1. Heard Sri Ajay Kumar Singh, learned counsel for petitioner and perused the record.
2. None appeared on behalf of respondents though case has been called in revised and names of Sri A. C. Tripathi and Sri R.K. Tiwari have been shown as counsel for respondents.
3. In brief, the facts of the case are that respondent-landlord filed an application under Section 21 (1) (a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as "Act, 1972") before Prescribed Authority seeking release of shop in question occupied by petitioner-tenant on the ground that it was required by the landlords for setting up a business by the landlord-applicant no. 1, namely, Dwarika Prasad Agarwal, relating to sale and purchase, printing and publishing of books and Panchangs; and binding. The application was registered as P.A. Case No. 45 of 1992, which was contested by petitioner-tenant stating that landlord is already engaged in business of sale, purchase, printing and publications of books, panchang, calender and diaries under the name and style "Sri Thakur Prasad Pustak Bhandar" in a very specious accommodation in the premises No. CK 25/14 situated in Kachauri Gali, Varanasi. Since long, they are having a Press, namely, "Bharat Press" in the same premises. They had another Printing Press at Premises No. 67/82, Nati Imli, Varanasi.
4. The premises CK 25/14 actually is a very big property covering about five biswa of land and a number of shops are situated thereon. It is a two story building namely ground floor and first floor and most of the part and rooms of this building are in possession and occupation of applicant-landlords. The landlords possess several commercial accommodations available to them and their other brothers. Late Sri Thakur Prasad Agarwal in fact left a number of buildings, namely Premises No. CK-48/168, Haraha Sarai, Varanasi, CK54/39, CK 541, CK 54/41 and CK 543, Govindpura Varanasi. Petitioner is an old tenant in building for the last 60 years paying regular rent. He has no other accommodation. In case, evicted, he would render jobless. Therefore, he requested that the application of landlord be rejected.
5. The application was allowed by Prescribed Authority vide judgment dated 4.5.1995 and petitioner's Rent Appeal No. 158 of 1995 has been dismissed by Addl. District Judge, Court No. 1, Varanasi on 11.10.2004.
6. Sri A.K. Singh, learned counsel for petitioner contended that in the premises in question, namely, CK 25/14, besides the fact that the landlord-respondents possess most of the accommodation consisting of various shops etc. there are six other tenants namely, Madho Rao, Raja Ram, Lautu Ram, Sankatha Prasad, Sheetla Prasad and Bechoo. Number of other accommodations are possessed by landlords for running their business but these facts were not disclosed in the Release Application. Since, both the parties had filed various evidences in support of assertions of facts in their pleadings, petitioners filed two applications requesting the Trial Court for local inspection through Advocate Commissioner but the same remained pending and were not disposed of. Then another application was filed before Appellate Court at the time when appeal was pending whereupon an Advocate Commissioner was appointed who submitted his report dated 5.12.1998 (Annexure 20 to writ petition). In the said report, the Commissioner has given details of various properties possessed by respondent-landlords and also the fact that he was not allowed to inspect a large number of premises in possession of respondent-landlords at different buildings, details whereof are given in the report, on account whereof measurement and inspection thereof could not be done in detail. However, this report has not at all been considered and referred to by the Appellate Court while passing the impugned appellate order rejecting appeal though it has material impact on the matter and once the appellate authority has appointed an Advocate Commissioner, and obtained report, which was not rejected, it formed an evidence and ought to have been considered by the Appellate Court while deciding appeal.
7. It is also contended that petitioner had filed another application dated 23.8.1994 (Annexure 21 to writ petition) stating that a number of shops were constructed by landlord after the aforesaid inspection of Advocate Commissioner and if necessary, the Court may get another report in respect thereto by appointing another Commission of Advocate Commissioner. This application was registered as Paper No. 149-C and on the said application Appellate Court passed an order on 23.8.2004 directing that the said application shall be considered at the time of final hearing but then it has also remained indisposed.
8. Petitioner, also moved an application on 25.8.2004 requesting the Appellate Court to itself make an inspection of premises in question so as to get complete information which could help it for considering objections filed by respondent-landlords against Commissioner's report alleging the same as incomplete. This application was registered as Paper No. 154-C and thereupon also an order was passed by lower appellate Court on 27.9.2004 to consider the same at the time of final hearing.
9. Two more applications i.e. Paper No. 162-C and 163-C were filed on 5.10.2004 requesting the Appellate Court to admit six documents as additional evidence which were nothing but only certified copies of certain documents whereupon the landlord-respondents filed their counter affidavit also but no order thereon was passed by appellate Court and the said applications remained pending.
10. In the impugned appellate order, however, the lower appellate court has declined to consider the aforesaid applications on the ground that the need of landlords shall be seen at the date of filing of Release Application and subsequent events cannot be looked into.
11. It is contended that subsequent events in the matter like present one which have material bearing and if demolishes the very basis for which ejectment of the tenant has been sought by the landlord, if the foundation stood disappear, the Court should take into consideration such subsequent events. He also contended, while considering question of bona fide need and comparative hardship, the Court below has to consider and examine the question whether without disturbing occupation of tenant, sufficient and suitable accommodation is available to the landlord for the purpose of which the landlord wants to evict tenant and if such accommodation is available to the landlord, relief of eviction shall be denied. In support of above submissions, reliance is placed on Apex Court's decisions in Gaya Prasad Vs. Pradeep Srivastava 2001 (1) ARC 352 (SC), Kedar Nath Agrawal and another Vs. Dhanraji Devi and another 2004 (4) AWC 3709 (SC) and judgments of this Court in Ram Sevak Vs. A.D.J. Etawah and others 2004 (1) ARC 414, Raj Pal Vs. Special Judge (E.C. Act), Etah and another 1999 (2) ARC 640 and Karamat Ullah Vs. D.J. Kanpur and others 2000 (2) ARC 212.
12. Learned counsel for landlord-respondents, however, supported the judgments impugned in the writ petition for the reasons stated therein.
13. It has not been disputed that Appellate Court itself found justification for appointing an Advocate Commissioner to find out the exact position of accommodation available with the landlord-respondents. In view of various averments made by petitioner, an Advocate Commissioner was appointed and he had submitted report. From the appellate judgment, however, it does not appear that the said report at all has been addressed by Appellate Court while deciding the appeal of petitioner and dismissing the same. It also does not mention that the said Advocate Commissioner's report was rejected by it and, therefore, it ought not to have been considered at the time of deciding the appeal. He has simply said that once the evidence is over, the need of landlord has to be seen on the date when application was filed and no subsequent evidence etc. is relevant. This approach of Appellate Court, in my view, is thoroughly misconceived and incorrect. When eviction is sought on the ground of personal requirement/need of landlord, such requirement must continue to exist till final determination of the case. The requirement of landlord must not only exist on the date of action, but should subsist and persist till final decree or order of eviction is made.
14. The question as to why and in what circumstances, subsequent activities/events can be looked into, has been considered time and again by Apex Court as well as this Court also.
15. A three-Judge Bench of Apex Court in Pasupuleti Venkateswarlu vs. Motor and General Traders 1975 (1) SCC 770 permitted cognizance of subsequent events, though very cautiously, and said:
"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 proceedings provided the rules of fairness to both sides are scrupulously obeyed."
16. Again in Hasmat Rai Vs. Raghunath Prasad 1981 (3) SCC 103, the cognizance of subsequent events was held permissible provided it wholly satisfy the requirement of petitioner/landlord who petitioned for eviction on the ground of personal requirement. The Court said:
"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 landlords 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."
(emphasis added)
17. In Ramesh Kumar Vs. Kesho Ram 1992 Suppl. (2) SCC 623 a two-Judge Bench of Apex Court said that normal rule is that rights and obligations of the parties are to be determined as they were when the lis commenced. The only exception is that the Court is not precluded from moulding reliefs appropriately in consideration of subsequent events provided such events had an impact on those rights and obligations. Hon'ble M.N. Venkatachalia, J (as his Lordship then was) observed:
"The normal rule is that in any litigation the rights and obligations of the parties are adjudicated upon as they obtain at the commencement of the lis. But this is subject to an exception. Wherever subsequent events of fact or law which have a material bearing on the entitlement of the parties to relief or on aspects which bear on the moulding of the relief occur, the court is not precluded from taking a 'cautious cognizance' of the subsequent changes of fact and law to mould the relief."
18. In Gaya Prasad (supra), the Court said that for the malady of judicial system of delayed justice, a landlord should not suffer. Every day may result in some kind of development and, therefore, every subsequent development would not deny claim of landlord on the pretext of a subsequent development since no one can be expected to stay idle for all times to come till a litigation is going on. It may happen that the lifetime of litigation may be more than that of litigant-landlord himself. Therefore, the judicial tardiness should not cause an irreparable loss to a landlord. It would be unjust to shut the door of justice to a landlord on the end of litigation after passing through various levels of litigation to deny him justice and relief sought only on the ground of certain developments occurred pendente lite because the tenant has been successful in prolonging litigation for an unduly extended long period. However, if the cause of action is submerged in such subsequent events, in other words, if the subsequent events are such as to satisfy the very requirement of landlord in its entirety, the same can be seen and there is no allergy in considering and taking note of subsequent events of importance which may justify remoulding of relief not on account of mere pendency of litigation but on account of the position and status of landlord and other relevant factors.
19. This matter was further examined in detail in Kedar Nath Agrawal (supra) and having considered a number of authorities on the subject, the Apex Court, in para 16 of judgment, crystallized three aspects when subsequent events can be taken note by a Court of law, namely:
(i) The relief claimed originally has, by reason of subsequent change of circumstances, become inappropriate; or
(ii) It is necessary to take notice of subsequent events in order to shorten litigation; or
(iii) It is necessary to do so in order to do complete justice between the parties.
20. The Appellate Court, in the present case, without looking to binding authorities of Apex Court, as discussed above, and by brushing aside various material available on record as also the applications filed by petitioner to bring on record the subsequent events having material bearing, by simply observing that no subsequent events can be considered, has clearly erred in law. The impugned judgment, therefore, cannot sustain.
21. In the result, writ petition is allowed to the extent that the impugned appellate judgment dated 11.10.2004 (Annexure 1 to writ petition) is hereby set aside. The matter is remanded to Appellate Court to rehear the appeal of petitioner in the light of observations made above and in accordance with law and to decide the same afresh after hearing the concerned parties.
22. It is, however, provided that Appellate Court shall pass fresh order expeditiously preferably within three months from the date of production of certified copy of this order.
23. No costs.
Dt. 26.7.2012 PS