupees  of  fairness  to  both   sides   are scrupulously obeyed.  On both occassions, the High Court, in revision,  correctly took this view.  The later recovery  of another  accommodation by the landlord, during the  pendency of  the  case, has as the High Court twice  pointed  out,  a material  bearing  on  the right to evict, in  view  of  the inhibition  written  into s. 10(3) (iii) itself.   The  High Court was right in taking into consideration the facts which came  into  being  subsequent to  the  commencement  of  the proceedings. [960 G-H] Lachmeshwar  Prasad Shukul v. Keshwar Lal  Chaudhuri  [19401 F.C,R. 85; Patterson V. State of Alabama, 294 U.S. 600,  607 and  Minnesota v. National Co. 309 U.S. 551,  555,  referred to. (ii)  It is unfair to drive parties to a new  litigation  of unknown duration and therefore, in the special circumstances of this case, it is directed that : (a) the revision  before the   High  Court  shall  stand  dismissed;  (b)  the   Rent Controller  will  take note of  the  subsequent  development disabling the landlord from seeking eviction on which  there is already an adverse finding by the High Court; (c) the 959 landlord  be allowed to amend his petition if he has a  case for  eviction on any other legally permissible  ground;  and (d)  the parties be given fair and full opportunity to  file additional  pleadings  and lead evidence thereon.   But  the subsequent  event  that the petitioner had come  by  a  non- residential accommodation of his own in the same town having been  found  by  the High Court, cannot  be  canvassed  ever again.  That finding of legal disability cannot be reopened. [961 G-H]

JUDGMENT: CIVIL  APPELLATE JURISDICTION : Civil Appeals Nos.  2120  to 2122 of 1972. Appeals  by special leave from the judgment and order  dated the  7th  April  1972 of the Andhra Pradesh  High  Court  in C.R.P. No. 1576-78 of 1971. K.  S. Ramamurthi, M. S. Narayana Achari and C. S.  S.  Rao, for the appellant. K.   R.  Choudhury  and  K.  Rajendra  Choudhry,   for   the respondent. The Judgment of the Court was delivered by

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KRISHNA  IYER, J.-Once the facts are stated fairly,  one  is left  to wonder what substantial issue of law  deserving  of adjudication  by the Supreme Court survives at all in  these appeals.  We may straightway proceed to state, with brevity, the  case  of the appellant presented for our  scrutiny  and make short shrift of it as it merits little more. The  appellant, a landlord of a large building,  had  leased out  in separate portions his building to  several  tenants. One of such tenants is the respondent.  The former  resolved to  start  a  business  in  automobile  spares  and  claimed eviction  of  the respondent by  Rent  Control  proceedings, under  s.  10(3)  (iii) (a) and (b) of  the  Andhra  Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960.  The petition was resisted and the Rent Controller dismissed  the petition.   The  appeal  by  the  landlord  failed  but,  in revision,  the  High Court chose to remand the case  to  the appellate  authority.   The  litigation  lengthened  further because  the  latter, after hearing  parties,  remitted  the whole  case  to  the  trial  Court  for  fresh  disposal  in accordance with some directions and, after allowing  parties to  lead  evidence.  Instead of finishing the  case  at  the trial  court level, the landlord repeated a revision to  the High  Court on the perhaps technically correct stand that  a wholesale  remittal, as against calling for a finding  on  a specific   point,  was  illegal.While   hearing   protracted arguments  it  came  to the ken of the  court  that  certain material  events of fatal import to the  maintainability  of the eviction proceedings had come to pass and so it  decided to  mould  the  relief  in  the  light  of  these   admitted happenings.  The learned judge observed               "If the fact of the landlord having come  into               possession   during   the  pendency   of   the               proceedings of Shop No. 2 is to be taken  into               account,  as indeed it must be,  then  clearly               the  petition is no longer  maintanable  under               Section  10(3)  (iii)  of  the  Act,  as   the               requisite  condition for the invoking of  that               provision  has ceased to exist viz., that  the               landlord  was not occupying a  non-residential               building in the town.  ’Building, 960               of  course means a portion of a building.   As               the  prerequisite for the entitlement  of  the               petitioner   to  institute  and   continue   a               petition  has ceased to exist, it must  follow               that ABA No. 5/1967 is no longer  maintainable               and must be dismissed." The  inevitable  sequel was the dismissal, not only  of  the civil  revision, but also of the eviction  petition.   Thus, after a marathon forensic battle lasting over six years, the landlord lost even the flickering hope of success before the trial  Court as a result of supererogatory revision  to  the High Court.  It is against this adverse decision he has,  by special leave, come to this Court. Two  submissions  were advanced by Sri K. S.  Ramamurthy  to salvage  his client’s case.  He argued that it  was  illegal for  the High Court to have taken cognisance  of  subsequent events, disastrous as they proved to be.  Secondly, he urged that  once the High Court held-as it did that the  appellate tribunal acted illegally in remitting the whole case to  the Rent  Controller,  it could not go further  to  dismiss  his whole eviction proceedings, a misfortune heavier than  would have been, had he not moved the High Court at all. We  feel the submissions devoid of substance.   First  about the jurisdiction and propriety vis a vis circumstances which

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come  into  being  Subsequent to  the  commencement  of  the proceedings.   It is basic to our  processual  jurisprudence that  the right to relief must be judged to exist as on  the date  a  suitor institutes the  legal  proceeding.   Equally clear  is the principle that procedure is the  handmaid  and not  the  mistress  of the judicial  process.   If  a  fact, arising  after  the  lis  has  come  to  court  and  has   a fundamental impact on the right to relief for 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  decrotal  remedy.   Equity justifies bending the rules of procedure, where no  specific provision  or fairplay is violated, with a view  to  promote substantial  justice--subject, of course, to the absence  of other  disentitling (actors 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 myraid.  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 cognisance  of  events and developments  subsequent  to  the institution of the proceeding provided the rules of fairness to  both sides are scrupulously obeyed.  On  both  occasions the High Court, in revision, correctly took this view.   The later  recovery  of another accommodation by  the  landlord, during the pendency of the case, has as the High Court twice pointed  out,  a material bearing on the right to  evict  in view  of the inhibition written into s. 10(3) (iii)  itself. We  are  not  disposed to disturb this approach  in  law  or finding of fact. 961 The  law  we have set out is of ancient  vintage.   We  will merely  refer  Lo Lachmeshwar Prasad Shukul v.  Keshwar  Lal Chaudhuri(1)  which is a leading case on the  point.   Gwyer C.J., in the above case, referred to the rule adopted by the Supreme Court of the United States in Patterson v. State  of Alabama(2) :               "We have frequently held that in the  exercise               of  our appellate jurisdiction we  have  power               not  only  to correct error  in  the  judgment               under  review but to make such disposition  of               the   case  as  justice  requires.    And   in               determining  what  justice does  require,  the               Court is bound to consider any change,  either               in fact or in law, which has supervened  since               the judgment was entered." and said that that view of the Court’s powers was reaffirmed once again in the then recent case of Minnesota v.  National Tea  Co.  (3).  Sulaiman J., in the same case(1)  relied  on English cases and took the view that an appeal is by way  of a re-hearing and the Court may make such order as the  Judge of  the first instance could have made if the case had  been beard  by  him  at the date on which the  appeal  was  heard (emphasis,  ours).   Varadachariar J., dealt with  the  same point  a  little  more  comprehensively.   We  may   content ourselves  with excerpting one passage which brings out  the point luminously (at p. 103) :               "It  is also on the theory of an appeal  being               in the nature of a re-hearing that the  courts               in   this  country  have  in  numerous   cases

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             recognized  that in moulding the relief to  be               granted  in  a case on appeal,  the  court  of               appeal  is entitled to take into account  even               facts   and  events  which  have   come   into               existence after the decree appealed against." The  High  Court,  in this case, in  the  concluding  stages slightly self contradicted itself and observed : ’the  civil revision  petition  cannot  be  entertained’  and  proceeded further  to state : ’It will not be desirable that I  should exercise  my  discretion in directing an  amendment  of  the petition’.   In  conclusion,  the  Court  did  interfere  in revision by setting aside the order of remittal to the  Rent Controller and dismissing the eviction petition, leaving the near  decade-old  litigation  to  be  reopened  in  a  fresh unending chapter of forensic fight.  The learned Judge  gave little  comfort to the litigant who had come with  a  proved case  of bona fide requirement to start his own business  by his obscure observation : ’If so advised the petitioner  may seek to obtain such relief as may be open to him by filing a fresh  petition under the appropriate provision of the  Act, in  view  of the subsequent event of his  having  come  into possession of a portion of the building.  We think it unfair to drive parties to a new litigation of unknown duration but direct, in the special circumstances of the case (which  are peculiar)  that  : (a) the revision before  the  High  Court shall  stand  dismissed; (b) the Rent Controller  will  take note  of the subsequent development disabling  the  landlord from  seeking eviction on which there is already an  adverse finding by the High Court; (1)  [1940] F.C.R. 85. (3)  309 U. S. 551, 555. (2)   294 U. S. 600, 607. 962 (c)  The landlord be allowed to amend his petition if he has a case for eviction on any other legally permissible ground; and  (d) the parties be given fair and full  opportunity  to file additional pleadings and lead evidence thereon.  But we make it clear that the subsequent event that the  petitioner had  come by a non-residential accommodation of his  own  in the same town having been found by the High Court, cannot be canvassed  over  again.  That finding  of  legal  disability cannot be reopened.  We keep open for enquiry only  grounds, if  any, which may reasonably be permitted by  amendment  it they are of any relevance or use for eviction. With  these  observations we partially allow the  appeal  as indicated  above  and  direct  the  parties  to  bear  their respective costs. V.M.K.                     Appeal partly allowed. 963