"Crucial date for release of the accommodation in a rent case on the ground of bonafide need of the landlord, effect of the death of the landlord during pendency of writ petition and legality of direction given by the Appellate Court to the landlord to provide alternative accommodation to the tenant, are the main questions involved in this petition."
1- Heard Sri Pramod Kumar Jain, learned Senior Advocated, assisted by Sri Rishi Kant Singh, learned counsel for the petitioner and Sri Sudhanshu Kumar holding brief of Sri Swapnil Kumar, learned counsel for the defendant-tenant/respondent.
Order on Substitution Application No.03 of 2019 2- The sole petitioner Sri Kishan Chandra has died leaving behind his heirs and legal representatives as mentioned in the prayer clause of the application.
3- Learned counsel for the defendant-tenant-respondent has no objection to the aforesaid substitution application. Therefore, the Substitution Application is allowed. Necessary correction in the array of parties be carried out.
Order on Writ Petition FACTS OF THE CASE 4- Briefly stated facts of the present case are that the original plaintiff Kishan Chandra was the owner and landlord of the disputed house situate in Qasba Jalesar District Etah, measuring 14' x 38''. In the said house, the entire ground floor portion, except a shop measuring 3' 9'' x 10' 3'', was occupied by the father of the petitioner, namely, Sri Prem Chandra as tenant at a monthly rent of Rs.20/-. The aforesaid` other shop measuring 3' 9''x10' 3'' was occupied by another tenant Sri Girraj Kishore.
5- The original plaintiff Kishan Chandra was carrying on his business of cloth from a tenant shop which was owned by one Sri Hari Om, who filed a release application under Section 21 of the U.P. Act XIII of 1972 being Case No.47 of 1983, which was decreed and the appeal filed by the original plaintiff/petitioner was dismissed and the shop has been vacated by the plaintiff. Thus, the petitioner was in the need of a shop to start his business.
6- The original tenant Prem Chandra died and the tenancy of the disputed shop was succeeded by his sons, namely, Padam Chandra Jain, Subhash Chandra Jain, Dinesh Chandra Jain, one daughter Smt. Shailesh Jain and the widow Smt. Prabhawati Devi.
7- On the ground of bonafide need of the disputed shop for his business and also for employment of his sons, the original plaintiff/petitioner filed P.A. Case No.02 of 1994 (Kishan Chandra Jain v. Padam Chandra Jain and others), which was decreed after about 20 years by judgment dated 23.2.2006, passed by the Prescribed Authority/Civil Judge (Junior Division), Etah and the disputed shop was directed to be vacated.
8- Against the aforesaid judgment dated 22.3.2006 one of the defendant-tenant/respondent no.1 filed Rent Control Appeal No.02 of 2006 (Dinesh Chandra v. Kishan Chandra and others), which was conditionally allowed by the impugned judgment dated 23.8.2014, passed by the District Judge, Etah directing as under :
"यह रेन्ट कन्ट्रोल अपील अंशतः सशर्त स्वीकार की जाती है तथा विद्वान नियत प्राधिकारी/सिविल जज (जुनियर डिवीजन), एटा द्वारा पारित आदेश दिनांकित 23-02-2006 अंशतः इस प्रकार संशोधित किया जाता है कि भवन स्वामी/प्रत्यर्थी, अपीलार्थी/किरायेदार को विकल्प में रामगोपाल की किरायेदारी वाली दुकान जिस पर चार मंजिल दुकान की इमारत बनी है अथवा अपनी पत्नी व अपने पुत्र प्रदीप के स्वामित्व वाली दुकान जिसमें चार मंजिल भवन बन रहा और उसमें दो मंजिल पूर्ण हो चुकी है, में से कोई एक दुकान भूतल पर अपीलार्थी/किरायेदार को मार्केट रेट के किराये पर दो माह के अन्दर उपलब्ध करा दे तो अपीलार्थी/किरायेदार प्रश्नगत दुकान को रिक्त करके उसका कब्जा भवन स्वामी/प्रत्यर्थी को दे दे। यदि भवन स्वामी इस विकल्प को स्वीकार नहीं करता है तो यह अपील स्वीकार समझी जायेगी।"
9- Aggrieved with the aforesaid impugned judgment, the original plaintiff/landlord has filed the present writ petition.
10- During pendency of the petition, the original plaintiff Kishan Chandra died on 08.01.2019, leaving behind his widow Vijay Lakshmi, four sons, namely, Pradeep Kumar, Sanjay Kumar, Mukesh Kumar and Rajnedra Kumar and five daughters, namely, Km. Rajni, Km. Alta, Km. Pinki, Km.Bobby and Rupesh Kumari who have been substituted.
11- The P.A. Case No.47 of 1983 filed by the original plaintiff for release of the small shop in occupation of the tenant Giriraj Kishore was allowed by the Prescribed Authority. The tenant Girraj Kishore brought the matter up to this Court by filing Writ-A No.49335 of 2014 (Girraj Kishore v. Kishen Chandra) which was dismissed by this Court by order dated 15.9.2014 holding as under:
"Heard Sri A.K. Gupta, learned counsel for the petitioner. Sri P.K. Jain, Senior Advocate, assisted by Sri Rishi Kant Singh, learned counsel has appeared for the respondent.
The petitioner has filed this writ petition challenging the judgments and orders of the courts below allowing the release application of the respondent under Section 21(1)(a) of the U.P. Act No.13 of 1972 (hereinafter referred to as the Act) whereby the shop in dispute has been ordered to be released in favour of the respondent after holding his need to be bona fide and that he would suffer comparatively more hardship than the petitioner.
The submission of Sri A.K. Gupta, learned counsel for the petitioner is that there are two shops. One bigger and the other smaller which is in dispute. The respondent had applied for the release of both the shops. The release application in respect of both of them have been allowed but the appellate court while allowing the release application in respect of the bigger shop has issued direction that the respondent will provide the tenant of the said shop with an alternative accommodation elsewhere on the prevailing market rent whereas no such direction while releasing the smaller shop in dispute has been given though both the judgments are identical and similarly worded.
I have perused the impugned judgments and orders of the courts below.
In allowing the release application under Section 21(1)(a) of the Act it is not incumbent upon the court to direct for providing any alternative accommodation to the tenant. No provision of law has been shown where the tenant can get an alternative accommodation in the event the application of the landlord for the release of the shop has been allowed under Section 21(1)(a) of the Act.
The argument that direction to this effect has been given in favour of the tenant of the bigger shop is of no substance. First for the reason that there is no provision to such an effect. Secondly, the case of the petitioner is different from that of the tenant of the other shop. The petitioner is found to be having an alternative accommodation where he can shift his business. Therefore, it was not considered proper and necessary to issue any direction for providing some alternative accommodation to him.
Sri A.K. Gupta has argued that the appellate court in recording the above finding has not considered the affidavit of the petitioner which was before the prescribed authority that he has no alternative shop with him.
The prescribed authority in its judgment on consideration of the entire evidence has recorded a finding that the petitioner is in possession of a one another shop apart from the shop in dispute which is on rent and that he is having two residential houses which are big enough with sufficient rooms vacant and as such has accommodation available with him to easily shift his business.
In view of above finding of the prescribed authority, it is clear that the petitioner is having an alternative accommodation and therefore, it was not necessary for the appellate court to have issued any direction for providing any additional alternative accommodation to the petitioner.
Sri Gupta, in the end prayed for some reasonable time to vacate the shop in dispute.
Sri Jain, though opposes the prayer but leaves it upon the discretion of the court to grant some reasonable and suitable time if necessary.
In view of above, four months from today is allowed to the petitioner to vacate the shop in dispute provided an undertaking on affidavit is given before the prescribed authority within a period of one month that the petitioner would vacate and handover peaceful possession of the shop in dispute within time allowed as above and at the same time pays all the upto date dues.
Accordingly, the writ petition has no merit and is dismissed with the above condition. "
( Emphasis supplied by me) SUBMISSIONS-
12- Sri P.K. Jain, learned counsel for the plaintiff-landlord/petitioner submits that during pendency of the release application, the sons of the original plaintiff, namely, Rajendra Kumar and Pradeep Kumar purchased some accommodation in which they raised certain constructions and are occupying those premises for their self use. The original plaintiff was the owner of half portion of the shop under tenancy of Sri Ram Gopal, which was a very small shop measuring 5' x 9' 8" as has also been stated in paragraph-4 and 24 of the writ petition which has not been specifically denied by the defendant-tenant/respondent in paragraph nos. 4 and 16 of the counter affidavit. After the said shop was subsequently vacated by the tenant Ram Gopal, the original plaintiff's son Rajendra Kumar is carrying on business in it after reconstruction. In the inner side of the said shop a stair case has been made to go on the upper floor as reflected in the photographs also. There is no separate passage for the upper floor. That apart, now there are ten co-owners and landlords of the shop vacated by Sri Ram Gopal. Thus, the appellate court has wrongly directed to provide an alternative accommodation to the defendant-tenant/landlord-respondent no.1 either in the building (Ram Gopal's shop) or in the building owned by Pradeep Kumar or Rajendra Kumar. The lower court has not recorded any finding to reject the bonafide need of the plaintiff. There is no provision under the Rent Control Act, which empowers the court to issue such a direction as given in the impugned judgment. Such a direction is in conflict with law laid down by this Court in Girraj Kishore's case (supra). Except a very small portion, the entire ground floor portion has been occupied by the defendant-tenant/respondent no.1, while the plaintiff was having no place for his business. He, therefore, submits that the impugned judgment of the appellate court deserves to be set aside and the judgment of the trial court deserves to be restored.
13- Sri Swapnil Kumar, learned counsel for the defendant-tenant/respondent no.1 submits that only the defendant-tenant/respondent no.1 is occupying the disputed shop. The other defendant-tenant/respondent nos. 2, 3, 4 and 5 are not carrying on the business from the disputed shop. Bonafide need of the original plaintiff came to an end on account of his death on 08.01.2019. The original plaintiff and his two sons have several accommodation and, therefore, the appellate court has rightly directed that the disputed shop be released subject to the condition that the plaintiff may provide an alternative accommodation to the defendant-tenant/respondent no.1. The plaintiffs have constructed four storied building on the accommodation vacated by the tenant Ram Gopal and, therefore, the court below rightly directed for providing a shop to the defendant-tenant/respondent in the aforesaid four storied building.
14- The small shop of the tenant Girraj Kishore, adjoining the disputed shop has also been vacated. Therefore, there is no need of the plaintiff for the disputed shop. The sons and daughters of the original plaintiff have become the co-owner and landlord of the disputed shop. Thus, since, the sons themselves have become the owner and landlords of the disputed shop, therefore, the need of the original plaintiff cannot be looked into.
DISCUSSION AND FINDINGS-
15- I have carefully considered the submissions of the learned counsel for the parties.
16- There is no dispute of landlord-tenant relationship between the plaintiff-petitioner and the defendants-respondents. There is also no dispute that the original plaintiff/petitioner was carrying on business in a rented shop which was got vacated by its owner and landlord and, therefore, he was in bonafide need of the disputed shop to carry on his business.
Reg. Building of Ram Gopal's Shop 17- The original plaintiff owned the disputed shop and half portion in the shop under tenancy of one Ram Gopal. The other half portion of the shop of Ram Gopal was subsequently, purchased by the eldest son of the original plaintiff, namely, Rajendra Kumar. Thus, Rajendra Kumar and the original plaintiff became co-onwer of the disputed shop which is a four storied building admittedly measuring 5' 9" x 18' and from inside the shop on the ground floor a stair case has been made for approach to the upper floor. This shop being very small having no separate access and partly owned by the aforesaid Rejendra Kumar, who is carrying on business from it, could not have been directed by the court below for providing a portion in it to the defendant-tenant/petitioner as an alternative accommodation for vacating the disputed shop of the plaintiff Kishan Chandra.
Reg. Building owned by the plaintiff's son Pradeep Kumar 18- So for as the other building owned by the other son of the plaintiff, namely, Sri Pradeep Kumar is concerned, it has not been disputed before me that Sri Pradeep Kumar is carrying on his business from it. He is co-owner. The other co-owner is the wife of the original plaintiff. Therefore, there was also no occasion for the court below to issue direction for providing a shop in the accommodation owned by Sri Pradeep Kumar.
Bonafide Need 19- It could not be established by the defendant-tenant/respondent no.1 that the plaintiff was having no bonafide need for the disputed shop. The release application was filed by the plaintiff for his bonafide need for starting cloth business and also for the employment of his sons. Finding of fact has been recorded by the Prescribed Authority that the plaintiff is in bonafide need of the disputed shop. This finding of fact has not been set aside by the appellate court by the impugned judgment in Rent Control Appeal No.02 of 2006. Therefore, findings of fact recorded by the Prescribed Authority in P.A. Case No.02 of 1994 on the point of bonafide need, requires no interference and is upheld.
Crucial date for bonafide need in an application for release and effect of subsequent event of death of landlord.
20- The submission in this regard made by the learned coiunsel for the tenant-respondent, has no substance. In the case of Kamleshwar Prasad v. Pradumanju Agarwal (Dead) by LRs., (1997) 4 SCC 413 (Paragraph No.3), Hon'ble Supreme Court laid down the law that the fact that the landlord needed premises in question for starting a business in the eye of law must be the day of application for eviction which is the crucial date when the tenant incurred the liability of being evicted from the premises. Even if the landlord died during pendency of the writ petition in the High Court, the bonafide need cannot be said to have lapsed as the business in question can be carried on by his widow or any other son.
21- In Phul Rani & Ors. vs Naubat Rai Ahluwalia, 1973(1) SCC 688, a two Judges Bench of Hon'ble Supreme Court framed three questions. While answering one of the questions, it held that the requirement of the occupation of the other members of the family of the original landlord was his personal requirement and ceased to be the requirement of the members of his family on his death. The law so laid down in Phul Rani's case (supra), was over ruled by a larger bench in Shantilal Thakordas & Ors vs Chimanlal Maganlal Telwala 1976 (4) SCC 417. The Larger Bench in Shantilal Thakordas & Ors. (supra) held as under:
"If the law permitted the eviction of the tenant for the requirements of the landlord "for occupation as a residence for himself and members of his family" then the requirement was both of the landlord and the members of his family. On his death, the right to ' sue did survive to the members of the family of the deceased landlord. We are unable to take the view that the requirement of the occupation of the members of the family of the original landlord was his requirement and ceased to be the requirement of the members of his family on his death."
22- In Shakuntala Bai and others v. Narayan Das and others, (2004) 5 SCC 772 (Paragraph Nos. 10.1 and 11), Hon'ble Supreme Court held as under:
"10.1 With regard to this category of cases it was held that the estate is entitled to the benefit which, under a decree, has accrued in favour of the plaintiff and, therefore, the legal representatives are entitled to defend further proceedings, like an appeal, which constitute a challenge to that benefit. Even otherwise, this appears to be quite logical. In normal circumstances after passing of the decree by the trial Court, the original landlord would have got possession of the premises. But if he does not and the tenant continues to remain in occupation of the premises it can only be on account of the stay order passed by the appellate Court. In such a situation, the well known maxim "actus curiae neminem gravabit" that "an act of the Court shall prejudice no man" shall come into operation. Therefore, the heirs of the landlord will be fully entitled to defend the appeal preferred by the tenant and claim possession of the premises on the cause of action which had been originally pleaded and on the basis whereof the lower Court had decided the matter and had passed the decree for eviction. However in regard to the case before the court it was held that the requirement pleaded in the ejectment application on which the plaintiff founded his right to relief was his personal requirement and such a personal cause of action must perish with the plaintiff. On this ground it was held that the plaintiff's right to sue will not survive to his heirs and they cannot take the benefit of the original right to sue.
11. In Shantilal Thakordas v. Chimanlal Maganlal Telwala (1976) 4 SCC 417, a larger Bench overruled the decision rendered in Phool Rani v. Naubat Rai Ahluwalia insofar it held that the requirement of the occupation of the members of the family of the original landlord was his personal requirement and ceased to be the requirement of the members of his family on his death. The Court took the view that after the death of the original landlord the senior member of his family takes his place and is well competent to continue the suit for eviction for his occupation and occupation of the other members of the family. Thus, this decision held that the substituted heirs of the deceased landlord were entitled to maintain the suit for eviction of the tenant. The ratio of this decision by a larger Bench does not in any manner affect the view expressed in Phool Rani (1973)1 SCC 688 that where the death of the landlord occurs after a decree for possession has been passed in his favour, his legal representatives are entitled to defend further proceedings like an appeal and the benefit accrued to them under the decree. In fact, the ratio of Shantilal Thakordas (1976)45 417 would reinforce the aforesaid view. There are several decisions of this Court on the same line. In Kamleshwar Prasad v. Pradumanju Agarwal 1997(4) SCC 413 it was held that the need of the landlord for premises in question must exist on the date of application for eviction, which is the crucial date and it is on the said date the tenant incurred the liability of being evicted therefrom. Even if the landlord died during the pendency of the writ petition in the High Court, the bona fide need cannot be said to have lapsed as the business in question can be carried on by his widow or any other son. In Gaya Prasad v. Pradeep Srivastava (2001) 2 SCC 604 it was held that the crucial date for deciding as to the bonafides of requirement of landlord is the date of his application for eviction. Here the landlord had instituted eviction proceedings for the bona fide requirement of his son who wanted to start a clinic. The litigation continued for a long period and during this period the son joined Provincial Medical Service and was posted at different places. The subsequent event i.e. the joining of the service by the son was not taken into consideration on the ground that the crucial date was the date of filing of the eviction petition. Similar view has been taken in G.C. Kapoor v. Nand Kumar Bhasin (2002)1 SCC 610. Therefore, the legal position is well settled that the bona fide need of the landlord has to be examined as on the date of institution of proceedings and if a decree for eviction is passed, the death of the landlord during the pendency of the appeal preferred by the tenant will make no difference as his heirs are fully entitled to defend the estate."
23- Thus, in view of the decision made above and respectfully following the law laid down by Hon'ble Supreme Court in the judgments referred above, I hold that the legal position is well settled that the bonafide need of the landlord has to be examined as on the date of institution of proceedings and if a decree of eviction is passed, the death of the landlord during the pendency of the appeal or writ petition or a petition under Article 227 preferred by the tenant will make no difference. The heirs of the landlord will be fully entitled to claim possession of the premises on the cause of action which had been originally pleaded and on the basis whereof the lower court had decided the matter and had passed the decree for eviction. Death of the landlord during the pendency of the petition before this Court, would not mean that the bonafide need has lapsed, as the business in question can be carried on by his widow or any other son. Landlord's death will not make any difference as his heirs are fully entitled to defend the estate. If the subsequent event like the death of landlord is to be taken note of at every stage till the decree attains finality, there will be no end to litigation.
24- In the present set of facts the P.A. Case No.02 of 1994 was instituted by the landlord-petitioner and after about 20 years it was decreed by the Prescribed Authority/Civil Judge (Junior Division), Etah by judgment dated 23.2.2006. However, due to pendency of Rent Appeal No.02 of 2006 filed by the tenant-respondent, the decree could not be instituted and the tenant could not be evicted. Eight years were exhausted to decide the appeal and now from five years the present petition is pending before this Court and ultimately, the landlord died recently on 8.1.2019. The tenant continued in occupation of the disputed premises because of some interim order in the appeal. In such a situation the well known maxim "actus curiae neminem gravabit" that "an act of the Court shall prejudice no man" shall also come into operation.
25- In view of the discussions, all the submissions made by the tenant-respondent are rejected.
Whether Appellate Court can direct the landlord to provide an alternative accommodation to the tenant in the premises owned or partly owned by his son or wife.
26- The directions given by the appellate court to the plaintiff for providing an alternative accommodation is in conflict with the law laid down by this Court in the case of the other tenant Girraj Kishore (supra), which has been reproduced in para 11 above. Therefore, the impugned judgment of the appellate court can also not be sustained in view of the law laid down by this Court in Girraj Kishore's case (supra) and the discussion made above. Besides, it is well settled that the appeal is a creation of Statute. Section 22 of the U.P. Act XIII of 1972, provides for a statutory remedy of appeal against an order passed under Section 21 or Section 24 of the Act. Section 21 does not provide for a direction to the landlord to make available an alternative accommodation to the tenant as per provision of Section 22 read with Section 10 of the Act, the appellate court may confirm, vary or rescind the order, or remand the case. No power has been conferred to issue a direction to the landlord to provide an alternative accommodation to the tenant as a condition for release of the disputed accommodation. Therefore, the direction of the appellate court to the landlord to provide an accommodation to the respondent-tenant is without jurisdiction. Thus. the appellate court has exceeded its jurisdiction to issue such a direction.
Conclusion in Brief 27- The discussion and conclusions made above are briefly summarized as under:
(i) Finding of fact has been recorded by the Prescribed Authority that the plaintiff is in bonafide need of the disputed shop. This finding of fact has not been set aside by the appellate court by the impugned judgment in Rent Control Appeal No.02 of 2006. Therefore, findings of fact recorded by the Prescribed Authority in P.A. Case No.02 of 1994 on the point of bonafide need, requires no interference and is upheld.
(ii) The need of the landlord for premises in question must exist on the date of application for eviction, which is the crucial date and it is on the said date the tenant incurred the liability of being evicted therefrom. Even if the landlord died during the pendency of the writ petition in the High Court, the bona fide need cannot be said to have lapsed as the business in question can be carried on by his widow or any other son. In Gaya Prasad v. Pradeep Srivastava (2001) 2 SCC 604 it was held that the crucial date for deciding as to the bonafides of requirement of landlord is the date of his application for eviction.
(iii) The bonafide need of the landlord has to be examined as on the date of institution of proceedings and if a decree of eviction is passed, the death of the landlord during the pendency of the appeal or writ petition or a petition under Article 227 preferred by the tenant will make no difference. The heirs of the landlord will be fully entitled to claim possession of the premises on the cause of action which had been originally pleaded and on the basis whereof the lower court had decided the matter and had passed the decree for eviction.
(iv) Death of the landlord during the pendency of the petition before this Court, would not mean that the bonafide need has lapsed, as the business in question can be carried on by his widow or any other son. Landlord's death will not make any difference as his heirs are fully entitled to defend the estate. If the subsequent event like the death of landlord is to be taken note of at every stage till the decree attains finality, there will be no end to litigation.
(v) In the present set of facts the P.A. Case No.02 of 1994 was instituted by the landlord-petitioner and after about 20 years it was decreed by the Prescribed Authority/Civil Judge (Junior Division), Etah by judgment dated 23.2.2006. However, due to pendency of Rent Appeal No.02 of 2006 filed by the tenant-respondent, the decree could not be instituted and the tenant could not be evicted. Eight years were exhausted to decide the appeal and now from five years the present petition is pending before this Court and ultimately, the landlord died recently on 8.1.2019. The tenant continued in occupation of the disputed premises because of some interim order in the appeal. In such a situation the well known maxim "actus curiae neminem gravabit" that "an act of the Court shall prejudice no man" shall also come into operation.
(vi) The directions given by the appellate court to the plaintiff for providing an alternative accommodation is in conflict with the law laid down by this Court in the case of the other tenant Girraj Kishore (supra), which has been reproduced in para 11 above. The appeal is a creation of Statute. Section 22 of the U.P. Act XIII of 1972, provides for a statutory remedy of appeal against an order passed under Section 21 or Section 24 of the Act. Section 21 does not provide for a direction to the landlord to make available an alternative accommodation to the tenant as per provision of Section 22 read with Section 10 of the Act, the appellate court may confirm, vary or rescind the order, or remand the case. No power has been conferred to issue a direction to the landlord to provide an alternative accommodation to the tenant as a condition for release of the disputed accommodation.
28- For all the reasons aforestated, the impugned judgment dated 23.8.2014 in Rent Control Appeal No.02 of 2006 (Sri Dinesh Chandra v. Kishan Chand and others), passed by the District Judge Etah, cannot be sustained and is hereby set aside. The judgment of the Prescribed Authority/Civil Judge (Junior Division), Etah, dated 23.2.2006 passed in P.A. Case No.2 of 1994 (Sri Kishan Chandra v. Sri Padam Chandra Jain and others), is restored and upheld. The petition is allowed with costs.
Order Date :- 30.9.2019 Ak/