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PETITIONER: M.M. QUASIM

       Vs.

RESPONDENT: MANOHAR LAL SHARMA & ORS.

DATE OF JUDGMENT07/04/1981

BENCH: DESAI, D.A. BENCH: DESAI, D.A. PATHAK, R.S. VENKATARAMIAH, E.S. (J)

CITATION:  1981 AIR 1113            1981 SCR  (3) 367  1981 SCC  (3)  36        1981 SCALE  (1)747  CITATOR INFO :  D          1988 SC 411  (2,4)

ACT:      Bihar Buildings  (Lease, Rent and Eviction) Control Act 1947-Ss. 2(d), 11(1)(c) Expln. and 11(1)(d)-Landlord-Meaning of-Suit  for  eviction  of  tenant  on  ground  of  bonafide personal requirement  and default-Partition of properties of landlord-Suit property  allotted to  a person not a party to the  eviction   proceedings-Whether  landlord   entitled  to maintain and continue eviction proceedings.      Interpretation of Statutes-Administration of Rent Acts- Courts to bear in mind object and intendment of legislature.      Words  and  Phrases-Landlord-Meaning  of-Ss.  2(d)  and 11(1) (c)  Expln. Bihar Buildings (Lease, Rent and Eviction) Control Act. 1947.

HEADNOTE:      Respondents  1   and  2   are  the  brother’s  sons  of Respondent No.  3. These respondents commenced an action for ejectment  of  the  appellant  from  a  shop  under  section 11(1)(c) &  (d) of  the Bihar  Buildings  (Lease,  Rent  and Eviction) Control  Act, 1947,  alleging that the respondents in good faith required possession of the shop for opening an office and a clinic by the first respondent who had become a qualified medical  practitioner, and  that there was default in payment  of rent  for  a  period  of  three  months  i.e. September,  October   and  November,   1972.  The  appellant contested the  suit for  eviction contending that he did not commit default  in payment  of rent for the three months and that the same was paid but no receipt was passed and that as the respondents  were avoiding  the statutory  liability  of passing the  receipt  acknowledging  payment  of  rent,  the appellant was  forced to  send the  rent by money-order from December, 1972  and he  sent the same month after month, and therefore, he  could not  be dubbed  a defaulter. The ground for personal  requirement was  controverted contending  that the property  belonged to  a firm,  and therefore,  the same cannot be  claimed for  the use  of any  one partner for his business other than the business of the firm. It was further contended that the respondents also owned a number of houses and their requirement for Respondent No. 1 was incorrect and

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unwarranted.      The Trial  Court held against the appellant both on the question  of   default  in  payment  of  rent  and  personal requirement and ordered eviction.      The appellant  preferred an  appeal and when the appeal was pending  before the  appellate authority,  he  moved  an application under  Order 41,  Rule 27  of the  Code of Civil Procedure contending  that there had been a partition of the properties amongst the members of the firm and the suit shop had been allotted 368 to one  ’P’ who  was neither  a plaintiff nor a party to the proceedings and  if the shop belonged to him as an exclusive owner, the respondents and especially respondent No. 1 could not seek to evict the appellant for his personal requirement of the  suit shop.  The appellate  judge  holding  that  the respondents were  accepted by the appellant as the landlords of the  suit shop, the subsequent partition decree would not help the  appellant and  agreeing with  the finding  of  the Trial Court  that there was default in payment of rent for a period of three months, he dismissed the appeal.      The second  appeal to  the High  Court by the appellant was dismissed,  holding that the appellant had not moved the first appellate  court with a proper application under order 41, rule  27 of the Code of Civil Procedure and as there was no such application on the record of the case the contention could not  be entertained,  and that  the appellant  did not challenge the  finding of  the courts  on  the  question  of default in payment of rent.      In the appeal to this Court, it was contended on behalf of the  appellant tenant  that: (1)  the High  Court was  in error in  rejecting the contention of the appellant that the ground of  personal requirement was no more available to the respondents in view of the partition decree because not only the landlord  must prove his requirement at the commencement of the  action but  the landlord  for whose  requirement the action is commenced must show that his requirement continues throughout the  course of  proceedings and  that  he  had  a subsisting interest  in the  premises of which possession is sought for  his own  use, (2) the High Court was in error in observing that  in the absence of a proper application under order  41,  rule  27  the  Court  could  not  entertain  the contention thereby sought to be raised, and that the finding that the  appellant was  in default in payment of rent for a period of two months was not questioned before it.      Allowing the appeal, ^      HELD: 1.  The decree  of the  High Court  and the first appellate court  are set  aside and the case remanded to the first appellate  court, which after granting the application under order  41, rule  27, and  taking the certified copy of the decree  in the partition suit on record and after giving an  opportunity  to  the  parties  to  lead  any  additional evidence  should   decide,  whether   the  partition  decree transfers the  suit shop  to ’P’ exclusively and whether the respondents can  maintain the  action and  are  entitled  to evict the appellant on the ground of personal requirement of respondent No. 1 and or on the ground of default. [385 G-386 B]      2. The  expression ’landlord’ which has been defined in section 2(d)  of the  Rent Act  is an  inclusive  definition couched in  very wide  language. This  wide amplitude of the expression has  however been  cut down  by  the  explanation appended to sub-clause (c) of sub-section (1) of section 11. The  person   claiming  possession  on  the  ground  of  his

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reasonable requirement of the leased building must show that he is  a landlord  in the  sense that he is the owner of the building and  has a  right to  occupy the  same in  his  own right. A  mere rent collector, though may be included in the expression landlord  in its wide amplitude cannot be treated as landlord for the purposes of section 11(1)(c). [376 G-378 B] 369      3. The  legislature by  restricting the  meaning of the expression ’landlord’  for the  purpose of Section 11(1)(c), manifested its  intention namely that landlord alone can sue for eviction on the ground of his personal requirement if he is one who has a right against the whole world to occupy the building himself  and exclude any one holding a title lesser than his  own. Such  landlord who  is an owner and who would have a  right to  occupy the  building in his own right, can seek possession  for his  own use.  A rent  collector or  an agent is  not entitled to occupy the house in his own right. Even if such a person be a lessor and, therefore, a landlord within the  expanded inclusive  definition of the expression landlord, nonetheless  he cannot seek to evict the tenant on the ground  that he wants to personally occupy the house. He cannot claim  such a  right against  the real owner and as a necessary corollary  he cannot  seek to  evict the tenant on the ground  that he wants possession of the premises for his own occupation. [378 C, G]      In the  instant case  the  application  for  additional evidence was  filed after  the arguments were concluded. The Judge had  no objection in treating it to be one under Or 41 rule 27,  took it  on record  and examined it on merits. The High Court  was clearly in error in ignoring the evidence in second appeal  on a  technical consideration  that a  proper application under  order 41,  rule 27, was not placed before the first appellate court. [373 F, 374 C, 375 A-B]      In the  instant case,  there was  a proper  and regular application to  meet with the requirements of order 41, rule 27,  CPC   for  additional  evidence  inviting  the  court’s attention to  a subsequent event of vital importance cutting at the root of the plaintiff’s right to continue the action. Coupled with  it, there  was  evidence  in  the  form  of  a certified copy  of the  decree in  a partition  suit showing that the respondents even if they had some shade of title to commence action,  they  having  lost  all  interest  in  the property and  the property  having become  one of  exclusive ownership of a person not a party to the proceedings were no more entitled  to continue  the proceedings  for  their  own benefit. Both  the lower  appellate court and the High Court were clearly  in error  in  ignoring  this  vital  piece  of evidence which  goes to  the root  of the  matter and  which would non-suit the respondents. [381 C, G]      Pasupuleti  Venkateswarlu   v.  The   Motor  &  General Traders, [1975]  3 S.C.R.  958 and Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhri, [1940] F.C.R. 85, referred to.      4. The  time honoured notion that the right of re-entry is unfettered  and that the owner landlord is the sold judge of his  requirement has  been made  to yield to the needs of the society  which had  to enact  the Rent Acts specifically devised to  curb and  fetter the  unrestricted right  of re- entry and  to provide  that only  on proving  some  enabling grounds set  out in  the rent Act the landlord can re-enter. One such ground is of personal requirement of landlord. When examining a  case of  personal requirement, if it is pointed out that  there is  some vacant  premises with  the landlord which he can conveniently occupy, the element of need in his requirement would be absent. To reject this aspect by saying

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that the  landlord has  an unfettered  right to  choose  the premises is  to negative the very raison de’etre of the Rent Act. If it is shown by the tenant that the landlord has some other vacant  premises in his possession, that by itself may not be  sufficient to  negative the  landlord’s claim but in such a  situation the  court would  expect the  landlord  to establish that the premises which is vacant is not suitable 370 for the  purpose of  his occupation  or for  the purpose for which he  requires the  premises in  respect  of  which  the action is  commenced in  the Court. To say that the landlord has an unfettered right to choose whatever premises he wants and that  too irrespective  of the  fact that  he  has  some vacant premises  in possession which he would not occupy and try to seek to remove the tenant would be unsupported by the Rent  Act.   This  approach  would  put  a  premium  on  the landlord’s greed  to throw  out tenants paying lower rent in the name of personal occupation and rent out the premises in his possession  at  the  market  rate.  To  curb  this  very tendency the  Rent  Act  was  enacted,  and,  therefore,  it becomes the  duty of the Court administering the Rent Act to bear in mind the object and intendment of the legislature in enacting the  same. The Court must understand and appreciate the  relationship   between  legal  rules  and  one  of  the necessities of life-shelter. [383 C-384 A]      In the  instant case  there are  some recitals  in  the judgment of  the High  Court which  show  (i)  that  certain aspects have  been disposed of cursorily, lacking precision, and (ii)  that a  tenant  who  examined  as  many  as  eight witnesses including  himself to prove that the rent was paid and who  specifically pleaded  that fact  in  reply  to  the notice served  by the  landlords and who meticulously fought his case,  by making  an application for additional evidence at the  appellate stage would not give up the contention and if he had in fact given it up there was no justification for still taking the matter to the highest court. The subsequent event of partition of the properties have a direct impact on the title of the landlord-respondents to evict the appellant on the  ground of  non-payment of rent. A remand of the case is therefore inevitable. [384 G-385 B, G]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 758 of 1978.      Appeal by  Special Leave  from the  Judgment and  Order Decree dated  5.10.1977 of  the  Patna  High  Court  (Ranchi Bench) Ranchi  in Appeal  from Appellate  Decree No.  204 of 1976 (R).      R.K. Garg,  V.J. Francis,  D.K. Garg  and S.K. Jain for the Appellant.      Sarjoo Prasad.  S.N. Misra  and A.N.  Bardiyar for  the Respondents.      The Judgment of the Court was delivered by      DESAI, J. A tenant under a decree of eviction questions its correctness in this appeal by special leave.      Respondents  1   and  2   are  the  brother’s  sons  of respondent 3  Kishorilal Vishwakarma.  Respondents commenced an action  for ejectment  of the  appellant under section 11 (2)(c) & (d) of the Bihar Buildings (Lease, Rent & Eviction) Control Act. 1947 (’Rent Act’ for short) from a shop forming part of  holding No.  188 of  Ward No.  3 within the area of Giridih municipality in Bihar State. 371

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Claim for  possession was founded on the ground mentioned in s. 11  (1) (c)  alleging that  the respondents in good faith required possession  of the shop for opening an office and a clinic by first respondent Manoharlal Sharma who by then had become a  qualified  medical  practitioner  having  obtained M.B.B.S. degree.  The additional  ground on  which the claim rested was the usual one of default in payment of rent for a period of two months and more as envisaged by s. 11 (1) (d). Default complained of was failure to pay rent for the months of September, October and November, 1972.      Appellant contested  the suit,  inter alia,  contending that he  did not  commit default  in payment of rent for the months of  September, October  and November,  1972, and that the same  was paid but no receipt was passed and that as the respondents were avoiding statutory liability of passing the receipt acknowledging  payment of  rent  the  appellant  was forced to  send the  rent by  Money Order from December 1972 and he  sent the  same month after month, and, therefore, he could not  be dubbed  a defaulter  within the  meaning of s. 11(1) (d). Controverting the ground of personal requirement, the appellant contended that the property belonged to a firm and, therefore,  the same  cannot be  claimed for the use of any one  partner for his business other than the business of the firm.  And in  any case,  the respondents have number of houses in  their possession  and the  requirement alleged on behalf of Manoharlal Sharma was incorrect and unwarranted.      The learned  trial judge framed as many as nine issues. He held  against the  appellant  both  on  the  question  of default in  payment of rent and the personal requirement and after  answering  some  technical  defences  raised  by  the appellant,  learned   trial  judge  decreed  the  suit.  The appellant preferred  an appeal  to the  appellate authority. When the  appeal  was  pending  before  the  learned  Second Additional Subordinate  Judge, Giridih,  the appellant filed an application  supported by  an affidavit  on September 28, 1976, purporting  to be  under order  41, rule  27, Code  of Civil  Procedure   contending  therein  that  as  originally contended by  him the shop belongs to a firm and in Suit No. 4 of  1974 there  has been  a partition  of  the  properties amongst the  members of  the firm and the suit shop has been allotted to  one Pyarelal,  who is neither a plaintiff nor a party to  the proceedings  and if  the shop  now belongs  to Pyarelal  as   an  exclusive   owner,  the  respondents  and especially respondent  1 Manohar  Lal Sharma  cannot seek to evict the appellant for his personal requirement of the suit shop. This application was filed 372 with an  affidavit drawn  at the  foot  of  the  application itself.  The   learned  appellate  judge  referred  to  this application in  paragraph 12  of his  judgment and negatived the contention  therein raised  observing that  allotment of the suit shop to Pyarelal has taken place after the suit was filed and  that as  earlier the respondents were accepted by the appellant  as  the  landlords  of  the  suit  shop,  the subsequent partition decree would not help the appellant. He then made  a cryptic  observation that  ’in any  view of the matter the  finding of the learned Munsif regarding personal necessity  is   correct  and   there  is   no   ground   for interference.’ He agreed with the finding of the trial Court that there  was default  in payment  of rent for a period of three months,  and, therefore,  also  the  respondents  were entitled to a decree for eviction on the ground mentioned in s. 11  (1) (d) of the Rent Act. Accordingly he dismissed the appeal with costs.      A second  appeal to  the High  Court by  the tenant met

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with the  same fate.  It is, however, advantageous to notice the approach of the High Court to the two contentions raised on behalf  of the  appellant. The  contention of  the tenant that the  ground for  personal requirement  of respondent  1 Manoharlal  Sharma  no  more  survives  because  he  has  no subsisting  interest  in  the  suit  shop  in  view  of  the partition decree  in  Suit  No.  4  of  1974  was  negatived observing  that  the  appellant  had  not  moved  the  first appellate court  with a  proper application  under order 41, rule 27  of the  Code of Civil Procedure and as there was no such application  on the  record of  the case the contention could not  be entertained.  Alternatively,  the  High  Court found it  difficult to accept the contention that during the pendency of the appeal if the house in question was allotted to the  share of  one of  the co-sharers of the decree (sic) the decree  which had  been passed  in their  favour becomes nullity and is liable to be set aside by the appellate court on this  ground alone. Relevant to the second contention the High Court observed that the appellant did not challenge the finding of  the two  courts below on the question of default in payment of rent. Accordingly the High Court dismissed the second appeal with costs. Hence this appeal.      Learned counsel  for the  appellant canvassed  the same two contentions before us which were pressed before the High Court. It  was contended  that the High Court was clearly in error in  rejecting the contention of the appellant that the ground of  personal requirement was no more available to the respondents in view of the partition decree in Suit No. 4 of 1974  because   not  only   the  landlord   must  prove  his requirement at the commencement of the action but 373 the landlord  for whose  requirement the action is commenced must show  that his  requirement  continues  throughout  the course of  proceedings and that he has a subsisting interest in the  premises of  which possession  is sought for his own use. Reliance  was placed  in support  of this submission on Pasupuleti Venkateswarlu  v. The Motor & General Traders. It was also  contended that  the High  Court was  in  error  in observing that  in the absence of a proper application under order  41,  rule  27  the  court  could  not  entertain  the contention  thereby   sought  to  be  raised.  It  was  also contended that the High Court was in error in observing that the finding  that the appellant was in default in payment of rent for  a period  of two  months was not questioned before it.      Respondents 1  and 2  are the  sons  of  one  Sunderlal Sharma. Respondent 3 is the brother of Sunderlal Sharma. One Pyarelal  is   also  a   brother  of  Sunderlal  Sharma  and Respondent 3 and thus an uncle of respondents 1 and 2. These facts have become very relevant for evaluating and disposing of the contention canvassed before us.      Action for  ejectment was  filed by respondents 1 and 2 Manoharlal  Sharma  and  Motilal  Sharma  sons  of  deceased Sunderlal Sharma,  and respondent  3 Kishorilal Vishwakarma, brother of  Sunderlal Sharma,  inter alia, stating that they are the  owners of  the suit  shop and  are  thus  landlords within the  meaning  of  Rent  Act  and  that  they  require possession of  the suit premises, firstly on the ground that Manoharlal Sharma  wants to open his clinic in the suit shop and  secondly,  that  the  appellant  tenant  has  committed default in  payment of  rent for  a period of two months and more.      At  the   first  appellate  stage  appellant  filed  an application, in  the cause  title of  which it  is mentioned that it  is an  application purporting  to be under order 41

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rule 27,  C.P.C. and  at the  foot of  it there  is a  sworn affidavit with reference to the contents of the application. In this application it has been in terms stated that in suit No.  4   of  1974   (Kishorilal  Vishwakarma   v.   Pyarelal Vishwakarma) for  partition of  the assets of the firm there has been  a compromise  on August  16, 1974, and that by the partition effected  by the  decree the  suit shop  has  been allotted to  Pyarelal and  thereby he  became the  owner and landlord of  the suit  shop with  reference to the appellant and as he is neither a party to the 374 suit nor has he applied to be joined as a party to the suit, the present  respondents have  no subsisting interest in the property and, therefore, a decree for eviction on any of the grounds mentioned  in the  Rent Act  could not  be passed in their favour.  He requested  for setting aside the decree on this ground.  It was  further stated in the application that this fact  being in the special knowledge of the respondents did  not   come  to  the  knowledge  of  the  appellant  and notwithstanding the  exercise of due diligence such evidence was not within his knowledge or could not after the exercise of due  diligence be  produced by  him, and,  therefore,  he sought to  produce this additional evidence at the appellate stage. A  request was  made to  accept the certified copy of the partition  decree evidencing  the fact  alleged  in  the application. The  learned appellate judge did not find fault either with  the form  of the application or compliance with the technical  requirement of  order 41,  rule 27, or in any delay  in   moving  the  court  for  taking  on  record  the additional  evidence,   The  learned   judge  of  the  first appellate court  disposed of  the contention  raised in  the application on  merits as would be evident from paragraph 12 of his judgment. Not to confound the issue on this point any more, the  observation of  the learned  judge of  the  first appellate court may be extracted;           "After the argument was heard, the deft. appellant      has filed  the certified  copy of the compromise decree      of P.s  4 of  1974 (page  10 begins)  Relying  on  this      decree it  has been  alleged that the house in question      has now  been allotted to one Pyarelal who is not party      to this  suit. So,  now, the puffs have no concern with      the suit  house.  This  event  had  taken  place  after      passing of  the decree.  If Pyarelal was co-sharer then      other co-sharer  is competent  to file a suit on behalf      of the  other. From  the notice  reply ext.  1 it  will      appear that  ownership of  the puffs respondent of T.S.      47/73 was  accepted. Once  they have  accepted that the      plaintiffs are  the owner  now the  defendant appellant      can not  say that  the puffs  are not  the owner of the      suit premises.  This partition decree will not help the      defendant to say that the puff do not require the house      now ?  In execution  of that partition decree, also the      vacant possession  will be required. So, in any view of      the matter  I find  that the  findings of  the matter I      find that the findings of the learned Munsif, regarding      the personal  necessity is  correct and there is ground      for  interference.   The  learned  Munsif  has  rightly      appreciated the  evidence and  has come  to the correct      findings." 375      It would  unquestionably appear  that the learned judge entertained the application for additional evidence, took it on record and examined it on merits.      In this  background, in our opinion, the High Court was clearly in  error in ignoring this evidence in second appeal

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on a technical consideration that a proper application under order 41,  r. 27  was not  placed before the first appellate court. Here is what the High Court says:           "Whenever  any  additional  evidence  is  produced      before an  appellate court  a regular application under      order 41,  rule 27  of the  Code of  Civil Procedure is      filed. There  is no  such application in the records of      the case." Obviously, this  is contrary  to record.  But the High Court appeared to  be in  two minds when it proceeded to entertain the contention  on merits  and negatived  it on merits. Says the High Court further on this point as under:           "Apart from  that, it  is difficult  to accept the      contention that  during the  pendency of  the appeal if      the house  in question  is allotted to the share of one      of the  co-sharers of  the decree, the decree which had      been passed  in their  favour becomes  nullity  and  is      liable to  be set  aside by the appellate court on this      ground alone.  This aspect  of  the  matter  has  (sic)      considered on several occasions by this Court where the      plaintiff, during the pendency of the suit has assigned      his interest. Even in those cases it has been held that      by mere  assignment the  plaintiff does  not  lose  the      right to  maintain the  suit. In  my view, the position      will be all the more difficult for the defendant if any      such objection is taken for the first time in the court      of appeal."      What precedents  are relied upon by the High Court when it says  that the aspect required to be considered by it has been examined  on a  number of  occasions left  us  guessing because there  is  no  citation  in  the  judgment.  If  the precedent relied  upon was  quoted in  the judgment we could have  profitably  examined  the  precedent  itself.  In  the absence of  it the  contention being  a pure question of law will have to be examined on its own merits.      The procedural  conundrum may  be cleared  out  at  the threshold.  Was   there  a  proper  application  before  the appellate court under 376 order 41,  rule 27.  It must be answered in the affirmative. The application Annexure II page 36 of the record recites in its title as: ’Petition under order 41, rule 27 of the Civil Procedure Code’. It is founded on an affidavit. It is a well recognised practice commonly adopted in courts that where an application is  required to be supported by an affidavit the application is  drawn up  and at the foot of it an affidavit is sworn.  Even  taking  the  most  technical  view  of  the requirement  of   order  41,   r.27,  C.P.C.   the  petition purporting to  be under  order 41  rule 27  meets  with  the requirement of  the situation.  The contention  of delay  in moving the  application will  be presently  examined but the High Court  could not have rejected the contention raised by the appellant  on the ground that a proper application under order 41,  rule 27,  is not  to be  found on record. To some extent this  observation would  indicate that  the record of the case  was not  examined  with  the  thoroughness  as  is expected in  disposing of  the appeal.  In fact,  the  first appellate court whose grievance was that the application was filed  after  the  arguments  were  concluded,  has  had  no objection in  treating the application to be one under order 41, rule 27. It has been so treated and has been disposed of on merits  as per  the passage  from the  judgment extracted hereinbefore. The  High Court,  therefore, was  squarely  in error in  rejecting the contention on the narrow ground that there was no proper application under order 41, rule 27.

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    Now, probing  the merits  of the  contention, the first thing that  stares in  the face  is whether  where a suit is filed by a person claiming to be landlord on the ground that he in  good faith requires the suit premises for his own use and occupation,  would he  still be entitled to a decree for possession on  this ground  even if  during  the  course  of proceedings his interest in the suit premises has come to an end and on the date of the final decree he had no subsisting interest in  the suit  premises? In  other words, how should the Court  approach a  proceeding under  the Rent  Act while taking into  consideration the subsequent events which would non-suit the plaintiff?      The expression  ’landlord’ has been defined in s. 2 (d) of the Rent Act which reads as under:           "landlord" includes  the persons  who for the time      being is receiving, or is entitled to receive, the rent      of a  building whether  on his own account or on behalf      of another,  or on  account or  on behalf  or  for  the      benefit, or himself and others or as an agent, trustee,      executor, administrator, 377      receiver or  guardian or who would so receive the rent,      or be entitled to receive the rent if the building were      let to a tenant." The inclusive  definition is  couched in very wide language. However this  wide amplitude  of the expression has been cut down by  the explanation  appended to sub-clause (c) of sub- section (1) of s. 11 which reads a under:      11.  Eviction of tenants:           (a)  Notwithstanding  anything  contained  in  any                contract or  law to  the contrary but subject                to the  provisions of  the Industrial Dispute                Act, 1947 and to those of section 12, where a                tenant is  in possession  of any building, he                shall not  be liable  to eviction  there-from                except in execution of a decree passed by the                Court  on   one  or  more  of  the  following                grounds;-                ...                  ...                ...           (c)  Where the  building is reasonably and in good                faith required  by the  landlord for  his own                occupation  or  for  the  occupation  of  any                person for whose benefit the building is held                by the landlord;                     Provided that  where  the  Court  thinks                that  the   reasonable  requirement  of  such                occupation may  be substantially satisfied by                evicting the  tenant from  a part only of the                building and  allowing the tenant to continue                occupation of  the rest and the tenant agrees                to such  occupation the  Court shall  pass  a                decree accordingly,  and fix  proportionately                fair rent  for the  portion in  occupation of                the tenant,  which portion  shall thenceforth                constitute the building within the meaning of                clause (aa)  of section  2, and  the rent  so                fixed shall  be deemed  to be  the fair  rent                fixed under section 5;                     Explanation: In  this  clause  the  word                "landlord"  shall   not  include   an   agent                referred to in clause (d) of section 2." Therefore, while  taking advantage of the enabling provision enacted in  s.11 (1)  (c), the person claiming possession on the ground of 378

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his reasonable  requirement of the leased building must show that he  is a  landlord in the sense that he is owner of the building and  has a  right to  occupy the  same in  his  own right. A  mere rent collector, though may be included in the expression landlord  in its wide amplitude cannot be treated as a  landlord for  the purposes  of s.  11  (1)  (c).  This becomes manifestly  clear from  the explanation  appended to the sub-section.  By restricting  the meaning  of expression landlord  for   the  purpose   of  section   11(1)(c),   the legislature manifested  its intention  namely that  landlord alone can  seek eviction  on  the  ground  of  his  personal requirement if  he is  one who has a right against the whole world to  occupy the  building himself  and exclude  any one holding a title lesser than his own. Such landlord who is an owner and  who would  have a right to occupy the building in his own  right, can  seek possession  for his  own use.  The latter part  of the  section envisages a situation where the landlord is  holding the  buildings for  the benefit of some other person  but in  that case  landlord can  seek to evict tenant not  for  his  personal  use  but  for  the  personal requirement of  that person  for whose  benefit he holds the building. The  second clause  contemplates  a  situation  of trustees and  cesti que  trust but when the case is governed by the  first part  of sub  clause (c) of sub-section (1) of s.11,  the   person   claiming   possession   for   personal requirement must be such a landlord who wants possession for his own  occupation and  this would  imply that he must be a person who  has a  right to remain in occupation against the whole world  and not  someone who has no subsisting interest in the  property and  is merely  a rent collector such as an agent,  executor,   administrator  or   a  receiver  of  the property. For  the purposes  of s.  11(1)(c) the  expression landlord could, therefore, mean a person who is the owner of the building and who has a right to remain in occupation and actual possession  of  the  building  to  the  exclusion  of everyone else. It is such a person who can seek to evict the tenant on  the ground  that he  requires possession  in good faith for  his own  occupation. A rent collector or an agent is not  entitled to  occupy the house in his own right. Even if such  a person  be a  lessor and,  therefore, a  landlord within the  expanded inclusive  definition of the expression landlord, nonetheless  he cannot seek to evict the tenant on the ground  that he wants to personally occupy the house. He cannot claim  such a  right against  the real owner and as a necessary corollary  he cannot  seek to  evict the tenant on the ground  that he wants possession of the premises for his own  occupation.   That   can   be   the   only   reasonable interpretation one  can put on the ingredients of sub-clause (c) of  s. 11(1)  which reads: "Where building is reasonably and in good faith required by the landlord 379 for his  own occupation..  ". Assuming  that the  expression ’landlord’ has to be understood with the same connotation as is spelt out by the definition clause, even a rent collector or a  receiver of  the property  appointed by  the Court  in bankruptcy proceedings  would be  able to  evict the  tenant alleging that  wants the  building for his own occupation, a right which  he could  not have  claimed  against  the  real owner. Therefore,  the explanation  to clause (d) which cuts down the  wide amplitude  of the expression ’landlord’ would unmistakably show  that for  the purposes of clause (c) such landlord who  in the  sense in  which the  word  ’owner’  is understood can  claim  as  of  right  to  the  exclusion  of everyone, to  occupy the  house, would  be entitled to evict the tenant for his own occupation.

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    The next  step to  be taken  is whether  where a person claiming to  be such  a landlord  has sought  to  evict  the tenant for  his own  occupation of the building but lost his interest in  entirety in the building during the pendency of the appeal  which is  a continuation  of the  suit. Would he still be  entitled to  maintain or continue the action after the cessation  or extinguishment  of  his  interest  in  the building? To  examine this  contention on merits one feature of the  proceedings under  the Rent  Act may  be taken  into consideration. To  what extent and in what circumstances the court  can   take  notice   of  events   subsequent  to  the institution of  the action  is the  core problem. This is no more res  integra and  need not  be examined  in  depth.  In Pasupuleti Venkataeswarlus’  case this  Court examined  this question in  relation  to  a  proceeding  under  the  Andhra Pradesh Buildings  (Lease, Rent  &  Eviction)  Control  Act, 1960. The  landlord in  that case sought to evict the tenant as he  wanted to  start his  own  business  in  the  demised premises. In  other  words,  action  was  for  eviction  for personal requirement.  In the  zig-zag course of proceedings it transpired  that subsequent  to the  commencement of  the action the landlord had come into possession of another shop which would meet with his requirement and on this subsequent event tenant  requested the court to non-suit the plaintiff. At that  stage the  proceedings were pending before the High Court in a revision petition at the instance of the landlord questioning a  remand  to  the  trial  court  by  the  first appellate court  for investigation of certain facts. In this revision at the instance of the landlord the High Court took notice  of   the  subsequent   event  that   the  landlord’s requirement had  been fully  satisfied as  he  had  come  in possession of  another shop.  In appeal  by the  landlord to this Court,  a serious  exception was  taken that  the  High Court could  not have  taken  into  consideration  an  event subsequent to the commencement of the proceedings and non 380 suit  the  landlord  and  that  too  at  a  stage  when  the proceedings were  pending in revision at the instance of the landlord. Negativing  this  contention  and  dismissing  the appeal this  Court,  after  referring  to  the  decision  in Lachmeshwar Prasad  Shukul v.  Keshwar Lal  Chaudhri  quoted with approval  the following passage from Patterson v. State of Alabama :           "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." In the  leading judgment in Lachmeshwar Prasad Shukul’s case Varadachariar, J.  observed that  an  appeal  being  in  the nature of  a re-hearing the Courts in India have in numerous cases recognised  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 which have come into existence after the decree  appealed against  was  made.  Krishna  Iyer,  J. summed up the position in Pasupuleti Venkateswarlu’s case:           "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

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    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  binding   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 381      justice... 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." To sum  up, there  was a  proper and  regular application to meet with  the requirements  of order  41 rule  27, CPC  for additional evidence  inviting the  Court’s  attention  to  a subsequent event  of vital importance cutting at the root of the plaintiff’s  right to  continue the action. Coupled with it, there  was evidence  in the  form of a certified copy of the decree  showing that  the plaintiffs,  even if  they had some shade of title to commence action, they having lost all interest in  the property and the property having become one of exclusive  ownership of  a person  not  a  party  to  the proceedings,  were   no  more   entitled  to   continue  the proceedings for their own benefit.      Have the first appellate court and the High Court acted in accordance  with law in ignoring this subsequent event of vital importance ? The first appellate court, as pointed out earlier, proceeded  to examine  the contention on merits and rejected  it   on  the  ground  that  this  being  an  event subsequent to  the passing of the decree by the trial court, no notice  could be  taken of it, a view contrary to the law laid down by this Court. Same is true of the High Court when it said  that even if the landlord who commenced action lost all interest  in the  property subsequent  to the passing of the decree,  the decree does not become a nullity and at any rate no  note of  the subsequent  events can be taken in the absence of  a proper  application under  order 41,  rule 27, C.P.C. But the next observation of the High Court that where the  plaintiff   landlord’s  interest  in  the  property  is extinguished subsequent to the decree by the trial court, he does not lose his right to maintain and continue the action, is opposed  to the  very scheme  of the  Rent  Act  and  the provisions contained in ss. 11(1)(c) and 12. Both the courts were, therefore,  clearly in  error in  ignoring this  vital piece of  evidence which  goes to the root of the matter and would surely non-suit the plaintiffs.      Once this  subsequent event  of landlord’s  interest in the  property   getting  extinguished  as  the  property  in question is  allotted as an exclusive owner to a sharer upon a  partition  amongst  co-sharers,  is  properly  evaluated, unless some  proper explanation  is offered by the landlords who are parties to the proceedings, the plaintiffs are 382 liable to  be non-suited.  This does  not require  much of a discussion because plaintiffs sought possession for personal

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requirement of  respondent 1 Manohar Lal Sharma. Monohar Lal Sharma wanted  to start  his clinic,  as he  is a  qualified medical practitioner,  in the  suit  premises.  Manohar  Lal Sharma is  neither an  owner nor  a co-owner  nor he has any interest in  the suit  property since  the date of partition effected by  compromise between  the co-sharers  in Suit No. 4/75. If  action were  to start  today a  or day  after  the decree for  partition, could  Manohar Lal Sharma ever file a suit for  evicting the  present appellant from the suit shop on the ground that he wanted to start his clinic in the suit shop ?  If Manoharlal Sharma can bring such an action he can as well evict any tenant from any premises with which he has no connection.  Even if  at the  commencement of  the action Manoharlal Sharma  was a  co-owner alongwith his brother and uncle and,  therefore,  he  had  a  semblance  of  title  to commence action  for  eviction,  once  the  co-owner  parted company, partitioned  property by  metes and  bounds and the suit  property  came  to  be  allotted  to  Pyarelal  as  an exclusive owner.  Manoharlal Sharma cannot claim eviction of the tenant  from such property in which he has no subsisting interest. And  even if this event occurred subsequent to the passing of  the decree  by the  trial court, this subsequent event should  have  been  noticed  at  the  appellate  stage because the appeal is nothing else but a continuation of the suit and  in a  proceeding under the Rent Act the relief has to be  moulded according to the situation on the date of the decree; the  decree would mean the decree which is final and not  correctible  by  any  judicial  proceeding.  Manoharlal Sharma, therefore,  cannot seek  to evict the tenant for his personal requirement. Therefore, the suit for eviction under s.11(1)(c) would ordinarily fail on this ground. However, as the fresh  evidence is being taken into consideration and as both the  appellate courts and the High Court, have erred in approaching the  matter by ignoring the subsequent event, it would be  presently pointed  out that in order to do justice between the  parties the  matter will have to be remanded to the first appellate court.      Before turning  to the  next topic,  a word  about  the judicial approach to the question of personal requirement of the landlord  under the  Rent Act would not be out of place. The  learned  judge  of  the  first  appellate  court  while upholding the  claim of personal requirement of respondent 1 has observed as under:           "It is  for the plaintiffs to decide whatever they           think fit  and proper. It is not for the defendant           to suggest as 383           to what  they should  do. The  defendant  has  led           evidence to show that the plaintiffs have got some           more houses  at Girdih.... The defendant appellant           has also  filed certified  copy of judgment of one           suit No.  47/73 which  is Ext.  only to  show that           plaintiffs have  got a  decree for  eviction  with           respect to  the other  house at  Giridih.  I  have           already pointed  out earlier  that it  is for  the           plaintiffs  to  decide  which  of  the  houses  is           suitable for  them. It is not for the defendant to           suggest that  the house  which will fall vacant in           the near  future is  most suitable  house for  the           plaintiffs". This  approach   betrays  a  woeful  lack  of  consciousness relatable to circumstances leading to enactment of Rent Acts in almost  all States  in the  country.  The  time  honoured notion that the right of re-entry is unfettered and that the owner landlord is the sole judge of his requirement has been

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made to yield to the needs of the society which had to enact the Rent  Acts specifically  devised to  curb and fetter the unrestricted right  of re-entry  and to provide that only on proving some  enabling grounds  set out  in the Rent Act the landlord can  re-enter.  One  such  ground  is  of  personal requirement of  landlord. When  examining a case of personal requirement, if  it is pointed out that there is some vacant premises with the landlord which he can conveniently occupy, the element  of need  in his requirement would be absent. To reject this  aspect by  saying  that  the  landlord  has  an unfettered right  to choose  the premises is to negative the very raison  de’etre of  the Rent Act. Undoubtedly, if it is shown by  the tenant that the landlord has some other vacant premises in  his possession,  that  by  itself  may  not  be sufficient to  negative the  landlord’s claim  but in such a situation the  Court would  expect the landlord to establish that the  premises which  is vacant  is not suitable for the purpose of  his occupation  or for  the purpose for which he requires the  premises in  respect of  which the  action  is commenced in  the  Court.  It  would,  however,  be  a  bald statement unsupported  by the  Rent  Act  to  say  that  the landlord has an unfettered right to choose whatever premises he wants  and that  too irrespective of the fact that he has some vacant premises in possession which he would not occupy and try  to seek  to remove  the tenant. This approach would put a  premium on  the landlord’s greed to throw out tenants paying lower  rent in  the name  of personal  occupation and rent out  the premises in his possession at the market rate. To curb  this very  tendency the  Rent Act  was enacted and, therefore, it  becomes the  duty of  the Court administering the Rent  Act to  bear in  mind the object and intendment of the legislature in enacting the 384 same.  The   Court  must   understand  and   appreciate  the relationship between  legal rules  and one of necessities of life-shelter-and the  way in  which one  part of the society exacts tribute  from another  for permission  to  inhabit  a portion of  the globe.  In ’The Sociology of Law’, edited by Pat  Carlen,   the  author   examines  the   rent  and  rent legislation in England and Wales and observes as under:           "The   prevailing   paradigms   of   neo-classical      economics  and   empiricist   political   theory   have      determined the  conceptual insularity  of law and legal      institutions, with  the  result  that  they  and  other      social events  appear as  random existences independent      of their  historical formation. The force of any theory      of law must of course lie in its explanatory power, and      this in  turn depends  on the  wider  image  of  social      relations which produces it".      It was, however, contended on behalf of the respondents that even  if in view of the subsequent event the plaintiffs landlords were  not entitled  to recover  possession on  the ground set out in s.11(1)(c) yet the respondents would still be entitled  to evict  the appellant on the ground mentioned in  s.  11(1)  (d)  in  as  much  as  all  the  courts  have concurrently found  that the  appellant was  in  default  of payment of  rent  for  a  period  of  three  months,  i.  e. September, October and November, 1972, and that this finding was not  even questioned  before the High Court as mentioned in paragraph  3 of  the judgement  of the  High  Court.  The appellant has  set out  ground No.  V in  his  petition  for special leave in the following terms:           "Because the  High Court erred in holding that the      findings regarding  default in  payment of  rent and of      personal necessity  were not challenged before the High

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    Court". Undoubtedly, what  the High  Court states in its judgment on the question  whether a particular finding was challenged or not challenged  is entitled  to highest respect at our hands and must  ordinarily be  always accepted.  We have lingering hesitation in  the facts  of  this  case  for  two  specific reasons: (i) that there are some recitals in the judgment of the High  Court specifically referred to herein before which show that  certain aspects  have been disposed of cursorily, lacking precision;  and (ii)  that a  tenant who examined as many as  eight witnesses including himself to prove that the rent was  paid and  who specifically  pleaded that  fact  in reply  to  the  notice  served  by  the  landlords  and  who meticulously fought  his case  by making  an application for additional evidence at the appellate 385 stage would not give up the contention and if he had in fact given it  up there was no justification for still taking the matter to  the  highest  court.  Even  then  we  would  have overlooked the  contention to the contrary and accepted what has been  stated in  the judgment  but  for  the  fact  that subsequent event stated hereinabove may have a direct impact on the  title of  the  landlords-respondents  to  evict  the appellant on the ground of non-payment of rent.      If on  examining and  evaluating the  contents  of  the certified copy  of the  decree in partition suit No. 4/74 it is established  conclusively  that  the  property  has  been exclusively allotted  to Pyarelal  who has not applied to be joined as  party to  these proceedings  though he  has filed some affidavit  in this  appeal before  this Court and if no reservation is  made in  the decree  for continuation of the proceedings for  recovering possession on the ground of non- payment of  rent in  favour of  the present  respondents nor have the  present respondents  undertaken any  liability  to continue the  proceedings on  behalf of  Pyarelal Sharma for the limited  purpose of  recovery of rent, in our opinion it would be  extremely doubtful  if the  respondents can  still maintain the  action for  recovering rent and for possession on the  grounds mentioned  in s. 11(1)(c) & (d). That aspect has not  at all  been examined either by the first appellate Court or  by the  High Court.  If ’A’,  a landlord commences action for eviction against his tenant on the only ground of non-payment  of   rent  and   during  the  pendency  of  the proceedings transfers  the property lock stock and barrel to a third  person and  if the  third person  is not before the Court, without  finally expressing  any opinion  because the remand is  contemplated, it  is just unthinkable that such a landlord can continue the suit even after he had no interest in the  property. The  aspect may have to be examined in The background  of   the  contract   between  the  landlord  who commenced the  action and  his transferee, or the transferee having reserved  some right  came to  the  Court  for  being impleaded as  a party  to continue the action and his, right to continue, may be examined. These aspects arc not examined by any Court though decision on them goes to the root of the matter.  Therefore,   a  remand   is   inevitable   in   the circumstances of this case.      Accordingly, we  allow this  appeal and  set aside  the decree of  the High  Court and the first appellate Court and remand the  case to  the first  appellate Court which, after granting the  application under  order 41,  r. 27 and taking the certified  copy of the decree in partition suit No. 4/74 on record  and after  giving an  opportunity to  the parties before it  to lead  any additional evidence pursuant to this additional  evidence,   would  decide   the  following   two

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questions: 386           (1) Does  the partition  decree transfer  the suit      shop to Pyarelal Sharma exclusively ?           (2)  If  yes,  can  the  respondents  (plaintiffs)      maintain action and are entitled to evict the appellant      (defendant) on  the ground  of personal  requirement of      Manohar Lal  Sharma (respondent 1) and/or on the ground      of default  as contemplated  by s. 11(1)(d) of the Rent      Act ? On the  evidence on  these issues  the Court  may mould  the final relief consistent with its findings.      With this direction the appeal is remanded to the first appellate Court. In the circumstances of the case there will be no order as to costs. N.V.K.    Appeal allowed. 387