Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICITION

CIVIL APPEAL NO. 565 OF 2005

Seshambal (dead) Through L.Rs. …Appellants

Versus

M/s Chelur Corporation Chelur  Building & Ors. …Respondents

J U D G M E N T

T.S. THAKUR, J.

1. This  appeal  by  Special  Leave  arises  out  of  an  order  

passed by the  High Court  of  Kerala  at  Ernakulam whereby  

C.R.P.  No.558  of  1994  has  been  dismissed  and  the  orders  

passed by the Rent Controller and the Rent Control Appellate  

Authority  dismissing  the  eviction  petition  filed  against  the

tenant wife affirmed.  In a nutshell, the facts giving rise to the  

controversy are as under:

2.      Late Shri K. Sachindanda Iyer and his wife late Smt. A  

Sheshambal  Sachindanda  Iyer  owners  of  the  premises  in  

dispute let out the same to respondent No.1 for a period of  

three years in terms of a lease dated 12th April, 1983.  On the  

expiry of the lease period the owners filed RCP No.116 of 1986  

before the Rent Controller  at  Ernakulam seeking eviction of  

the  tenant-occupant  on  the  ground  that  they  required  the  

same  for  their  bona  fide  personal  occupation  within  the  

meaning of Section 11(3) of the Kerala Buildings (Lease and  

Rent Control Act), 1965. The prayer for eviction was opposed  

by the tenant, inter alia, on the ground that the owners did  

not require the demised premises and that the tenant would  

find it difficult to shift its business to any other premises on  

account  of  non-availability  of  a  suitable  accommodation  for  

being  so.  The  Rent  Controller  eventually  came  to  the  

conclusion that the owners had failed to establish their bona  

fide requirement of premises. The Rent Controller held that the  

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owners  had  shifted  their  residence  from  Cochin  and  were  

living with their daughter and son-in-law who were running a  

nursing home in that city.

3. Aggrieved by the order passed by the Rent Controller, the  

owners appealed to the Appellate Authority who affirmed the  

decision taken by the Rent Controller holding that the owners  

were  residing  with  their  daughter  and  son-in-law  at  

Ernakulam in a building owned by the owners. The Appellate  

Authority  also  found  that  the  owners  had  a  cottage  at  

Kodaikanal and that being fairly old had no reason to shift  

back  to  Ernakulam  in  search  of  better  medical  facilities  

especially when their own son-in-law was running a nursing  

home at  Coimbatore  where  such  facilities  were  available  to  

them.  Absence  of  any  medical  evidence  to  show  that  the  

owners suffered from any illness was also cited as a ground for  

dismissal of the prayer for eviction.   

4. Aggrieved by the  orders passed by the  Rent Controller  

and the Appellate Authority the owners brought up the matter  

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before the High Court of Kerala in a revision with a view to  

have the concurrent findings recorded by the Courts below set  

aside.  The  High  Court,  as  noted  earlier,  has  refused  to  

intervene in the matter  and dismissed the revision petition.  

The High Court held that it was not expected to reappraise the  

evidence  produced  by  the  parties  in  the  exercise  of  its  

revisional jurisdiction and that the limited question that fell  

for its consideration was whether the procedure followed by  

the Rent  Controller  and the Appellate  Authority  was illegal,  

irregular or improper. The High Court noted that the rent of  

the premises paid by the tenant had not been revised since the  

year 1973.  The same was, therefore, enhanced to Rs.10,000/-  

p.m. w.e.f.  1.11.2003 onwards with liberty to the parties to  

approach the competent Court for fixation of fair rent for the  

demised premises. The present appeal, as seen earlier, calls in  

question the correctness of the above orders.

5. It  is  not  in  dispute  that  during  the  pendency  of  the  

revision petition before  the High Court  the landlord Shri  K.  

Sachindanda  Iyer  passed  away  on  24th April,  1996  leaving  

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behind his wife Smt. A. Sheshambal Sachindanda Iyer as the  

sole  revision  petitioner  seeking  eviction  of  the  respondent-

tenant. Consequent upon the dismissal of the revision petition  

the  present  appeal  was  filed  by  Smt.  A.  Sheshambal  

Sachindanda  Iyer  alone  who  too  passed  away  before  this  

appeal could be heard for final disposal. IA No.7/2008 filed on  

14th November,  2008  sought  substitution  of  the  legal  

representatives  of  the  appellant  on  the  basis  of  a  Will  left  

behind by the  deceased according to which the property  in  

question has to devolve upon the three daughters left behind  

by  the  deceased.  It  is  common  ground  that  two  of  the  

daughters  are  living  in  India  one  each  at  Coimbatore  and  

Bihar the third daughter is settled in America.

6. The  short  question  that  was,  in  the  above  backdrop,  

argued  by  learned  counsel  for  the  parties  at  considerable  

length  was  whether  the  proceedings  instituted  by  the  

deceased-owners of the demised property could be continued  

by the legal heirs left behind by them. Mr. K.V. Vishwanathan,  

learned  senior  counsel,  appearing  for  the  legal  heirs  of  the  

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deceased-appellant contended that it was permissible for the  

legal  heirs  to  continue  the  present  proceedings  and  seek  

eviction of the tenant on the basis of the requirement pleaded  

by the erstwhile owners in the eviction petition filed by them.  

The  rights  and  obligations  of  the  parties,  argued  Mr.  

Vishwanathan, get crystallized as on the date of the filing of  

the  petition.  Any subsequent  development,  according to the  

learned counsel, would be irrelevant to the maintainability or  

the  continuance  of  the  proceedings  after  the  death  of  the  

original  petitioners.  Reliance  in  support  of  that  submission  

was placed by the learned counsel upon the decisions of this  

Court in  Shamshad Ahmad  vs. Tilak Raj Bajaj (2008 (9)  

SCC  1),  Maganlal  Vs.  Nanasaheb  (2008  (13)  SCC  758),  

Pratap Rai Tanwani  Vs. Uttam Chand (2004 (8) SCC 490),  

Gaya Prasad  Vs. Pradeep Srivastava (2001 (2)  SCC 604),  

Kamleshwar Prasad Vs. Pradumanju Agarwal (1997 (4) SCC  

413), Shakuntala Bai Vs. Narayan Das (2004 (5) SCC 772),  

G.C. Kapoor  Vs. Nand Kumar Bhasin (2002 (1) SCC 610)  

and  Shantilal Thakordas  Vs.  Chimanlal Maganlal Telwala  

(1976 (4) SCC 417).

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7. On behalf  of  the respondent-tenants Mr.  L.  Nageswara  

Rao,  learned  senior  counsel,  placed  heavy  reliance  on  the  

decisions  of  this  Court  in  Pasupuleti  Venkateswarlu  Vs.  

Motor  and  General  Traders  (1975  (1)  SCC  770),  Om  

Prakash Gupta  Vs. Ranbir  B.  Goyal  (2002 (2)  SCC 256),  

Hasmat Rai Vs. Raghunath Prasad (1981 (3) SCC 103) and  

Baba Kashinath Bhinge  Vs. Samast Lingayat Gavali (1994  

Supp (3) SCC 698).  It was argued by Mr. Rao that the legal  

position  as  to  whether  the  Court  could  take  note  of  the  

subsequent developments stood settled by the above decisions  

which left no manner of doubt that all such developments as  

have an impact on the rights and obligations of the parties  

must be taken into consideration by the Court and the relief  

suitably moulded.  

8. The eviction petition, as noted earlier, was filed in terms  

of  Section  11(3)  of  the  Kerala  Buildings  (Lease  and  Rent  

Control Act), 1965, which reads:

“Section  11(3):  A  landlord  may  apply  to  the  Rent Control Court for an order directing the  

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tenant to put the landlord in possession of the  building if he bona fide needs the building for  his  own occupation or for  the occupation by  any member of his family dependent on him.

Provided  that  the  Rent  Control  Court  shall not give any such direction if the landlord  has  another  building  of  his  own  in  his  possession  in  the  same  city,  town  or  village  except  where  the  Rent  Control  Court  is  satisfied  that  for  special  reasons,  in  any  particular case it will be just and proper to do  so;

Provided  further  that  the  Rent  Control  Court shall not give any direction to a tenant  to  put  the  landlord  in  possession,  if  such  tenant is  depending for  his livelihood mainly  on  the  income  derived  from  any  trade  or  business carried on in such building and there  is  no other suitable building available in the  locality for such person to carry on such trade  or business:

Provided further that no landlord whose  right  to  recover  possession  arises  under  an  instrument  of  transfer  inter  vivos  shall  be  entitled to apply to be put in possession until  the  expiry  of  one  year  from the  date  of  the  instrument:

Provided further  that  if  a  landlord  after  obtaining  an  order  to  be  put  in  possession  transfer his rights in respect of the building to  another  person,  the  transferee  shall  not  be  entitled  to  be  put  in  possession  unless  he  proves that he bona fide needs the building for  his  own occupation or for  the occupation by  any member of his family dependent on him.”   

9. It  is  not  in  dispute  that  in  the  eviction  petition  the  

owners had pleaded their own requirement for the premises to  

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be  occupied  by  them for  residential  as  well  as  commercial  

purposes.  The  eviction  petition  was  totally  silent  about  the  

requirements  of  any  member  of  the  family  of  the  owners-

petitioners leave alone any member of their family who was  

dependant upon them. That being so the parties went to trial  

before the Rent Controller on the basis of the case pleaded in  

the petition and limited to the requirement of the owners for  

their personal occupation. Neither before the Rent Controller  

nor  before  the  Appellate  Authority  was  it  argued  that  the  

requirement in question was not only the requirement of the  

petitioner-owners of the premises but also the requirement of  

any  other  member  of  their  family  whether  dependant  upon  

them or  otherwise.  Not  only  that,  even in  the  petition  filed  

before  this  Court  the  requirement  pleaded was that  for  the  

deceased-widowed owner of the demised premises and not of  

any member of her family.  Super added to all this is the fact  

that the legal representatives who now claim to be the family  

members  of  the  deceased  are  all  married  daughters  of  the  

deceased  couple  each  one  settled  in  their  respective  

matrimonial homes in different cities and at different places.  

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That  none  of  them  was  dependant  upon  the  deceased-

petitioner is also a fact undisputed before us.  Even otherwise  

in the social milieu to which we are accustomed, daughters  

happily  married  have  their  own  families  and  commitments  

financial  and otherwise.  Such being  the  position  we  find it  

difficult to see how the legal representatives of the deceased-

appellant can be allowed to set up a case which was never set  

up before the Courts below so as to bring forth a requirement  

that  was  never  pleaded  at  any  stage  of  the  proceedings.  

Allowing the legal heirs to do so would amount to permitting  

them to introduce a case which is totally different from the one  

set up before the Rent Controller the Appellate Authority or  

even  the  High  Court.  The  position  may  indeed  have  been  

differentiated if  in the original petition the petitioner-owners  

had pleaded their  own requirement  and the  requirement  of  

any member of their family dependant upon them.  In such a  

case the demise of the original petitioners or any one of them  

may  have  made  little  difference  for  the  person  for  whose  

benefit  and  bona  fide  requirement  the  eviction  was  sought  

could  pursue  the  case  to  prove  and  satisfy  any  such  

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requirement.

10. Confronted  with  the  above  position  Mr.  Vishwanathan  

made in generous submission. He contended that the rights  

and obligations  of  the  parties  get  crystalized  at  the  time of  

institution of the suit so that any subsequent development is  

not  only  inconsequential  but  wholly  irrelevant  for  

determination of the case before this Court. Learned counsel  

sought  to  extend  that  principle  to  the  case  at  hand  in  an  

attempt persuade us to shut out the subsequent event of the  

death of the original petitioners from consideration.  We regret  

to say that  we do not  see any basis  for  the submission so  

vehemently urged before us by Mr. Vishwanathan.  While it is  

true that the right to relief must be judged by reference to the  

date suit or the legal proceedings were instituted, it is equally  

true  that  if  subsequent  to  the  filing  of  the  suit,  certain  

developments take place that have a bearing on the right to  

relief claimed by a party, such subsequent events cannot be  

shut  out  from  consideration.  What  the  Court  in  such  a  

situation is expected to do is to examine the impact of the said  

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subsequent development on the  right  to relief  claimed by a  

party and, if necessary, mould the relief suitably so that the  

same is tailored to the situation that obtains on the date the  

relief is actually granted.  That proposition of law is, in our  

view, fairly settled by the decisions of this Court in Pasupuleti  

Venkateswarlu case (supra).  Krishna Iyer J. (as His Lordship  

then was) has in his concurring judgment lucidly summed up  

legal position in the following words:

“………………..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 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  cognisance  of  events  and  developments  

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subsequent to the institution of the proceeding  provided the rules of fairness to both sides are  scrupulously obeyed………….”

11. To the same effect is the decision of this Court in  Om  

Prakash Gupta’s  case (supra) where the Court declared that  

although the ordinary rule of civil law is that the rights of the  

parties stand crystalised on the date of the institution of the  

suit yet the Court has power to mould the relief in case the  

following three conditions are 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……”  

12. In Hasmat Rai’s case (supra), this Court observed that 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,  

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including the appellate court,  has to examine,  evaluate and  

adjudicate upon the same.   

13. To the same effect is the decision of this Court in  Baba  

Kashinath  Bhinge’s case  (supra)  where  relying  upon  the  

decision in Hasmat Rai’s case (supra) this Court held that in  

a case of bona fide requirement it  is  necessary to establish  

that the landlord needs the premises and the need subsists till  

a decree is passed in his favour. In a case where such need is  

available at the time of the filing of the petition but becomes  

extinct  by the time the matter  attains finality  in appeal  for  

revision no decree will be justified.  For that purpose the Court  

should take all the subsequent events into consideration and  

mould  the  relief  accordingly.  Following  passage  provides  a  

complete answer to the question raised before us:   

“Equally it is settled by this Court in series of  judgments and a reference in this behalf would  be  sufficient  by  citing  Hasmat  Rai v.  Raghu  Nath  Prasad that  in  a  case  of  bona  fide  requirement,  it  is  always  necessary,  till  the  decree of eviction is passed that the landlord  should satisfy that the need is bona fide and  the need subsists. In a case where the need is  available at the time of filing the petition, but  at  the  time  of  granting  decree  it  may  not  continue to subsist, in that event, the decree  

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for  eviction  could  not  be  made.  Similarly  pending appeal or revision or writ petition, the  need  may  become  more  acute.  The  court  should  take  into  account  all  the  subsequent  events to mould the relief. The High Court may  not  be  justified  in  omitting  to  consider  this  aspect of the matter but that does not render  the  judgment  illegal  for  the  subsequent  discussion we are going to make.”

(emphasis supplied)

14. Reference  may  also  be  made  to  Ramesh  Kumar  Vs.  

Kesho Ram (1992 Supp (2) SCC 623) where Venkatachaliah,  

J. (as His Lordship then was) expressed a similar view in the  

following words:

“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.”

15. Similarly, in  Maganlal’s case (supra) all that this Court  

held was that if the litigation keeps extending and number of  

developments sprouting up during the long interregnum, the  

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Court should adopt a pragmatic approach in the matter and  

determine whether or not the development pending finalization  

of the litigation is such as would completely non-suit the party  

concerned. This decision is, in our view, no authority for this  

proposition  that  subsequent  developments  having  material  

impact  on  the  rights  and  obligations  of  the  parties  can  be  

ignored by a Court simply because such rights and obligations  

have to be determined by reference to the date on which the  

litigation was instituted.   

16. The decision of this Court in Kedar Nath Agrawal (dead)  

and Anr.  Vs.  Dhanraji Devi (dead) by LRs. and Anr. (2004  

(8) SCC 76)  has reiterated the legal position after a detailed  

review of the case law on the subject.  That was also a case  

where  two  applicants  seeking  eviction  of  the  tenant  had  

passed away during the pendency of the eviction petition and  

the  question  was  whether  the  three  married  daughters  left  

behind  by  the  couple  could  continue  with  the  same.   This  

Court observed:

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“31. In view of the settled legal position as also  the  decisions  in  Pasupuleti  Venkateswarlu5  and  Hasmat  Rai1,  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…..”   

17. The decisions of this Court in Pratap Rai Tanwani’s case  

(supra), Gaya  Prasad’s  case  (supra),  Kamleshwar  Prasad’s  

case (supra),  Shakuntala Bai’s  case (supra),  G.C. Kapoor’s  

case  (supra),  and  Shantilal  Thakordas  Vs. Chimanlal  

Maganlal  Telwala  (1976  (4)  SCC  417),  Pukhraj  Jain  Vs.  

Padma Kashypa (1990 (2) SCC 431) do not, in our opinion,  

lend  any  support  to  the  proposition  that  subsequent  

developments cannot be noticed by the Court especially when  

such developments have an impact on the right of a party to  

the relief prayed for.  

18. We may in particular refer to the decision of this Court in  

Shantilal Thakordas’s  case (supra) in which this Court had  

overruled the earlier decision rendered in Phool Rani & Ors.  

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Vs. Naubat Rai Ahluwalia (1973 (1) SCC 688) and held that  

the  law  permitted  the  eviction  of  the  tenant  for  the  

requirement of the landlord for occupation of the landlord as  

residence for himself and members of his family and that such  

a requirement was both of the landlord and the members of  

his family so that upon the death of this landlord the right to  

sue survived to the members of  the family of  the deceased.  

That is not the position in the instant case. As noticed earlier,  

the requirement pleaded in the eviction petition by the original  

petitioners was their own personal requirement and not the  

requirement of the members of their family whether dependant  

or  otherwise.  Indeed  if  the  deceased  landlords  had  any  

dependant  member  of  the  family  we  may have  even in  the  

absence of a pleading assumed that the requirement pleaded  

extended also to the dependant member of their family. That  

unfortunately, for the appellants is neither the case set up nor  

the position on facts. The deceased couple did not have any  

dependant member of the family for whose benefit they could  

have  sought  eviction  on  the  ground  that  she  required  the  

premises for personal occupation.   

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19. In the light of what we have stated above, we have no  

hesitation in holding that on the death of the petitioners in the  

original  eviction  petition  their  right  to  seek  eviction  on  the  

ground  of  personal  requirement  for  the  demised  premises  

became extinct and no order could on the basis of any such  

requirement be passed at this point of time.    

20. There is one other aspect to which we must advert at this  

stage.  The  High  Court  had,  while  disposing  of  the  revision  

petition  filed  before  it,  come  to  the  conclusion  that  the  

demised premises is large and located in a popular commercial  

area of the city of Cochin. It has found that the rent for the  

premises was very low and had not been revised since the year  

1973.   The  High  Court  accordingly  revised  the  rent  to  

Rs.10,000/-  per  month  payable  w.e.f.  1.11.2003  onwards  

leaving it open to the parties to get the fair rent determined for  

the demised premises.   

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21. During the pendency of this appeal, the appellants had  

filed an application seeking a direction against the respondent  

for payment of rent @ Rs.50,000/- per month.  The application  

supported by an affidavit,  inter-alia,  alleges that the market  

rent of the premises in question was not less than Rs.50,000/-  

per month as in September 2005 when the application was  

filed. A Valuation Certificate issued by Shri K. Radhakrishnan  

Nair, Chartered Engineer & Approved Valuer, is also enclosed  

with the application, according to which the market value of  

the plot in question was not less than Rs.7,00,000/- per cent  

and the current  market  rent for  the  building not  less  than  

Rs.8/- per square feet.   As per the lease deed entered between  

the  deceased  owners  and  the  respondents,  the  premises  in  

question  is  constructed  over  an  area  measuring  about  20  

cents. The covered area is said to be 5000 sq. ft. or so. In the  

circumstances while the High Court was justified in tentatively  

revising the rent for the premises, the revision was not, in our  

opinion,  adequate.  Keeping  in  view  the  totality  of  the  

circumstances, we are of the view that instead of Rs.10,000/-  

determined  by  the  High  Court,  the  respondents  shall  pay  

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Rs.15,000/-  per  month towards rent w.e.f.  1.11.2003.   The  

same  shall  stand  revised  to  Rs.25,000/-  per  month  w.e.f.  

1.1.2009.  The  differential  amount  thus  payable  shall  be  

deposited by the respondents before the Rent Controller within  

six months from today whereupon the Rent Controller  shall  

take steps to disburse the same to the appellants, the current  

owners  of  the  premises.  Needless  to  say  that  the  revision  

ordered  by  us  is  also  tentative  and  shall  not  prevent  the  

parties  from  seeking  determination  of  the  fair  rent  for  the  

premises  by  instituting  proceedings  before  the  competent  

Court/authority in accordance with law.   

22. With the above modification, this appeal is disposed of  

leaving the parties to bear their own costs.  

……………………………J. (MARKANDEY KATJU)

……………………………J. (T.S. THAKUR)

New Delhi February 17, 2010

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