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CASE NO.: Appeal (civil)  2480 of 2007

PETITIONER: Ram Kumar Barnwal

RESPONDENT: Ram Lakhan (dead)

DATE OF JUDGMENT: 14/05/2007

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO.    2480           OF 2007 (Arising Out of S.L.P. (C) No.9817 of 2004)

Dr. ARIJIT PASAYAT, J.

Leave granted.

Challenge in this appeal is to the judgment rendered by a  learned Single Judge of the Allahabad High Court.  By the  impugned judgment the High Court came to the conclusion  that even if it is found that the decisions of the Courts below  are erroneous in law, the matter needs to be remanded to the  prescribed authority. A release petition was filed by the  appellant claiming to be the landlord under Section 21 of the  Uttar Pradesh Urban Building (Regulation of Letting, Rent and  Eviction) Act, 1972 (in short the ’Act’).   

The background facts as projected by the appellant are  as follows:

Appellant is the owner and the landlord in respect of  disputed shop situated in Mohalla Asifganj, Azamgarh City,  Uttar Pradesh.  In the year 1947 respondent no.1 Ram  Lakhan was inducted as a tenant in the shop in question on  monthly rent of Rs.40/- by the then owner.  In the year 1952  the disputed shop was purchased by the appellant’s mother  Smt. Pyari Kunwar.  After the death of his mother, appellant  became owner of the property. Family of the appellant at that  time was very small. Since appellant had no commercial space  available he was carrying on business in a shop belonging to  one Shri Jagannath which he had taken on rent.  During the  pendency of the case before the High Court, the appellant was  evicted from the said shop and he has no other premises to  carry on the business.  Appellant has three sons.  Apart from  the disputed shop, the appellant had another small shop  adjacent to it.  As appellant’s son Asthbujhi Prasad wanted to  carry on business the said shop is being used by him.   Appellant’s two other sons are unemployed and one of them  has completed Chartered Accountancy course. Due to non- availability of commercial space, the said son Kameshewar  Prasad had to set up his office at a distance of 100 Kms.    Since respondent no.1 was repeatedly committing default in  payment of rent to the mother of the appellant, a suit had  been filed (Suit no. 23 of 1970) for ejectment of respondent  no.1 on the ground of default.  Though suit was decreed upto

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second appeal stage,  in appeal the order of ejectment was set  aside by this Court by judgment dated 30.11.1976,  as  respondent no.1 had started depositing rent under Section 30  of the Act.  In 1980, appellant moved an application under  Section 21(1)(a) of the Act.  The same was resisted by the  respondent.  The Prescribed Authority on the report of the  Commissioner, who was appointed to make inspection of the  premises, held that the eviction petition was not maintainable.   The First Appellant Authority upheld the order of rejection by  the Prescribed Authority. Appellant filed a writ petition before  the High Court questioning correctness of the judgment and  order dated 22.4.1983 of the Appellate Authority affirming  order of the Prescribed Authority. Appellant brought to the  notice of the High Court that he had been evicted from the  tenanted premises where he was carrying on business and,  therefore, he was left with no accommodation to earn his  livelihood. The High Court, as noted supra, held that even if it  is found that the findings of the courts below are erroneous in  law the matter has remanded to the Prescribed Authority as  the release application was filed quarter of century ago, and  bona fide need, and comparative hardship change by the  passage of time. The writ petition was dismissed granting  liberty to the appellant to file fresh release application.   

Learned counsel for the appellant submitted that the  approach of the High Court is clearly erroneous. It is settled  position in law that subsequent events can be taken note of.   The High Court, even though referred to the relevance of the  subsequent events erroneously came to the conclusion that  even if the judgment and order passed by the courts below are  erroneous in law, the matter will have to be remanded to the  Prescribed Authority.  There is no such requirement in law.  In  fact, after noticing that the release application was filed about  quarter of century back, it is really unfortunate that the High  Court instead of deciding the matter dismissed the writ  petition granting liberty to file fresh release application.  In  other words, instead of shortening litigation the High Court’s  order would mean unnecessary prolongation of litigation.  

Learned counsel for the respondent on the other hand  supported the orders of the High Court and the courts below.

It is to be noted that the original tenant has expired  during the pendency of the proceedings before this Court and  the legal heirs have been substituted in terms of this Court’s  16.8.2005 passed in I.A. No.3.

The question relating to relevance of subsequent events  during pendency of proceedings has been examined by this  Court in many cases.  In Pasupuleti Venkateswarlu v. The Motor & General  Traders (1975 (1) SCC 770) it was observed as follows: "3.     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 cognizance 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. 4.      We feel the submissions devoid of

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substance. First about the jurisdiction and  propriety vis-a-vis circumstances which 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  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 violated, with  a view to promote substantial justice-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 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 cognizance 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 Section 10(3)(iii) itself. We are not disposed  to disturb this approach in law or finding of  fact. 5.      The law we have set out is of ancient  vintage. We will merely refer to Lachmeshwar  Prasad Shukul v. Keshwar Lal Chaudhuri (AIR  1941 FC 5) 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  (294 U.S. 600, 607) : 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.

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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. 309 U.S.  551, 555. Sulaiman J., in the same case (AIR  1941 FC 5) 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 heard 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 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."  

To similar effect is the decision of this Court in Om  Prakash Gupta v. Ranbir B. Goyal (2002 (2) SCC 256).  It was,  inter alia, observed in that case as follows: "11. The ordinary rule of civil law is that the  rights of the parties stand crystalised 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; (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. In Pasupuleti Venkateswarlu v. The  Motor & General Traders (1975 (1) SCC 770),   this Court held that a fact arising after the lis,  coming to the notice of the Court and having  a fundamental impact on the right to relief or  the manner of moulding it and brought  diligently to the notice of the Court cannot be  blinked at. The Court may in such cases bend  the rules of procedure if no specific provision  of law or rule of fairplay is violated for it  would promote substantial justice provided  that there is absence of other disentitling  factors or just circumstances. The court  speaking through Krishna Iyer, J. affirmed  the proposition that court can, so long as the  litigation pends, take not of updated facts to

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promote substantial justice. However, the  court cautioned: (i) the event should be one as  would stultify or render inept the decretal  remedy. (ii) rules of procedure may be bent if  no specific provision or fairplay is violated and  there is no other special circumstance  repelling resort to that course in law or  justice, (iii) such cognizance of subsequent  events and developments should be cautious,  and (iv) the rules of fairness to both sides  should be scrupulously obeyed. 12. Such subsequent event may be one purely  of law or founded on facts. In the former case,  the Court may take judicial notice of the event  and before acting thereon put the parties on  the notice of how the change in law is going to  affect the rights and obligations of the parties  and modify or mould the course of litigation  or the relief so as to bring it in conformity  with the law. In the latter case, the party  relying on the subsequent event, which  consists of facts not beyond pale of  controversy either as to their existence or in  their impact, is expected to have resort to  amendment of pleadings under Order 6 Rule  17 of the CPC. Such subsequent event the  Court may permit being introduced into the  pleadings by way of amendment as it would  be necessary to do so for the purpose of  determining real questions in controversy  between the parties. In Trojan & Co. v.  R.M.N.N. Nagappa Chettiar (AIR 1953 SC 235)  this Court has held that the decision of a case  cannot be based on grounds outside the  pleadings of the parties and it is the case  pleaded that has to be found; without the  amendment of the pleading the Court would  not be entitled to modify or alter the relief. In  Sri Mahant Govind Rao v. Sita Ram Kesho  and Ors. (1898) 25 Indian Appeals 195 (PC),  their Lordships observed that, as a rule, relief  not founded on the pleadings should not be  granted. 13. Power of the Court to take note of  subsequent events, specially at the appellate  stage, came up for consideration of a Full  Bench of Nagpur High Court presided over by  Justice Sinha (as His Lordship then was) in  Chhote Khan v. Mohammad Obedalla Khan,  AIR 1953 Nag 361. Hidayatullah, J. (as His  Lordship then was) held, on a review of  judicial opinion, that an action must be tried  in all its stages on the cause of action as it  existed at the commencement of an action. No  doubt, Courts ’can’ and sometimes ’must’  take notice of subsequent events, but that is  done merely ’inter partes’ to shorten litigation  but not to give to a defendant an advantage  because a third party has acquired the right  of the plaintiff. The doctrine itself is of an  exceptional character only to be used in very  special circumstances. It is all the more  strictly applied in those cases where there is a  judgment under appeal. His Lordship quoted  the statement of law made by Sir Asutosh

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Mookerjee, J. in a series of cases that merely  because the plaintiff loses his title ’pendente  lite’ is no reason for allowing his adversary to  win if the corresponding right has not vested  in the adversary but in a third party. In the  case at hand, the defendant-appellant has  simply stated the factum of proceedings  initiated by HUDA against the plaintiff- respondent in an affidavit very casually filed  by him. He has not even made a prayer to the  Court to take notice of such subsequent event  and mould the relief accordingly, or to deny  the relief to the plaintiff-respondent as  allowed to him by the judgment under appeal,  much less sought for an amendment of the  pleadings. The subsequent event urged by the  defendant-appellant is basically a factual  event and cannot be taken cognizance unless  brought to the notice of the Court in  accordance with established rules of  procedure which if done would have afforded  the plaintiff-respondent an opportunity of  meeting the case now sought to be set up by  the appellant. We do not think this Court  would be justified in taking notice of a fact  sought to be projected by the appellant in a  very cavalier manner. The fact remains that  the present one is a landlord-tenant dispute  and we cannot upset the relief granted by the  courts below and the High Court to the  plaintiff-respondent by relying on the doctrine  of eviction by title paramount as it cannot be  said that the proceedings initiated by HUDA  against the plaintiff-respondent have achieved  a finality or are such proceeding wherein the  plaintiff-respondent cannot possibly have any  sustainable defence."

Earlier in Ramesh Kumar v. Kesho Ram (1992 Supp. (2)  SCC 623), it was held as follows:                                                                           "6.     The normal rule is that in any litigation  the rights and obligations of the parties are  adjudicated upon as they obtain at the  commencement of the lis.  But this is subject  to an exception. Wherever subsequent events  of fact or law which have a material bearing  on the entitlement of the parties to relief or on  aspects which bear on the moulding of the  relief occur, the court is not precluded from  taking a ’cautious cognizance’  of the  subsequent changes of fact and law to mould  the relief.  In Lachmeshwar Prasad Shukul v.  Keshwar Lal Chaudhuri (AIR 1941 FC 5) Chief  Justice Sir Maurice Gwyer observed: (AIR  p.6):

"But with regard to the question  whether the court is entitled to take into  account legislative changes since the  decision under appeal was given, I  desire to point out that the rule adopted  by the Supreme Court of the United  States is the same as that which I think

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commends itself to all three members of  this Court.  In Patterson v. State of  Alabama (1934) 294 US 600, Hughes  C.J. said:

’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 in Pasupuleti Venkateshwarlu v. The  Motor & General Traders (1975 (1) SCC 770)  Justice Krishna Iyer said: (SCC p. 772, para  4).

"We feel the submissions devoid of  substance. First about the jurisdiction  and propriety vis-a-vis circumstances  which 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 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  violated, with a view to promote  substantial justice-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 myraid."  

       Above being the position the High Court was not justified  in disposing of the writ petition in a summary fashion. We  accordingly set aside the order of the learned Single Judge  and remand the matter to the High Court for fresh  consideration keeping in view the principles set out above in

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the background facts.  Since the matter is pending since long,  we request the High Court to dispose of the matter within a  period of four months from the date of receipt of a copy of this  judgment.   

       The appeal is allowed to the aforesaid extent.  No costs.