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PETITIONER: KAMLESHWAR PRASAD

       Vs.

RESPONDENT: PRADUMANJU AGRAWAL (DEAD) BY LRS....

DATE OF JUDGMENT:       02/04/1997

BENCH: K. RAMASWAMY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T PATTANAIK, J.      leave granted.      This appeal  by special  leave to  appeal  is  directed against the  judgment dated  17.2.1997 of the Allahabad High Court dismissing  the writ  petition filed by the appellant. The respondent  landlord field   a  petition for eviction to the appellant under Section 21(1)(a) of the U.P. Act XIII of 1972 inter  alia on the ground at the bona fide requires the premises for  carrying on  his own  business and  he has  no other means  of livelihood.  The tenant  -  appellant  filed objections before  the prescribed authority stating there in that the  application for  eviction has  been filed on false and baseless  allegation and in fact the respondent does not need the  premises bona  fide for starting his own business. The prescribed  authority on  consideration of the materials on record  came to the conclusion that the landlord does not require the  premises for  his own  use bonafide.  The  said prescribed authority  also came  to the  conclusion that the tenant would  be comparatively  harrassed  if  an  order  of eviction for  eviction having  been rejected,  the  landlord preferred an  appeal. The appellate authority re-appreciated the entire evidence on record and reversed the conclusion of the prescribed  authority. The said appellate authority came to the conclusion that in the facts and circumstances to the case of  the requirement  of the  landlord to  start a cloth bushiness must  be a  bona fide requirement entitling him to get an  order of eviction under Section 21(1)(a) of the Act. The appellate  authority, therefore,  set aside the order of the  prescribed  authority  and  directed  eviction  of  the appellant. Being  aggrieved by  the order  of the  appellate authority, the  tenant carried  the matter to the High Court by filing  a writ  petition. During the pendency of the writ petition in  the  High  Court  the  landlord  died  and  was substituted by  his legal  heirs namely  his widow, two sons and the  married daughter.  On behalf  of the tenant, it was urged before  the High  Court that the landlord having died, the bona fide requirement which was found to have existed by the appellate  authority no  more survives,  and  therefore, taking into  consideration the  subsequent  event  the  High

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Court must  quash  the  order  of  eviction  passed  by  the appellate authority.  On  behalf  of  the  landlord  it  was contended that  the order  of the appellate authority in the eviction proceeding,  is a  decree  and  the  decree  having become final,  In a  proceeding under  Article  226  of  the Constitution, the  High Court  will not  be entitled to take into consideration any subsequent event that had occured and no that score it would not be appropriate for the High Court to  interfere  with  the  decree  passed  by  the  appellate authority. It  was also  contended that  the requirement  in question must  exist on the day the application for eviction was filed  and the  same requirement having been found to be established by  the competent  forum who  was required to go into the  said question,  it is  no longer  open to the High Court to  interfere with the said finding in exercise of its supervisory  jurisdiction   under   Article   226   of   the Constitution. The  High Court  by the impugned judgment came the conclusion that the decree for eviction has become final and the said finality cannot be disturbed on the application under Article 226 of the Constitution by taking into account the  facts  that  the  original  landlord  died  during  the pendency of the writ petition.      Mr. Manoj  Swarup, learned  counsel appearing  for  the appellant in this Court urged that the person for whose bona fide requirement  the order  of eviction  has been passed by the appellate  authority having  died during the pendency of the writ  petition. The  said bonafide requirement no longer subsists and  consequently the  High Court should have taken that fact into consideration and should have interfered with the order passed by the appellate authority for the eviction of the  tenant. The  learned counsel   further urged that no doubt the  proceedings under Article 226 of the Constitution is not  a continuation of the eviction proceedings under the Act, but  all the  same the  High Court while exercising its power of  supervisions under Article 226 of the Constitution is not  denuded of  its power to take into consideration the subsequent event  that had happened which is necessary to be taken  into   consideration  in  the  interest  of  justice. Accordingly, The  High Court  committed serious error in not taking into  account the  facts of the death of the landlord for whose  bona fide  requirement the  order of eviction had been passed  by the appellate authority, and therefore, this Court should  interfere with  the said  order  of  the  High Court.  Having   given  and  anxious  consideration  to  the contention raised  by the  learned counsel for the appellant and under the facts and circumstances of this case we are of the considered  opinion that  this case  does not  warranted interference  by   this  Court  under  Article  136  of  the constitution. Under  the Act  the  order  of  the  appellate authority is  final and  the said  order is  a decree of the civil court  and decree  to a  competent Court having become final cannot  be  interfered  with  by  the  High  Court  in exercise of  its power  of superintendence under Article 226 and 227  of the  Constitution by  taking  into  account  any subsequent event  which might have happened. That apart, the fact that  the landlord  needed the premises is question for starting a  bushiness which  fact  has  been  found  by  the appellate authority.  In eye  of law, it must be that on the day of  application for  eviction which is the crucial date, the tenant  incurred the liability of being evicted from the premises. Even  if the  landlord died during the pendency of the Writ  petition in  the High  Court the  bona  fide  need cannot be  said to  have lapsed  as the business in question can be  carried on  by his  widow or  any elder son. In this view to  the matter,  we find  no force in the contention of

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Mr,  Manoj   Swarup,  learned   counsel  appearing  for  the appellant and  we do  not find  any error  in  the  impugned judgment  of  the  High  Court  under  Article  136  of  the Constitution.  The   appeal,  accordingly,   fails  and   is dismissed but  in the  circumstances without any order as to costs.