1. Heard Sri P.N. Saxena, Senior Advocate, assisted by Sri Som Narain, Advocate for the petitioners and Sri Tarun Agarwal, Advocate for the respondent.
2. The dispute relates to a shop situated at Dal Mandi, Meerut Cant whereof the petitioners are tenants and the respondent is the landlord. The petitioner no. 2, Jugal Kishore, is proprietor of petitioner no. 1 M/s Kanhayia Mal Kasturi Lal, a proprietorship firm. He died during pendency of the present writ petition and has been substituted by his legal heirs.
3. The writ petition is directed against the Judgment and order dated 9.5.2001 (Annexure No.14 to the writ petition) passed by the 13th Additional District Judge, Meerut allowing Appeal No. 29 of 1998 of respondent-landlord and setting aside Judgment & order dated 18.12.1997 passed by the Prescribed Authority.
4. The respondent-landlord filed an application, i.e., P.A. Case No. 140 of 1991 under Section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the 'Act 1972') stating that he along with his father Kailash Chand and brother Sri Narain Prasad has been running a business in the name and style of M/s Kailash Chandra and Sons at Dal Mandi, Ganj Bazar, Meerut Cantt dealing in sale and purchase of edible oils etc. The landlord's father, Sri Kailash Chand, died in February 1991 and thereafter earlier firm was dissolved. A new firm in the partnership of applicant-landlord and his brother Narain Prasad came into existence which continued business of sale of edible oils etc. in the name and style of firm 'M/s Kailash Chand and Sons'. Subsequently, however, some differences had arisen between the two brothers and since applicant-landlord's mother was also supporting respondent-landlord's brother Narain Prasad, they realised that running of partnership business would not be conducive. Both brothers came to an understanding that as soon as applicant-landlord finds any other accommodation to run his own independent business, the partnership would cease. Since respondent-landlord had no other accommodation to commence his own independent business though possesses enough experience of business, i.e., dealing in oil, sugar etc. he, therefore, needs shop in question to be vacated by petitioner-tenant so that he (landlord) may commence his own independent business therein. He also alleged that tenant has another shop no. 72 Dal Mandi, Sadar, Meerut and property at 195 Police Street, Sadar, Meerut which the tenant is using as Go down though mostly the shop remains vacant and he can shift his business thereat. This application was filed in July, 1991.
5. The petitioner-tenant contested application by filing his written statement dated 14.5.1993 wherein, besides others, he said that respondent-landlord had another property at Durga Bhawan, Tilak Bazar, Sadar Meerut Cantt. whereat he is carrying on business in the name and style of 'M/s Singhal Agencies'. Therefore, his contention that he has no other accommodation is incorrect. The tenant also disputed the story of differences between two brothers and the mother. Regarding accommodation said to be possessed by tenant, it is pleaded that shop no. 72, Dal Mandi, Sadar, Meerut was in possession of Jugal Kishore, son of the tenant, and his brother-in-law who are running a partnership business thereat. The shop is not vacant. Regarding property no. 195, Police Street Sadar, it was pleaded that the same was not in possession of petitioner-tenant but in the possession of Sri Darshan Lal, brother of petitioner-tenant.
6. The application of landlord was rejected by Prescribed Authority vide Judgment and order dated 18.12.1997 recording findings on both the aspects namely bona fide and genuity of personal need and also about comparative hardship, against him (respondent-landlord). Thereafter, matter was taken in Misc. Appeal No. 39 of 1998. The appellate court, by means of the impugned Judgment, has allowed appeal of landlord and set aside Prescribed Authority's Judgment and order dated 18.12.1997. It is this appellate order which has been impugned in the present writ petition.
7. It is stressed in the writ petition by petitioner-tenant that the respondent-landlord had an alternative accommodation available with him where his business under the title 'M/s Singhal Agencies' was going on. The respondent landlord's mother Smt. Keshav Devi was very old and not running the said business which came to be wound up in 1996 but appellate court has considered this aspect in a most illegal and arbitrary manner and has proceeded on the basis of sheer surmises and conjectures recording his own imaginary findings. It is also urged that the building in which M/s Singhal Agencies being run, was a joint property owned by family including the landlord whereat he could have started his own independent business but this aspect has been totally misappreciated by the appellate court.
8. In respect of petitioner's allegation that shop in which M/s Singhal Agencies was being run was a joint family property, nothing specific has been said by respondent-landlord in para 22 of his counter affidavit, though he has denied averments made in para 32 of the writ petition but thereafter has made vague assertions. The stress on the part of respondent-landlord is that application having been filed in 1991, the facts as stood at that time, ought to be considered and not the subsequent events.
9. In the rejoinder affidavit, in para nos. 12 and 16, it is reiterated that the premises in which M/s Singal Agencies was being run, is lying closed for several years. A supplementary affidavit has been filed by petitioner-tenants placing on record copy of the plaint of Suit No. 24 of 1979 filed by respondent-landlord against his father, mother and brother, seeking a declaration that he is owner and in possession of the property at House No. 32, situated at Dal Mandi, Sadar, Meerut Cantt to show that from the perusal of aforesaid plaint, it is evident that in respect of rest of the family property, there is no partition amongst various members of family. A copy of ex-parte Judgment in the aforesaid suit decided on 3.4.1980 has been placed on record wherein a declaration has been made that the respondent-landlord is owner and in possession of the property at House No. 32 situated at Dal Mandi, Meerut Cantt. Besides, copy of partnership deed of 'M/s Kailash Chand and Sons', executed between respondent landlord and his brother Narain Prasad has been placed on record with the supplementary counter affidavit filed by respondent landlord, replying certain averments made in the rejoinder affidavit.
10. Sri P.N. Saxena, learned Senior Advocate, advancing his submission on behalf of petitioner-tenants, has mainly raised three issues:-
(1) An alternative accommodation was already available with the respondent-landlord where his mother was running business in the name and style of 'M/s Singhal Agencies' which came to be closed in 1996. Thereafter, the respondent-landlord could have started his own business thereat but this aspect has been dealt with by the appellate court in a most illegal and arbitrary manner.
(2) The landlord's mother also died in 2007, i.e., during pendency of the case. Therefore, whatever obstruction the respondent-landlord had or seems to exist, has disappeared. His requirement can be fully satisfied by the alternative accommodation available to him. These subsequent events are liable to be considered and application for release of shop in question deserves to be rejected.
(3) The appellate court ought to have considered partial release of accommodation in question instead of allowing release application in its entirety.
11. Sri Tarun Agarwal, Advocate appearing on behalf of respondent landlord, on the contrary, submitted that in 1991 when application was filed, no alternative accommodation was available to landlord. M/s Singhal Agencies was a proprietorship firm of his mother who was doing her own independent business. Therefore, it cannot be said that an alternative accommodation was available to respondent landlord. He, however, did not dispute that M/s Singhal Agencies stopped business sometime in 1996, and in 2007, mother of respondent-landlord died but, contended that these facts would not distract the requirement of landlord for getting shop in question vacated for installing/running his own business which is the discretion and selection of landlord about the place. He has right to determine suitability of a place for running his business and cannot be controlled or dictated by tenant or anybody else. The respondent landlord did not find any other accommodation suitable and better than the accommodation in question. Therefore, the subsequent events would not dilute his requirement. He relied on Apex Court's Judgment in Prativa Devi Vs. T.V. Krishnan, (1996) 5 Supreme Court Cases 353.
12. Having considered rival submissions and perusing the record and also authorities cited at the Bar, I am clearly of the opinion that the impugned appellate court's Judgment cannot sustain. This writ petition, therefore, has to be allowed. My reasons for forming the above opinion are as under:
13. It cannot be doubted that the landlord has privilege to determine as to how and in what manner he shall live, arrange his affairs and do his business etc. He has to settle his life in his own way. It cannot be guided, controlled or restricted by any third person including court also. A tenant or the court cannot direct the landlord how and in what manner he should live or arrange his affairs. There is no law which can restrict a landlord from beneficial enjoyment of his own property.
14. In Prativa Devi (Supra), the Apex Court said that the landlord is the best judge of his residential requirement. He has a complete freedom in the matter. It is no concern of the courts to dictate to the landlord as to how and in what manner he should live or to prescribe for him a residential standard of his own. Therein the High Court had considered the age of landlord and doubted her need on the ground that in such advanced age, she would be requiring somebody to take care and therefore should live with other family members instead of alone. The Apex Court observed that High Court is rather solicitous about the age of the appellant and thinks that because of her age she needs to be looked after. That is a lookout of landlord and not of High Court. Apex Court disapproved the approach of High Court and observed:
"We fail to appreciate the High Court giving such a gratuitous advice which was uncalled for. There is no law which deprives the landlord of the beneficial enjoyment of his property."
15. Similarly, in R. C. Tamrakar Vs. Nidi Lekha AIR 2001 SC 3806 the Court in para 10 and 11 said:
"10. Law is well settled that it is for the landlord to decide how and in what manner he should live and that he is the best judge of his residential requirement. In deciding the question of the bonafide requirement, it is unnecessary to make an endeavor as to how else landlord could have adjusted himself.
11. Though the son of the landlady is a doctor and has constructed his own house, the landlady wants to stay in the suit premises. It is not the case of the tenant that landlady has any other suitable accommodation. Therefore, the High Court rightly set aside the finding of the First Appellate Court holding that landlady could not be compelled to reside with her son as her case was that she wanted to stay by herself in the suit premises because of her health condition and the climatic condition of that place suit her."
16. When a landlord seeks eviction of a tenant on account of his personal need, the genuity and bona fide of the claim set up by the landlord has to be seen as prescribed in statute. A landlord cannot take advantage of lack of bargaining power of tenant by indulging in the oppressive activities of putting in and out tenant for the sole objective of getting an exorbitant amount of rent. It is this conduct of landlords which has been attempted to be subserved by the Legislature in enacting Rent statutes throughout the country including the State of U.P. Whether it is the Act of 1947 or the present statute, i.e., the Act 1972, the basic objective for enacting the two statutes is same. Therefore, a balance has to strike between the rights and privilege of landlord as also statutory protection available to tenant against any possible oppressive and exploitative attitude of a landlord. It is, in this context, Section 21 while conferring a right upon the landlord to seek eviction of a tenant from any accommodation and hand over to him on the ground of personal need, has put a restriction that before doing so, the competent authority, i.e., the Prescribed Authority itself must be satisfied that the alleged need of landlord is genuine and bona fide.
17. Some of the factors which may be helpful for determining and finding out whether the need of landlord is genuine or bona fide, have been enumerated in Rule 16 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 (hereinafter referred to as the "Rules, 1972"). The accommodation in question being not residential one, the factors enumerated in sub Rule (2) of Rule 16 would be relevant in the present case. The availability of alternative accommodation to tenant where he can settle business without substantial loss is one of such considerations which may help the landlord to satisfy the Prescribed Authority about the genuity and bona fide of his ground of eviction, i.e., personal need. Per se Rule does not provide that the availability of alternative accommodation with the landlord can be a relevant factor to determine and find out whether his need is genuine or not. It cannot be doubted that the landlord if has any other accommodation which may satisfy his need, but intends to evict a sitting tenant, and is not inclined to avail the said alternative accommodation but insist upon eviction of tenant, it would be a relevant consideration to indicate lack of bona fide in claiming for personal need.
18. In Sri Chandra Gupta Vs. 18th Additional District Judge, Meerut, 1999 (1) ARC 1988, the Court held that landlord's need can be validly doubted if he is possessed of an alternative accommodation and the same is suitable for the purpose for which tenanted accommodation is asked for. In the Prativa Devi (Supra), the Apex Court held that mere availability of alternative accommodation to the landlord is not sufficient but it must suitably satisfy his requirement and he must have a legal right to such accommodation. These authorities undoubtedly demonstrate that the landlord if possesses a suitable accommodation to serve his purpose with a right over it, this fact would be relevant to find out the genuity of his claim and also whether in such a case should a sitting tenant be uprooted.
19. In the present case, there is no manner of doubt that in 1991 when the application for release was filed by landlord, he did not possess any alternative vacant accommodation available to him to commence his own independent business. On this aspect, the finding recorded by appellate court, in my view, warrants no interference particularly when it is a concurrent view taken by both the courts below that in the non-residential accommodation, situated at Durga Bhawan, Tilak Bazar, Sadar Meerut Cantt. a business in the name and style of M/s Singhal Agencies was being carried out by landlord's mother and so long as the said business was going on, even if was a joint Hindu Family, it cannot be said that a vacant alternative accommodation was available to landlord so as to defeat his claim. The fact that at its commencement of proceedings, one could not have doubted his pleading that he needs accommodation in question for his personal use, i.e. for installing his own independent business, but that is not enough. It is not in dispute and has been held by both the courts below that the business run by M/s Singhal Agencies at the aforesaid accommodation came to a halt in 1996. The shop remained closed thereafter. That being so, it has not been attempted to explain by landlord in any manner as to how and why such accommodation after stoppage of business by M/s Singhal Agencies ,could not have been used by him. He has also not stated and no evidence has been adduced to show that the said accommodation was not suitable to satisfy his requirement, i.e., the purpose, wherefor he wanted the accommodation in question vacated.
20. The subsequent events further show that in 2007, mother of respondent-landlord also died who was earlier carrying on business in the name and style M/s Singhal Agencies at the aforesaid alternative accommodation. What could have prevented respondent landlord in continuing his business thereafter in the aforesaid accommodation is also not clarified or explained anywhere. These events, i.e, stoppage of business of M/s Singhal Agencies in 1996 and death of respondent landlord's mother in 2007 are not in dispute. It is not stated before this Court, at all, that there was any obstruction or otherwise justification for landlord not to utilize the aforesaid accommodation for commencing his own independent business. It is, in this context, and to overcome the difficulty arising out of the subsequent events of 1996 and 2007, the argument advanced by respondent-landlord is that the court should not look into subsequent events but he confined his submission to the extent that judicial review is permissible only to what actually existed in 1991 when the application under Section 21(1)(a) was filed.
21. To my understanding, this wide argument of Sri Tarun Agarwal, Advocate, lacks substance in its entirety. The submission that the subsequent events would not be or should not be looked into by the court at all cannot be accepted. Such subsequent events which may result substantial change in the situation or which may result in disappearing real cause of action have to be considered and cannot be ignored. The question as to when 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.
22. 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."
23. 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)
24. 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."
25. In Gaya Prasad Vs. Pradeep Srivastava 2001 (1) ARC 352 (SC), 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.
26. This matter was further examined in detail in Kedar Nath Agrawal and another Vs. Dhanraji Devi and another 2004 (4) AWC 3709 (SC) 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.
27. In the present case, in my view, the appellate court has not looked into this aspect of the matter at all and in any case, in correct perspective. These subsequent events, if correct, could have material bearing on the question of subsistence of the very grounds set up by the landlord. The appellate court ought to have examined these facts and their consequences. Having failed to do so, it has completely misdirected itself. Therefore, the impugned Judgment cannot sustain.
28. The writ petition is accordingly allowed. The impugned appellate court's Judgment dated 9.5.2001 is hereby set aside. The matter is remanded to the appellate court to look into the above aspects of the matter and consider and decide respondent landlord's appeal afresh. It shall decide the appeal, in the light of the observations made hereinabove, expeditiously, and in any case, within a period of three months from the date of issuance of certified copy of this order subject to other business of the court.
29. There shall be no order as to costs.
Order Date :- 27.9.2012 Ram Murti