JUDGMENT Jagdish Bhalla, J.
1. This writ petition is directed against the judgment and order dated 2.9.1987, passed by the District Judge, Hardoi, arising out of S.C.C. Revision No. 4 of 1987. The learned District Judge has allowed the revision of the defendant/opposite party No. 2, the judgment of the trial court has been quashed and the suit of the plaintiff has been dismissed.
2. The premises in dispute was given on rent by Late Sirish Chandra Agarwal to defendant/opposite party No. 2. Sri Sirish Chandra Agarwal died during pendency of this writ petition. Thereafter, he was substituted by his legal heirs 1/1 to 1/9. The tenancy between the parties is not disputed in the light of the agreement acted upon between the parties. Initially, the rent was agreed to be Rs. 40 per month and the opposite party No. 2 had given an advance of Rs. 1.520 to be adjusted at the rate of Rs. 40 per month. After adjustment, it was agreed upon that the rent would be Rs. 50 per month and all the Government taxes would be paid by the tenant and the tenant will neither sub-let the premises nor would be allowed to give it to someone else.
3. According to the petitioners, counsel late Sirish Chandra Agarwal, by a notice dated 26th July, 1982 called upon the opposite party No. 2 to clear off the house taxes and water tax amount to rupees 595 and to vacate the aforesaid shop after 30 days of receipt of the notice as the respondent No. 2 has failed to deposit the taxes as agreed by him and has also changed the trade without permission of the landlord and put up a Halwai shop causing damage to the building and from the smoke caused In the trade had provided menace to other tenants. The said notice was replied on behalf of opposite party No. 2 by Sri D. S. Sinha, Advocate on 4/5.8.1982, inter alia, informing that all the Government taxes have been paid by the opposite party No. 2 and no damage is being caused to the shop and none of the tenants of Sirish Chandra Agarwal has been harassed. Late Sirish Chandra Agarwal filed a Suit No. 31 of 1982 for arrears of rent and ejectment in the Court of Judge. Small Causes. Hardoi, inter alia, the specific grounds that the petitioner has contravened the conditions of the agreement by not paying the taxes, by changing the user and has taken his two brothers Bhagwati Prasad and Lalta Prasad as his partners in the new business. It was also relied upon that the two brothers are not the family members of the opposite party No. 2 and, as such, it amounts to sub-letting under the provisions of Act No. 13 of 1972 In these circumstances, late Sitish Chandra Agarwal prayed for ejectment of opposite party No. 2. After due opportunity to the parties, the Munsif East decreed the suit by judgment dated 7.3.1987. The grounds which were agitated by the plaintiff before the trial court were that the defendant/opposite party No. 2 has filled to pay Government taxes and has changed the user of the shop which was given only for "PAN BIRI' to the sweetmeat shop and was causing damage to the property and creating menace for other tenants. Besides the above two grounds, it has also been agitated before the trial court that since the opposite party has taken his two brothers Lal Prasad who is younger to the opposite party No. 2 and Bhagwati Prasad who is elder to him and since they are not his family members, in the process, the opposite party No. 2 has contravened and violated the conditions of the agreement and provisions of Act No. 13 of 1972. In these circumstances, it was prayed that the opposite party No. 2 be evicted and the suit be decreed for the arrears of rent as well. All these grounds have been reiterated by the learned counsel for the petitioners and also submitted that now the defendant/opposite party No. 2 has again changed the business In the name and style Tulsi Watch and Electronics House' and this fact has been brought before this Court by way of an amendment to which no reply has been filed by the respondents.
4. Sri G. K. Mehrotra, learned counsel for the petitioners further submitted that the brothers are not covered under the definition of 'family' as given in Section 3 (g) of Act No. 13 of 1972 which reads as follows :
"(g) 'Family' in relation to a landlord or tenant of a building, means his or her-
(i) spouse, (ii) male lineal descendants,
(iii) such parents, grandparent and any unmarried or widowed or divorced or judicially separated daughter or daughter of a male lineal descendants as may have been normally residing with him or her, and includes, in relating to a landlord, any female having a legal right of residence in that building."
5. The learned counsel for the petitioners has relied upon Mahendra Sen Jain and another v. Ratanlal and another. 1978 (4) ALR 644 ; Ravindra Kumar Chopra v. IIIrd Additional District Judge, Mathura and others, 1984 (1) ARC 387, wherein it has been held that the brother does not come within the definition of family.
6. Sri Umesh Chandra. Senior Advocate appearing on behalf of the opposite party No. 2 submitted that there is no illegality in the judgment passed by the revisional court. As finding of the revisional court with regard to arrears of taxes are concerned, no Government tax was imposed, therefore, the petitioner was not liable to pay except the enhancement of 25%. With regard to the second ground regarding the change of user, it has been submitted that initially, the shop in dispute was taken on rent in view of the agreement between the parties for running a 'PAN BIRI etc. shop and if the petitioner has started making sweetmeat, it will cover by the word 'etc.', It has been further submitted that the change of business will not give the petitioner right to get the opposite parly No. 2 evicted from the shop in dispute. In support of his contention, the learned counsel for the opposite party No. 2 relied upon Gurdial Batra u. Raj Kumar Jain, AIR 1989 SC 1841, wherein it has been held that small change of user within the definition of Section 13 (2) (ii) (b)' of East Punjab Urban Rent Restriction Act (3 of 1949) so as to give a cause of action to the landlord to seek eviction of the tenant.
7. The learned counsel for the opposite party No. 2 has further relied upon Mohan La! u. Jai Bhagwan. JT 1988 (2) SC 61, wherein it has been held :
"The building was rented for purpose of carrying on a business, using it for another business, It will not in any way impair the utility or damage the building and this business can be conveniently carried on in the said premises. There was no nuisance created."
8. The next contention of Sri Umesh Chandra is that the petitioner was one of the members of the Hindu Joint Family and the business was being carried on by the brothers as member of the Hindu Joint Family and even the shop which was taken on rent in view of the agreement was for Hindu Joint Family.
9. The learned counsel for the petitioner in the rejoinder has submitted that at subsequent event during the pendency of the writ petition, the petitioner who had earlier entered into partnership without the consent of the landlord started business of sweetmeat shop and now has changed the same by electronic items under the name and style Tulsi Watch and Electronics House' inaugurated on 16.10.1990. Invitation Cards were issued for the same for and on behalf of Lalta Prasad Gupta a stranger to the landlord. This fact has already been brought on record some time in the month of January, 1991. However, the same has not been controverted by the defendant opposite party No. 2. The learned counsel for the petitioner has submitted that subsequent event brought on record should be looked into and in this connection, he has relied upon Pasupuleti Venkataswarlu v. Motor and General Traders.(1975) I SCC 770 ; M/s. Variety Emporium v. R. M. Mohd, Ibrahim Naina, AIR 1985 SC 207. In the case of Pasupuleti Venkateswarlu v. Motor and General Traders, (1975) 1 SCC 770, it has been held that :
"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 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 violated, with a view to promote substantial Justice--subject, of course, to the absence of other disentitling factors or just circumstances."
It has been further held in the said case :
"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."
10. In M/s. Variety Emporium u. V. R. M. Mohd. Ibrahim Naina, AIR 19S5 SC 207, It has been held :
"16. No authority is needed for the proposition that, in appropriate cases, the Court must have regard to events as they present themselves at the time when it is hearing the proceeding before it and mould the relief in the light of those events. We may, however, draw attention to a decision of this Court in Hasmat Rai u. Raghunath Prasad, (1981) 3 SCR 605 : AIR 1981 SC 1711, the ratio of which may be stated thus :
When an action is brought by a landlord for the eviction of a tenant on the ground of personal requirement the landlord's need must not only be shown to exist at the date of the suit, but it must exist on the date of the appellate decree, or the date when a higher Court deals with the matter. During the progress and passage of proceeding from Court to Court, if subsequent events occur which, if noticed, would non-suit the landlord, the Court has to examine and evaluate those events and mould the decree accordingly. The tenant is entitled to show that the need or requirement of the landlord no more exists by pointing out such subsequent events, to the Court, including the appellate court. In such a situation, it would be incorrect to say that as a decree or order for eviction is passed against the tenant, he cannot invite the Court to take into consideration subsequent events. The tenant can be precluded from so contending only when a decree or order for eviction has become final....."
"It is well-settled now that in a proceeding for the ejectment of a tenant on the ground of personal requirement under a statute controlling the eviction of tenants, unless the statute prescribes to the contrary, the requirement must continue to exist on the date when the proceeding is finally disposed of either in appeal or revision, by the relevant authority. That position is indisputable."
11. In Mahabir Prasad v. Vlth Additional District Judge, Gonda and others. 1993 111) LCD 861, this Court has also come to the conclusion by relying upon certain judgments of the Hon'ble Supreme Court that the subsequent event coming into existence during the pendency of the writ petition can be taken Into account. In the light of the view taken by Hon'ble Supreme Court, it is crystal clear that the subsequent events can be taken into account under Article 226 of the Constitution of India.
12. In the present case, since the tenant/defendant No. 2 had taken his two brothers, namely. Bhagwati Prasad and Lalta Prasad in his business in the disputed premises therefore, it will be deemed to have fallen vacant within the meaning of Section 12 (1) (b) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act.
13. In Mahendra Sen Jain and another v. Ratanlal and another, it has been held :
"Section 25 lays down that no tenant shall sublet the whole of the building under his tenancy without the written permission of the landlord and of the District Magistrate, The explanation appended to this section says that for purposes of this section where the tenant ceases within the meaning of clause fbj of sub-section (1) or sub-section (2) of Section 12 to occupy the building or any part thereof, he shall be deemed to have sublet that building or part thereof. In view of the aforesaid provisions the disputed premises which will be deemed to have fallen vacant under Section 12 (1) (b) will be deemed to have been sublet to defendant Nos. 2 and 3 and the defendants were liable to eviction."
In the circumstances, as mentioned above, the premises in dispute will be deemed to have fallen vacant under the provisions of the Act. Similarly, this Court in the case in Ravindra Kumor Chopra v. IIIrd Addl District Judge, Mathura and others. 1984 (1) ARC 387 has held that the brother does not come within the definition of 'family'.
14. From a perusal of Section 3 (g) of Act No. 13 of 1972, it is obvious that the family in relation to a landlord and tenant of the building consists of his or her spouse, male lineal descendants, such parents, grandparents and any unmarried or widowed or divorced or judicially separated daughter or daughter of a male lineal descendant as may have been normally residing with him or her.
15. Admittedly, the relation of the petitioner and the opposite party-is of landlord and tenant under the provisions of Act No. 13 of 1972. Further with regard to the argument of the counsel for the defendant that the shop in question was taken on rent for the business of the Hindu Joint Family and the same was being carried on by brothers as such. 1 do not find any document on record to show that the agreement entered upon between the landlord and the tenant was, in fact, entered by the tenant on behalf of the Hindu Joint Family. It is Interesting to note that the defendant No. 2 is not the eldest brother who could have been 'karta' of the family. Further. I do not find anything on record to show on behalf of the defendant that the defendant No. 2 was 'karta' of the family and, therefore, he had entered into agreement with the landlord with regard to the shop in question. 'Karta' in the Hindu Joint Family is always the head of the family. According to Section 236 of the Hindu Law, the property belonging to a joint family is ordinarily managed by the father or other senior member for the time being of the family. The person who manages is known as Manager and in Hindu Law, the said manager is called 'karta'. After the death of the father of the defendant, in normal course, it is the elder brother who is the karta. No special circumstance has been placed on record or in the argument indicating therein that in the presence of the elder brother, the petitioner was made the karta of the family. There is a definite finding by the trial court showing that the brothers were Included in business later on. The revisional court has discarded the argument with regard to inclusion of two brothers as tenant on the ground that they were members of the family of the petitioner. I am of the opinion that the revisional court has overlooked the definition as indicated under Act No. 13 of 1972. From a perusal of the agreement between the parties, it.
cannot be said that the opposite party No. 2 has entered into an agreement on behalf of Hindu Joint Family. Further, it is admission of the defendant No. 2 before the trial court on oath that he had taken the shop in question absolutely for himself. It is also interesting to note that on the one hand, the petitioner claims to be in the Hindu Joint Family and he claims that the shop was taken for the use of the Hindu Joint Family but on the other hand, according to him, he had entered into an agreement of partnership with his brothers to run the shop which was also changed from time to time and has also admitted that at a particular time, he was having his own business in shop in question and his brothers had different business at different places.
16. The tenant has totally changed the use of shop in question. Initially, it was taken for PAN BIR1. Thereafter, it was changed to sweet shops and now again it has been changed in electronic shop. Such a change cannot be said to be small change of user in the eyes of law.
17. In what has been stated hereinabove, I am of the opinion that the revisional court erred in quashing the judgment of the trial court dismissing the suit of the plaintiff. The writ petition is accordingly allowed, the judgment of the revisional court is quashed and the trial court is maintained.