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PETITIONER: SUPER FORGINGS & STEELS (SALES) PVT. LTD.

       Vs.

RESPONDENT: THYABALLY RASULJEE (DEAD) THROUGH L.R’S.

DATE OF JUDGMENT01/12/1994

BENCH: VENKATACHALA N. (J) BENCH: VENKATACHALA N. (J) RAMASWAMY, K.

CITATION:  1995 SCC  (1) 410        JT 1995 (1)    51  1994 SCALE  (5)125

ACT:

HEADNOTE:

JUDGMENT: VENKATACHALA, J.: 1.      This is a tenant’s appeal by special  leave  granted under  Article  136  of the Constitution.   It  is  directed against the judgment and order dated 22.12 1981 of the  High Court  of  Judicature at Madras in CRP No. 1923 of  1981  by which an eviction order made by the courts below against the tenant/appellant  under  Section 10(3)(a)(iii) of the  Tamil Nadu  Buildings  (Lease and Rent Control) Act,  1960  --"the Act", was affirmed. 2.     Messrs Fakruddin & Company is a partnership firm  the business  of  which  was formerly carried  on  by  Thyabally Rasuljee,  respondent-l at non-residential building No.  155 Linghi  Chetty Street, Madras, taken on rent, not being  his own. 3.      Messrs  Super  Forgings  &  Steels  Ltd,  a  company registered  under  the Indian Companies Act is  the  tenant, which  was  carrying on its business  in  a  non-residential building  No.  118,  Linghi Chetty Street,  Madras  --  "the petition non-residential building" of which respondent-l was the  landlord.   The landlord filed a petition  against  the tenant  on  the  ground  available  to  him  under   Section 10(3)(a)(iii)  of  the  Act before the  Rent  Controller  at Madras  for  eviction of the tenant from the  petition  non- residential building, by stating the facts which constituted the said ground, thus:               "The petitioner submits that he is carrying on               business  in  the  name and  style  of  Messrs               Fakruddin  &  Company which is  a  partnership               firm  at No. 155 (Old No. 307)  Linghi  Chetty               Street,  G.T.  Madras1, which is  a  rented  d               building  and there is a threat  of  eviction.               The  petitioner is not in occupation  of  an),               building of his own for the business which  he               is  carrying  on  anywhere  in  the  City   of               Madras."

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4.      Since it was found by the Rent Controller  that  the facts  constituting  the  said ground   of  eviction   under Section 10(3)(a)(iii) of the Act, on which the landlord  had sought  eviction  of  the  tenant  from  the  petition  non- residential   building  were   satisfactorily   established, eviction  order was made by him in respect of  the  petition non-residential  building. Though, that eviction  order  was challenged by the tenant before the Appellate Authority  and the  High Court, in appeal and revision, respectively,  both the  appeal  and revision were dismissed  by  judgments  and orders  made in them. The present appeal by  special  leave, filed by the tenant in the year 1982 is directed against the said eviction order of the Rent Controller and judgments and orders of the Appellate Authority and the High Court. 5.   Certain developments which have 54 taken  place  during the pendency of the present  appeal  in this  Court, need mention here as they directly bear on  the case  under appeal :- That in the year 1984, after an  order was made by this Court on 29.4.1982, granting special  leave to  appeal from eviction order of the Rent Con’ troller  and the judgments and orders of the Appellate Authority and  the High  Court  and granting stay of eviction  order  operating against the tenant, partnership business of M/s. Fakruddin & Company  which was carried on by respondent-l at the  rented non-residential  building  No.  155  Linghi  Chetty  Street, Madras  came to be shifted to non-residential  building  No. 151,  Linghi  Chetty  Street,  Madras.  Respondent1  in  the present   appeal,  who  was  the  landlord  since  died   on 16.8.1985,  that  partnership business of M/s.  Fakruddin  & Company,  came to be carried on by some of its partners  who are some of the respondents 2 to 11 in this appeal,  brought on record as L.R’s of deceased respondent-l.  When the  said developments were brought to the notice of a Division  Bench of  this Court presided over by one of us  (Ramaswamy,  J.), before  which the present appeal had come up for hearing  on 29.9.1993,  an  order was made directing  the  Small  Causes Court,  Madras, to hold an enquiry into matters relating  to the  partners  who are carrying on the  business  of  Messrs Fakruddin  & Company after the demise of respondent- 1,  the owners  of non-residential building No. 151,  Linghi  Cherry Street,  Madras,  where  the business of  M/s.  Fakruddin  & Company is presently carried on, its partners who had become the  owners of the petition non-residential  building  after the death of its owner respondent-l, and the owners of  non- residential building No. 151, Linghi Chetty Street,  Madras, and  to  submit  a report on  the  questions  specified   6. therein. On an enquiry held by the Court of Small Causes  at Madras,   pursuant  to  the said  order,  the  report  dated 4.4.1994  is  sent  by it to this  Court.   The  true  facts disclosed  in  that  report, which  were  not  controverted, before us are:               (i)   that  the partnership business  of  M/s.               Fakruddin  & Company which was carried  on  by               the deceased landlord respondent-l, in  rented               building  No. 155, which was not his own,  was               shifted  in the year 1984  to  non-residential               building   No.  151,  Linghi  Cherry   Street,               Madras;               (ii) that the partnership of M/s. Fakruddin  &               Company,  of which respondent-l,  the  father,               and respondents 2, 3, 5, 6, 8 and 9, the sons,               were the partners, has become the  partnership               of  sons of the deceased  respondent-l,  i.e.,               respondents 5, 6 and 9, Rashida, the  wife  of

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             respondent-5,   Sara,   the   wife   of    the               respondent6, Farida, the wife of  respondent-9               and   respondent-11  Sugrabai,  the  wife   of               deceased  respondent-l -- the active  partners               out of them being respondents 5, 6 and 9,  the               sons of deceased respondent-l;               (iii)   that  respondents-2  to  10  are   the               co-owners of non-residential building No. 151,               Linghi   Chetty  Street,  Madras   after   its               purchase  which  had taken place  even  before               filing   of  the  eviction  petition  by   the               landlord,  respondent-l  against  the  tenant-               appellant for its eviction from nonresidential               building   No.  118,  Linghi  Chetty   Street,               Madras;               (iv)  that the petitioners-2 to 11 became  the               co-owners of the non-residential building  No.               118,  Linghi  Chetty  Street,  Madras  -   the               petition  non-residential  building,  on   the               demise of respondent-l, as his heirs. 6. Because of the said true facts 55 disclosed  from the report of the Court of Small  Causes  at Madras which have emerged as a result of developments in the case  during  the pendency of the present appeal,  the  main question  that  needs  our consideration  and  decision  is, whether  respondents-5,  6 and 9, the sons of  the  deceased respondent-1  who, as co-owners of non-residential  building No.  151, Linghi Chetty Street, Madras, arc carrying on  the business  of their partnership M/s. Fakruddin & Company   in that  non-residential building be regarded as landlords  not occupying  a non-residential building in the city  which  is their own, for obtaining under Section 10(3)(a)(iii) of  the Act,  possession of the petition nonresidential building  of which also they are co-owners. 7.     That a landlord who, for purposes of carrying on  his business, is not occupying a non-residential building of his own  in the city can get under Section 10(3)(a)(iii) of  the Act,  possession or another non-residential building of  his own     in  the city in the occupation of a tenant  was  not disputed  on  behalf of the tenant appellant.   But  it  was contended on behalf of the tenant-appellant that a  landlord occupying  for  purposes of carrying on his business a  non- residential building, of which he is a co-owner cannot claim the  benefit of ground of eviction available  under  section 10(3)(a)(iii)  of  the  Act  against  a  tenant  in  a  non- residential  building of which he is a owner or a  co-owner. The  sustainability  of  that  contention  was,  questioned, rather strenuously, by learned counsel for respondents 2  to 11   on the plea that a landlord who is a co-owner  Of  non- residential  building where he carries on his business,  not being  its so1e owner, such building cannot be  regarded  as ’his  own’ envisaged under section 10(3)(a)(iii) of the  Act as  would  disentitle him to the benefit of  the  ground  of eviction,  available thereunder..  We find it  difficult  to accept the plea advanced on behalf of respondents 2 to 11 in questioning  the sustainability of the contention raised  on behalf of the appellant-tenant. 8.     Section  10(3)(a)(iii) of the Act in-sofar as  it  is material, reads thus:-.-               "10(3)(a)  ..................               (ii)  ..................                   (iii)    In   case   it   is   any   other               nonresidential  building  if the  landlord  or               (any  member of his family) is  not  occupying

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             for  purposes of a business which he  or  (any               member  of his family) is carrying on, a  non-               residential  building  in the  city,  town  or               village concerned which is his.               OWn" 9.      If  a landlord is a co-owner  of  a  non-residential building in the city, town or village concerned, which he is occupying for purposes of carrying on his business, will  he not be occupying therefor a non-residential building of  his own  envisaged in the above Section 10(3)(a)(iii), as  would disentitle   him  to  the  ground  of   eviction   available thereunder  being  the real question needing our  answer  in the  light  of  the aforesaid plea of  learned  counsel  for respondents  urged in questioning the sustainability of  the contention raised on behalf of the appellant-tenant, we have to find the answer therefor. 10.    The answer to the said question, in our view,  cannot be  anything other than that a non-residential  building  in occupation of landlord which is ’his own’ envis- 56 aged  in  Section 10(3)(a)(iii) above, is not only  that  of which he is an absolute owner, but also that of which he  is a co-owner, for a co-owner of a building who is its landlord is   regarded under Rent Control Laws of our country as  its owner entitled to obtain possession of such a building  from a tenant for his bonafide requirement. 11.     In Sri Ram Pasricha rs. Jagannath     Ors.,  1977(1) SCR  395, a three-Judge Bench of this Court had to  consider the  question  whether a co-owner-landlord can  be  said  to require  the  premises  for his own  occupation  within  the meaning  of the expression "if he is the owner"  in  Section 13(1)(1’)  of the West Bengal Tenancy Act, 1956  which  read thus:               "Sec.   13.   Protection  of  tenant   against               eviction --               (1 ) Notwithstanding anything to the  contrary               in  any other law, no order or decree for  the               recovery of possession of ,’my premises  shall               be made by any Court in favour of the landlord               against a tenant except on one or more of  the               following grounds, namely --               where the premises are reasonably required  by               the  landlord either for purposes of  building               or   rebuilding   or   for   making    thereto               substantial  additions or alterations  or  for               his  own occupation if he is the owner or  for               the occupation of any person for whose benefit               the premises are held". 12.     The  Bench which considered the  aforesaid  question with  reference to the said provision of Rent  Control  law, pressed its view thereon, thus:               "jurisprudentially,  it is not correct to  say               that  a  co-owner  of a property  is  not  its               owner.  He  owns every part of  the  composite               property along with others ,’red it cannot  be               said  that  he  is  only  a  pan-owner  or   a               fractional owner of the property. The position               will  change only when partition takes  place.               It  is, therefore, not possible to accept  the               submission   that   the   plaintiff   who   is               admittedly  the landlord and co-owner  of  the               premises  is  not the owner  of  the  premises               within  the meaning of section 13 (1 )(f).  It               is   not  necessary  to  establish  that   the               plaintiff  is the only owner of  the  property

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             for the purpose of section 13(1)(f) as long as               he is a co-owner of the property being at  the               same  time  the acknowledged landlord  of  the               defendants.  ........  We are of  the  opinion               that  co-owner  is  as much an  owner  of  the               entire  property  as  ,’my  sole  owner  of  a               property is." 13.    The owner in the expression ’if he is the  owner’  in Section  13(1)(f) of the West Bengal Tenancy Act, 1956  when as  opined  by this Court ought to be regarded as  ’the  co- owner’  inasmuch  as  ’the owner’, like any  sole  owner  of property,  there  would be no justification for us  to  hold that  ’the  non-residential building which is  has  own’  in Section  10(3)(a)(iii) of the Act, can only be that  of  its absolute  ’owner’ and not of its ’co-owner’. 14.     Therefore,  we have no hesitation  in  reaching  the conclusion  that  the respondents, who are carrying  on  the business  of  M/s. Fakruddin &  Company  in  non-residential building  No.  151, Linghi Chetty Street, Madras,  of  which they  are  co-owners can be regarded as landlords,  who  are occupying their own non-residential building envisaged under clause  (iii)  of  Section 10(3)(a) of  the  Act,  as  would disentitle them to retain the benefit of the eviction  order made by the Rent Controller against the tenant in respect of the petition 57 non-residential  building  at the instance of  the  deceased respondent-l,  for  carrying on his business on  the  ground that he did not occupy his own non-residential building for’ the  purpose.  Consequently, the eviction order of the  Rent Controller  as affirmed by the Appellate Authority  and  the High Court, which is under challenge in this appeal,   calls to  be set aside taking into consideration the  developments which have taken place during its pendency in this Court. 15.    However, it was argued on behalf of respondents 2  to 11   that  even  if  the  non-residential   building   where respondent   was carrying on the partnership business of M/s Fakruddin & Company, for the carrying on of which he  wanted to  get  possession  of  the  non-residential  building   in occupation  of the appellant-tenant had come to be owned  by respondents  2  to 11 because of the death  of  respondent-l during the pendency of the present appeal, they could not be denied  the benefit of eviction order under’ appeal  got  by the deceased  respondent- 1  under section 10(3)(a)(iii)  of the Act. What was submitted on behalf of respondents 2 to 11 was  that a proceeding for eviction under the Act should  be regarded as having created a vested right when the  eviction order of the Controller was affirmed by the High Court in  a revision  petition allowed under     the Act and  an  appeal pending in this Court under Article 136 of the  Constitution against  that eviction order, being special appeal  provided for  under  the  Constitution  cannot  be  considered  as  a continuation eviction proceeding as would entitle this Court to  deny the relief got by a party from the Rent  Controller and  the High Court be:cause of the subsequent  developments taking  place  during  the pendency of the  appeal  in  this Court. We find it difficult to accede to the said submission made on behalf of respondents 2 to 11 in this appeal. 16.    Section 10(3)(a)(iii) of the Act confers a right on a landlord   to  take  advantage  of  the   ground   available thereunder  to evict his/her tenant from  a  non-residential building.  The right conferred under that provision  of  the Act is not an accrued right. As held by the Privy Council in Abbott  .v.  Ministers for Land, 1895 AC 425,  that  a  mere

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right to take advantage of the provision of an Act is not an accrued right and this position is accepted by this Court in Kanaya Ram and Others v. Rajender Kumar and Others,  1985(1) SCC  436, as well.  Therefore, if a landlord under  the  Act obtains  an eviction order in respect of  a  non-residential building  against the tenant taking advantage of  the  right conferred   upon   him   in  that   regard   under   section 10(3)(a)(iii) of the Act such eviction order does not create in  him an indefeasible vested right when it has not  become final and conclusive, having become the subject of an appeal under Article 136 of the Constitution, where this Court  has the power to annul such eviction order, if the circumstances so  warrant.   In Pasupuleti Venkateswarlu v.  The  Motor  & General Traders, 1975 (1) SCC 770, where a three judge Bench of this Court had an occasion to deal about the jurisdiction and  propriety  of Court taking note  of  the  circumstances which come into being after the commencement of the eviction proceeding under a Rent Control Legislation, which will have a fundamental impact on the right to relief or the manner of moulding it, explained the legal position thus:               "..It is basis to  our processual jurispru-               58               dence that the right to relief must be  judged               to  exist as on the date a  suitor  institutes               the  legal proceeding.  Equaily clear  is  the               principle  that the procedure is the  handmaid               and not the mistress of the judicial  process.               If  a fact, arising after the lis has come  to               court  and  has a fundamental  impact  on  the               right to relief or the manner of moulding  it,               is  brought  diligently to the notice  of  the               tribunal, it cannot blink at it or be blind to               events  which  stultify or  render  inept  the               decretal remedy. Equity justifies bending  the               rules   of   procedure,  where   no   specific               provision or fairplay is not 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  o f               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               subsequent   to   the   institution   of   the               proceeding  provided the rules of fairness  to               both sides are serupulously obeyed..." 17.   The said legal position adumbrated by the  three-Judge Bench  of  this Court, leaves no room for us  to  doubt  the power of this Court to take note of the circumstances  which have  cropped  up  during the pendency of  an  appeal  under Article  136  of the Constitution for granting,  denying  or moulding  the relief to be given to a party in such  appeal, for  meeting the ends of justice. Hence, the power  of  this Court in an appeal under Article 136 of the Constitution  to

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take   cautious  congnizance  of  events  and   developments subsequent to institution of eviction proceeding and  grant, deny, mould the relief sought by a party, in consonance with justice and fair play is not restricted merely because it is exercising  its power to deal with an appeal conferred  upon it by the Constitution. 18.    In the facts of the present case as we  have  pointed out earlier respondents 2 to 11 become disentitled to obtain eviction  order  under  section  10(3)(a)(iii)  of  the  Act because   they  are  the  co-owners  of  a   non-residential building,  where they are carrying on the business  of  M/s. Fakruddin  &  Company  for carrying on  which  business  the deceased respondent-1 had sought eviction of the  appellant- tenant  from another non-residential building of which  also respondents  2  to 11 have become the  co-owners  after  the demise  of respondent-l. Thus, the  subsequent  developments which have arisen during the pendency of the present  appeal warrant  the  setting aside of the eviction order  which  is questioned in appeal. 19.   In the result, we allow this appeal and set aside  the eviction order made against the appellant-tenant by the Rent Controller and the appellate and the revisional orders  made thereon by the appellate authority and the/High Court,  with no costs. 59