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CASE NO.: Appeal (civil)  7608 of 2002

PETITIONER: Pratap Rai Tanwani and Anr.                              

RESPONDENT: Uttam Chand and Anr.                                             

DATE OF JUDGMENT: 08/09/2004

BENCH: ARIJIT PASAYAT & PRAKASH PRABHAKAR NAOLEKAR

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT,J

               The tenants are in appeal against the impugned judgment of  the VIIth Civil Judge No. 2,Bhopal, M.P., the first Appellate Court,  and finally the judgment of affirmation by learned Single Judge of the  Madhya Pradesh High Court at Jabalpur.  Background facts in a nutshell  are as follows: A suit for eviction was filed before the trial court under  Section 12 (1)(a)(b) and (f) of the Madhya Pradesh Accommodation  Control Act, 1961 (in short the ’Act’).  The plaintiffs filed the suit  on the ground that (a)there was default in payments of the rent due,  (b)the tenant (defendant No. 1) had unlawfully sublet the tenanted  premises and (c) for bona fide requirement.  The trial court framed,  in total, 13 issues and held that the need  of the plaintiffs, so far  as the suit premises are concerned, was genuine and bona fide.  It was  also held that the plaintiffs had not got other suitable accommodation  available and the defendant No. 1 had sublet the premises to defendant  No. 2.  The suit was accordingly decreed.   

In appeal the Appellate Authority held that the plea of  subletting was not established.  However, the finding regarding bona  fide need was affirmed by the First Appellate Court.  In Second Appeal  the judgments of the courts below, so far as it was adverse to the  appellant, were affirmed. Tenants filed an application in terms of  Order 41, Rule 27 of the Civil Procedure Code 1908 (in short the  ’CPC’).  Another application for amendment of the Written Statement  was also filed.  By these two applications the appellants wanted to  highlight the alleged factual position that during the pendency of the  matter Naresh Talreja  son of the appellant No. 1, Uttam Chand  (respondent No.1 herein) had acquired a degree in Engineering, got an  employment in an Indian Company and subsequently was settled in USA  and was working there, with no chance of his coming back to India.   Therefore it was submitted that the alleged bona fide need and  requirement, for which the application was filed, had become non- existent, thereby disentitling the plaintiffs from any relief.   

The present respondents refuted the claim of the appellants and  submitted that since there was no other accommodation readily  available Naresh Talreja pursued study in Engineering and was

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temporarily engaged in USA.  He wanted to come back and start his  business.

The High Court found that the requirements of Section 12(1)(f)  of the Act were fully complied with and in view of concurrent findings  recorded to the effect that there was bona fide need of the premises,  Second Appeal had no merit. Accordingly the High Court dismissed the  Second appeal.  Time was granted till the end of August, 2002 to  vacate the premises.

       In support of the appeal, Mr. Raju  Ramachandran, learned Senior  counsel submitted that the High Court has lightly set aside the  subsequent events. It is a settled position in law that the question  whether a person has bona fide need, was not restricted to the point  of time when the application for eviction is made; it continues till  final adjudication.  On the facts of the case the High Court has  erroneously come to the conclusion that the need subsisted.

       Per contra, learned counsel for the respondents submitted that a  person, for whose bona fide need the premises are required, cannot  just remain idle in anticipation of getting the premises for starting  business.  As there was delay in disposal of the matter,  Naresh  completed his studies and had taken temporary employment with visa for  limited period and intended  to come back to India as soon as premises  are available to start the business.  In any event, it was pointed out  if there was non-user of the premises for the purpose for which  eviction was sought for, the concerned tenant has protection in terms  of Section 17 of the Act.

                It is a stark reality that the longer is the life of the  litigation the more would be the number of developments sprouting up  during the long interregnum.  If a young entrepreneur decides to launch  a new enterprise and on that ground he or his father seeks eviction of  a tenant from the building, the proposed enterprise would not get faded  out by subsequent developments during the traditional lengthy longevity  of the litigation.  His need may get dusted, patina might stick on its  surface, nonetheless the need would remain intact. All that is needed  is to erase the patina and see the gloss.  It is pernicious, and we may  say, unjust to shut the door before an applicant just on the eve of his  reaching the finale after passing through all the previous levels of  the litigation merely on the ground that certain developments occurred  pendente lite, because the opposite party succeeded in prolonging the  matter for such unduly long period.

       We cannot forget that while considering the bona fides of the  need of the landlord the crucial date is the date of petition.  In  Ramesh Kumar v. Kesho Ram ( 1992 (Suppl. (2) SCC 623)  a two-judge  Bench of this Court (M.N. Venkatachalia, J., as he then was, and N.M.  Kasliwal, J.) pointed out that the normal rule is that rights and  obligations of the parties are to be determined as they were when the  lis commenced and the only exception is that the court is not precluded  from moulding the reliefs appropriately in consideration of subsequent  events provided such events had an impact on those rights and  obligations.  What the learned Chief Justice observed therein is this  (SCC pp. 626-27, para 6)

       "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

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taking a ’cautious cognizance’ of the subsequent  changes of fact and law to mould the relief."

     The next three-Judge Bench of this Court which approved and  followed the above decision, in Hasmat Rai v. Raghunath Prasad (1981  (3) SCC 103) has taken care to emphasise that the subsequent events  should have "wholly satisfied" the requirement of the party who  petitioned for eviction on the ground of personal requirement.  The  relevant passage is extracted below : ( SCC pp. 113-14, para 14)

       "Therefore, it is now incontrovertible that  where possession is sought for personal requirement  it would be correct to say that the requirement  pleaded by the landlord must not only exist on the  date of the action but must subsist till the final  decree or an order for eviction is made.  If in the  meantime events have cropped up which would show that  the landlord’s requirement is wholly satisfied then  in that case his action must fail and in such a  situation it is incorrect to say that as decree or  order for eviction is passed against the tenant he  cannot invite the court to take into consideration  subsequent events."

       The judicial tardiness, for which unfortunately our system has  acquired notoriety, causes the lis to creep through the line for long  long years from the start to the ultimate termini, is a malady  afflicting the system.  During this long interval many many events are  bound to take place which might happen in relation to the parties as  well as the subject-matter of the lis.  If the cause of action is to be  submerged in such subsequent events on account of the malady of the  system it shatters the confidence of the litigant, despite the  impairment already caused.

The above position in law was highlighted in Gaya Prasad vs.  Pradeep Srivastava (2001(2) SCC 604).

        One of the grounds for eviction contemplated by all the rent  control legislations, which otherwise generally lean heavily in favour  of the tenants, is the need of the owner landlord to have his own  premises, residential or non-residential, for his own use or his own  occupation.  The expressions employed by different legislations may  vary such as "bona fide requirement", "genuine need", "requires  reasonably and in good faith", and so on. Whatever be the expression  employed, the underlying legislative intent is one and that has been  demonstrated in several judicial pronouncements of which we would like  to refer to only three.

       In Ram Dass v. Ishwar Chander ( 1988 (3) SCC 131) M.N.  Venkatachaliah, J. (as His Lordship then was ) speaking for the three- Judge Bench, said: (SCC pp. 134-35, para 11)         "11. Statutes enacted to afford protection to  tenants from eviction on the basis of contractual  rights of the parties make the resumption of  possession by the landlord subject to the  satisfaction of certain statutory conditions.  One of  them is the bona fide requirement of the landlord,  variously described in the statutes as ’bona fide  requirement’, ’reasonable requirement’, ’bona fide  and reasonable requirement’ or, as in the case of the  present statute, merely referred to as ’landlord  requires for his own  use’.  But the essential idea

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basic to all such cases is that the need of the  landlord  should be genuine and honest, conceived in  good faith; and that, further, the court must also  consider it reasonable to gratify that need.   Landlord’s desire for possession, however honest it  might otherwise be, ’requirement’ in law must have  the objective element of a ’need’.  It must also be  such that the court considers it reasonable and  therefore, eligible to be gratified.  In doing so,  the court must take all relevant circumstances into  consideration so that the protection afforded by law  to the tenant is not rendered merely illusory or  whittled down."  

       In Gulabbai vs. Nalin Narsi Vohra ( 1991 (3) SCC 483) reiterating  the view taken in Bega Begum vs. Abdul Ahad Khan ( 1979 (1) SCC 273) it  was held that the words "reasonable requirement" undoubtedly postulate  that there must be an element of need as opposed to a mere desire or  wish.  The distinction between desire and need should doubtless be kept  in mind but not so as to make even the genuine need as nothing but a  desire.

       Recently, in Shiv Sarup Gupta vs. Dr. Mahesh Chand Gupta (1999  (6) SCC 222) this Court in a detailed judgment, dealing with this  aspect, analysed the concept of bona fide requirement and said that the  requirement in the sense of felt need which is an outcome of a sincere,  honest desire, in contradistinction with a mere pretence or pretext to  evict a tenant refers to a state of mind prevailing with the landlord.   The only way of peeping into the mind of the landlord is an exercise  undertaken by the judge of facts by placing himself in the armchair of  the landlord and then posing a question to himself \026 whether in the  given facts, substantiated by the landlord, the need to occupy the  premises can be said to be natural, real, sincere, honest.  If the  answer be in the positive, the need is bona fide.  We do not think that  we can usefully add anything to the exposition of law of requirement  for self-occupation than what has been already stated in the three  precedents.

The above position was remained effected in Atma S. Berar vs.  Mukhtiar Singh ( 2003 (2) SCC 3 ):

       In the background of the factual position one thing which  clearly emerges is that the High Court had considered the subsequent  events which the appellants highlighted and tend to hold that the bona  fide need continues to subsist. As observed in Hasmat Rai’s case  (supra) the appellate Court is required to examine, evaluate and  adjudicate the subsequent events and their effect. This has been done  in the instant case.  That factual finding does not suffer from any  infirmity.  What the appellants have highlighted as subsequent events  fall within the realm of possibility or probability of non-return and  a certainty, which is necessary to be established to show that the  need has been eclipsed.  

       At this juncture it would be appropriate to take note of Section  17 of the Act. Same deals with consequences which statutorily follow  if there is deviation from the purposes for which possession has been  recovered. If in the instant case such contingency arises, the  respondents shall re-deliver possession to the appellants-tenants on  such terms as the Rent Controlling Authority shall fix.  

       Learned counsel for the appellants submitted that considering  the long period of tenancy a reasonable time should be granted to the  appellant to vacate the premises.

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       Learned counsel for the respondents submitted that the High  Court has granted time till the end of August, 2002 and by order dated  9th August, 2002 status quo regarding possession was directed to be  maintained.  Undisputedly the tenants are in occupation of the  tenanted premises.

       Considering the fact that the tenants are occupying the premises  for nearly two decades, in our considered view the time granted by the  High Court can be extended till the end of 2005.  The period of  tenancy is extended till the aforesaid date subject to the appellants’  filing the requisite undertaking before the trial court and make  continuing to payment of rents due within the stipulated time.   Arrears, if any, shall be paid to the respondents within the period of  two months from today.

       The appeal stands dismissed subject to the aforesaid directions  with no orders as to costs.