advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Wednesday, August 28, 2013

whether the landlord could still claim bonafide need for himself as well as his dependents. = in Sheshambal v. Chelur Corporation (2010) 3 SCC 470 in which my learned and esteemed brother Thakur J. had perspicuously yet concisely considered the plethora of precedents pertaining to the legal consequences of the demise of the landlord whose bonafide need was the substance of the eviction action, during the pendency of an appeal. After analysing several previous decisions, it has been held that events which transpired subsequent to filing of the eviction petition could and must be kept in perspective if they would have the effect of dislodging the very plinth or substratum of the claim. In Sheshambal, the bonafide need that had been pleaded pertained only to the landlord and his wife. It will be relevant to record that the claim had been concurrently rejected by the courts below, before whom the landlord-husband had passed away. The widow, whose bonafide need had also been set up, unfortunately, also passed away during the pendency of the appeal in this Court. In those circumstances, it was held that the bonafide need, even assuming that it existed at the time of filing of the eviction action, had thereafter lapsed altogether on the death of the petitioning protagonists. = 9. In these circumstances, mindful of the uncertainty of which manner we may decide, the parties through their counsel have arrived at a settlement before us. It has been agreed that the rent shall stand increased to Rs.1500/- per month and that the Respondent-tenant shall be permitted to continue to occupy the tenanted premises for a further period of three years. The Appeal is accordingly allowed. The judgment of the High Court is set aside. However, the Respondent- tenant shall hand over peaceful and vacant possession to the landlord or his legal heirs in the event of his demise on or before 31st August 2016 provided the Respondent pays all the arrears of rent till date (if any); and with effect from September 2013 pays a sum of Rs.1500/- per month towards damages for use and occupation. The usual undertaking to abide by these terms must be filed within four weeks from today failing which he shall be liable to be evicted/ejected forthwith.

                    published in     http://judis.nic.in/supremecourt/imgst.aspx?filename=40697                                     
    REPORTABLE


                        IN THE SUPREME COURT OF INDIA


                        CIVIL APPELLATE JURISDICTION


                   CIVIL APPEAL NO.  7163         OF 2013
                 [Arising out of S.L.P.(C)No.21936 of 2011]




      Baldev Krishan                                    …..Appellant


            Versus


      Satya Narain                                      …..Respondent






                               J U D G M E N T




      VIKRAMAJIT SEN, J.


      1.    Leave granted.  We have heard learned counsel for the parties in
      great detail, at the end of which a settlement was arrived at  between
      them, the terms of which we shall spell out later.
      2.    The Appeal assails the order of the learned Single Judge of  the
      High Court  of  Rajasthan  in  Second  Appeal  No.216  of  2010  dated
      11.3.2011 which in turn related to the legal propriety of  the  decree
      of eviction passed by the First Appellate  Court  being  the  District
      Judge, Churu.   The  landlord/Appellant  had  filed  a  Suit  for  the
      eviction of the tenant/Respondent on sundry grounds out  of  which  we
      are presently concerned  only  with  that  under  Section  13(1)(h) of
      the Rajasthan Premises (Control  of  Rent  and  Eviction)  Act,  1950,
      which envisages the eviction of a tenant on  the  predication  of  the
      landlord, “that the premises are required reasonably and  bonafide  by
      the landlord (i) for the use or occupation of himself or  his  family,
      …..”.
      3.    We have perused the Plaint, the salient averments of  which  are
      that “in order to solve his financial problem the plaintiff  wants  to
      start a business of Paapad, Badi and spices in the disputed shop to be
      looked after by his wife.  The wife of the plaintiff also wants to  do
      the same and the plaintiff  after  his  retirement  himself  wants  to
      pursue and continue this industry and business and keep up his  source
      of income.  In these situations since the plaintiff and his  wife  and
      children will also require place for  their  residence  for  which  he
      wants to vacate and utilise two rooms, store and varandah as are built
      on the first floor which is presently with Jaiprakash  on  rent.   The
      plaintiff and his wife also need rooms built at the  second  floor  of
      the house for the business and industry of Paapad, Badi etc., and  for
      their residential purposes and for other  needs.   In  this  way,  the
      plaintiff has legitimate, reasonable and bonafide need of the disputed
      shop and room which is at second floor  for  himself  and  his  family
      members.......”.   After a perusal of these averments, it seems to  us
      that it cannot  be  concluded  that  the  eviction  suit  pleaded  the
      bonafide need of only  the  subsequently  deceased  wife,  either  for
      commercial or residential requirement; the claimed  need  was  of  the
      plaintiff  and his family.
      4.    The Trial Court, by its order dated 4.9.2003, decreed  the  Suit
      in favour of the Appellant-landlord which, as already indicated above,
      was upheld in appeal by the District Judge, Churu, by  judgment  dated
      8.11.2010.  However, in that duration, the  Appellant-landlord's  wife
      had passed away in 2007.  In the impugned  judgment,  the  High  Court
      repelled the contention of the landlord  that  concurrent  finding  of
      fact ought not to be upset by the High Court  in  the  Second  Appeal.
      After doing so, the High Court did not  view  the  claim  of  bonafide
      requirement of the tenanted premises favourably.  This has resulted in
      the filing of the present appeal before us.
      5.    The discussion of the law should properly start with the  three-
      Judge Bench decision  in  Pasupuleti  Venkateswarlu  v.  The  Motor  &
      General Traders (1975) 1 SCC  770.   Our  research  reveals  that  the
      question in hand has not received the attention of  any  larger  Bench
      and hence if the ratio decidendi of Pasupuleti is to be varied, it per
      force has to be done by  a  larger  Bench.   In  these  circumstances,
      Pasupuleti  holds the field on the question of the consideration to be
      given to events which have occurred subsequent to the institution of a
      suit and the disposal of any statutory  appeal.   Pasupuleti  requires
      the Court to “take cautious  cognisance  of  events  and  developments
      subsequent to the institution of the proceeding provided the rules  of
      fairness to both sides are scrupulously obeyed.”   After  laying  down
      these propositions the decision was to the effect that the recovery of
      another accommodation by the landlord during the pendency of the case,
      had material bearing on the right to evict since that right  would  be
      defeated by the statutory provisions itself.  Pasupuleti did not  have
      the occasion to consider Phool Rani v.  Naubat Rai Ahluwalia (1973)  1
      SCC 688; counsel were clearly remiss in not bringing this decision  to
      the Court’s  notice.   Close  upon  the  heels  of  this  decision  is
      Shantilal Thakordas v. Chimanlal Maganlal Telwala  (1976)  4  SCC  417
      also rendered by a three-Judge  Bench.    Phool  Rani  was  cited  and
      overruled in Shantilal and, therefore, the  former  ought  not  to  be
      cited or considered  any  further.   The  tenor  of  Shantilal  is  in
      consonance with and not contrary to Pasupuleti, as it necessarily must
      be.  What has been held is that if the requirement of the Plaintiff as
      well as his heirs is in issue before the Court, the  passing  away  of
      the Plaintiff will not defeat the lis.  Another three-Judge  Bench  in
      Hasmat  Rai  v.  Raghunath  Prasad  (1981)  3  SCC  103  has  followed
      Pasupuleti,  again as it was precendentially bound to.  The  plurality
      was of the view that a decree or order does not become final till  the
      appeal filed against it is finally disposed  of.   In  his  dissenting
      note, Pathak.J emphasised upon the fact that it was only in the course
      of the Second Appeal that the tenant endeavoured to draw the attention
      of the court to the demise of the landlord.  Accordingly, Pathak,J was
      of the opinion that since  there  were  concurrent  findings  of  fact
      rendered by the Trial Court as well as the first Appellate Court,  the
      demise of the Plaintiff-landlord in the course of  the  Second  Appeal
      would not have any detrimental legal consequences to  his  claim.   We
      may add here, by way of emphasis,  that  a  Second  Appeal  would  not
      entail the determination of questions of fact but must conform to  the
      discipline  of  only  considering  question  of  law  of   substantial
      importance.  Shakuntala Bai v. Narayan Das  (2004)  5  SCC  772  is  a
      decision of a two-Judge Bench and, therefore, need not  detain  us  in
      view of the ratio decidendi of larger Benches.  Significantly, it  was
      not brought to the notice of the Court that Phool  Rani   had  already
      been overruled by two larger  Benches.   However,  the  distinguishing
      feature in this case  was  that  consequent  upon  the  death  of  the
      original landlord-plaintiff his legal heirs had  been  allowed  to  be
      impleaded and  the  case  progressed  from  that  stage,  not  in  the
      appellate court but before the Trial Court.  It has been duly noted at
      the final hearing of the eviction Suit by the  Trial  Court,  all  the
      Plaintiff’s sons had specifically set up their own bonafide needs.
      6.     We  have  briefly  considered  the  previous  precedents  since
      disparate decisions inexorably lead to a vexed and a split  exposition
      of the law.  Our objective is to insulate the subordinate courts  from
      choosing between decisions of the Apex Court by  presenting  only  one
      opinion of the law.
      7.    We must immediately refer to the decision of this Court, in  the
      nature  of  a  re-statement  of  the  law, 
 in  Sheshambal  v.  Chelur Corporation (2010) 3 SCC 470 
in which my learned and esteemed  brother
      Thakur J. had perspicuously yet concisely considered 
the  plethora  of
      precedents pertaining to the legal consequences of the demise  of  the
      landlord whose bonafide need was the substance of the eviction action,
      during the pendency of an appeal.  
After  analysing  several  previous
      decisions, it has been held that events which transpired subsequent to
      filing of the eviction petition could and must be kept in  perspective
      if they would have  the  effect  of  dislodging  the  very  plinth  or
      substratum of the claim.  
In Sheshambal, the bonafide  need  that  had
      been pleaded pertained only to the landlord and his wife.  It will  be
      relevant to record that the claim had been  concurrently  rejected  by
      the courts below, before whom the landlord-husband  had  passed  away.
     
 The widow, whose bonafide need had also been  set  up,  unfortunately,
      also passed away during the pendency of the appeal in this Court. 
  In
      those circumstances, it was held that the bonafide need, even assuming
      that it existed at the time of filing  of  the  eviction  action,  had
      thereafter  lapsed  altogether  on  the  death  of   the   petitioning
      protagonists.  
It seems to us that it is arguable  that  the  position
      may change had there been a favourable verdict during their  lifetime.
      Premium should not be placed on the filing of appeals merely to defeat
      a favourable decision on the unfair speculation that the endemic delay
      in disposal of appeals may result in defeating a decree because of the
      death of the landlord.  
It had been clarified in Sheshambal  that 
 “if
      the deceased landlord had any dependent member of the family,  we  may
      have even in the absence of a pleading assumed  that  the  requirement
      pleaded extended also to the dependent member of their  family.   
That
      unfortunately for the Appellant is neither the case  set  up  nor  the
      position on facts”. 
 The second aspect of the decision which needs  to
      be recounted is that the rent had been increased by the High Court  to
      Rs.10,000/- per month with effect from  1.11.2003  and  thereafter  by
      this Court to Rs.25,000/- per month with effect from 1.1.2009.
      8.    Returning  to  the  pleadings  before  us,  we  are  not  seized
       of  an eviction action  in  which  the  bonafide  need  of  only  the
      deceased wife of the Appellant had  been  pleaded.   
It  is  for  this
      reason that we have extracted above the relevant parts of the  Plaint.
      Therefore, it required  our  careful  cogitation  as  to  
whether  the landlord could still claim bonafide need for himself as  well  as  his dependents.
      9.    In these circumstances, mindful  of  the  uncertainty  of  which
      manner we may decide,
the parties through their counsel  have  arrived
      at a settlement before us.  It has been agreed  that  the  rent  shall
      stand increased to Rs.1500/- per month and that the  Respondent-tenant
      shall be permitted to continue to occupy the tenanted premises  for  a
      further period of three years.  
The  Appeal  is  accordingly  allowed.
      The judgment of the High Court is set aside.  
However, the Respondent-
      tenant shall hand over peaceful and vacant possession to the  landlord
      or his legal heirs in the event of his demise on or before 31st August
      2016 provided the Respondent pays all the arrears of  rent  till  date
      (if any); and with effect from September 2013 pays a sum of  Rs.1500/-
      per  month  towards  damages  for  use  and  occupation.   The   usual
      undertaking to abide by these terms must be filed  within  four  weeks
      from today failing which he shall  be  liable  to  be  evicted/ejected
      forthwith.
      10.   Parties shall bear their respective costs.



      .................................................J.
                                        [T.S. THAKUR]




      New                                                              Delhi
      .................................................J.
      August 27, 2013.                  [VIKRAMAJIT SEN]



-----------------------
8


No comments:

Post a Comment

Note: Only a member of this blog may post a comment.