My photo




Monday, February 13, 2017

whether the marriage of the appellant/landlady as subsequent event can extinguish the bona fide requirement of a landlady and disentitle her for the relief sought in the release application filed prior to her marriage.= In our view, the subsequent event, namely, marriage of appellant does not extinguish her requirement considering the comparative hardship, it is to be pointed out that the respondents have another business of sweet shop and thus, is not going to suffer if ordered to vacate the suit premises as they can shift the place of business to some other place without suffering any loss of occupation, whereas the parents of the appellant would be subjected to hardship as she has no other premises to accommodate her grandparents as well as her parents. While taking note of the subsequent events, the High Court has not considered the comparative hardship to the appellant and erred in declining the relief to the appellant.


                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 1008 OF 2017

NIDHI                                                …..   Appellant

RAM KRIPAL SHARMA (D) THROUGH LRs.                …..   Respondents

                               J U D G M E N T


      This appeal by way of special leave is  preferred  against  the  order
dated 23.01.2013 passed by the High Court  of  Judicature  at  Allahabad  in
Writ Appeal No.19835 of 2003, wherein the  High  Court  affirmed  the  order
passed by  Additional  District  Judge,  Moradabad,  thereby  setting  aside
release order dated 29.10.1991 passed by the Prescribed Authority.

2.    Brief facts of the present case are that the appellant  is  the  owner
and landlord of  the  premises  in  question,  which  is  a  non-residential
accommodation.  Allegedly, the premises was let  out  by  ancestors  of  the
appellant’s family when they did not require the premises for  personal  use
as the previous owner of the accommodation Smt. Krishna Devi wife of  Kunwar
Mahendra Pratap Singh had adequate place to reside in.  After the demise  of
Smt. Krishna Devi, appellant Nidhi became  the  owner  of  the  premises  in
question and continued to receive rent from the  respondent.  The  appellant
filed a release application being PCS No.97 of 1987, under Section  21(1)(a)
of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and  Eviction)
Act, 1972 (hereinafter referred to as  U.P.  Act   XIII  of  1972),  seeking
possession of the suit premises on the ground  of  her  bona  fide  personal
requirement.  The appellant alleged that she is in need of the  premises  as
the appellant wants to accommodate her grandparents  in  the  demised  house
who live in  village  and  are  in  need  of  care  and  medical  treatment.
Moreover, the appellant alleged that she and  her  younger  sister  required
separate room for study.  It was alleged that  the  respondent  carries  out
the said hotel business for namesake only and is being carried  out  by  the
servant of the respondent. It was further alleged by the appellant that  the
respondent’s main business is that of a sweet shop  and  he  has  sufficient
means to take some other place on rent to run his hotel business.

3.    Respondent-tenant admitted the tenancy in the property in dispute  and
resisted the application for release of  accommodation,  claiming  that  the
appellant and her sister live in a big house called  Kath  Mahal  which  has
sufficient space comprising of large rooms and large halls. It  was  averred
that the grandparents of the appellant are big landlords in the village  and
live in a palatial house there and they are unable to climb  stairs  in  the
suit premises.  Also, the alleged business of sweet shop is run by  his  son
and the entire family is dependent upon the income from hotel business.

4.    Upon consideration  of  evidence  and  on  hearing  the  parties,  the
Prescribed Authority held that the balance of convenience lies in favour  of
the appellant and taking into consideration the social status of family  and
that the grandparents of the appellant want to live with her parents,  found
that the appellant bona fide requires the  premises  and  vide  order  dated
29.10.1991 allowed  the  application  for  release  of  suit  premises.  The
Prescribed Authority  directed  the  appellant-landlord  to  compensate  the
respondent by giving him a sum  equivalent  to  two  years  of  rent  before
taking possession.

5.    Respondent-tenant challenged  the  aforesaid  order  by  way  of  Rent
Control Appeal No.72 of 1991 under Section 22 of  U.P.  Act  XIII  of  1972,
before the Additional District Judge at  Moradabad,  who  vide  order  dated
04.02.2003, allowed the appeal  and  set  aside  the  order  passed  by  the
Prescribed  Authority  holding  that  the  appellant’s  need  for  the  suit
premises  is  not  based  on  bona  fide  requirement  and  her   need   for
accommodation is not immediate or pressing.

6.    Aggrieved by the said order of  the  appellate  court,  the  appellant
filed Writ Appeal No.19835 of 2003 before the High Court  of  Judicature  at
Allahabad. The High Court upon consideration  of  the  facts  and  materials
placed on record before it and after hearing the contentions of the  parties
before it  dismissed  the  writ  appeal  holding  that  the  relief  claimed
originally has,  by  reason  of  subsequent  development  in  circumstances,
become inappropriate. The High  Court  found  that  when  the  statement  of
appellant was recorded, she was a student of B.Sc. and was  of  marriageable
age and as the matter went before the  appellate  authority,  the  situation
changed as the Court noticed that the appellant was  married  on  23.01.1996
and her husband was a member of Indian Revenue  Service  who  was,  at  that
time, posted at Delhi and subsequently  in  Mumbai.   The  High  Court  also
observed that the sisters of the appellant also got married and were  living
with their husbands, elsewhere and that the  alleged  need  had  disappeared
long back.  The High Court relied on the judgments of this Court  in  Hasmat
Rai vs. Raghunath Prasad (1981) 3 SCC 103 and Kedar Nath  Agrawal  and  Anr.
vs. Dhanraji Devi and Anr.  2004 (4) AWC 3709 (SC), to take  the  cognizance
of subsequent events.

7.    Learned counsel for the appellant submitted that the  first  appellate
court and the High Court have erroneously denied the relief  sought  by  the
appellant in the release application only because  during  the  pendency  of
the appeal filed by the respondent, the appellant got  married  which  is  a
subsequent development which would naturally take place  and  the  appellant
cannot be made to suffer on  account  of  delay  in  adjudication.   It  was
further contended that only because the husband of the  appellant  has  been
allotted a government accommodation, the  need  of  the  appellant  did  not
disappear as the appellant required the scheduled premises for her  own  use
and occupation as well as for the use and occupation of her family  and  the
appellant requires the scheduled premises for herself as  well  as  for  her
parents and  grandparents  and  her  bona  fide  requirement  has  not  been
properly considered by the High Court.

8.    Per contra, learned counsel for the respondents  submitted  that  this
Court has in numerous cases held that in case of eviction on the  ground  of
bona fide need  and  comparative  hardship,  the  court  must  consider  the
subsequent changes in events to decide the  bona  fide  requirement  of  the
landlord.  It was further submitted that in  her  release  application,  the
appellant had set up her bona fide  need  but  failed  to  substantiate  her
stand and hence the  first  appellate  court  and  the  High  Court  rightly
dismissed the release application.

9.    We have considered the rival contentions of learned  counsel  for  the
parties and perused the impugned order and other materials on record.

10.   The point falling for consideration is whether  the  marriage  of  the
appellant/landlady  as  subsequent  event  can  extinguish  the  bona   fide
requirement of a landlady and disentitle her for the relief  sought  in  the
release application filed prior to her marriage.

11.   Before proceeding further, it is apposite to  have  a  look  over  the
related provision under Section 21(1) of  the  U.P.  Act  which  deals  with
proceedings for release of building under occupation of tenant,  clause  (a)
of sub-Section (1) of Section 21 of the Act alone is germane in the  present
proceedings and the said clause reads as under:-

“21. Proceedings for release of building under occupation  of  tenant.-  (1)
The Prescribed Authority may, on an application  of  the  landlord  in  that
behalf, order the eviction of a tenant from the building  under  tenancy  or
any specified part thereof if it is satisfied  that  any  of  the  following
grounds exists namely-

(a)   that the building is bona fide required either in  its  existing  form
or after demolition and new construction by the landlord for  occupation  by
himself or any member of his family, or any person for whose benefit  it  is
held by him,  either  for  residential  purposes  or  for  purposes  of  any
profession, trade or calling, or where the landlord  is  the  trustee  of  a
public charitable trust, for the objects of the trust;


An analysis of the above provision would show that the  landlord  of  rented
property is entitled to the vacant possession of his rented premises in  the
event of his bona  fide  requirement  of  the  said  premises  for  his  own
residential or professional requirements or for any person related to him.

12.   In the facts  of  present  case,  the  appellant-landlady  herein  was
living in a small house with her family comprising four members and was  not
able  to  accommodate  her  ailing  grandparents  who  used  to  visit  them
frequently for medication purposes and were  willing  to  reside  with  them
permanently as they were living alone in  their  village  where  nobody  was
there  to  look  after  them.  Appellant  in  order   to   accommodate   her
grandparents with them and in the light of growing  needs  of  her  and  her
younger sister (who  were  then  studying)  filed  the  release  application
before the prescribed authority and the release order  was  granted  by  the
prescribed  authority  in  favour  of   the   appellant/landlady   directing
respondent-tenant to handover vacant possession  of  suit  premises  to  the
appellant. As noticed earlier, during the pendency of appeal,  preferred  by
the respondent-tenant, the  appellant  got  married  and  settled  with  her
husband. The first appellate court as well as the High Court  took  note  of
this as subsequent development and  held  that  the  requirement  no  longer
subsists and the claim of personal requirement has disappeared.  Of  course,
during the pendency of  lis  between  the  parties,  situation  underwent  a
change and the appellant got married to an Indian  Revenue  Service  Officer
and started residing with him in Delhi and Mumbai etc. Though the  appellant
is married and settled with her husband, her bona  fide  requirement  cannot
be said to have ended as she wanted the premises not just  for  herself  but
to accommodate her parents and grandparents in the  suit  premises  so  that
they can live together. The family of the appellant  is  still  said  to  be
residing in rented premises in Moradabad,  despite  having  their  own  suit
premises to reside in.   In  the  facts  of  present  case,  the  change  in
subsequent events is not such that would deprive the appellant of her  right
to vacant possession of suit premises as it is  a  natural  event  that  the
daughter of the house  would  get  married  and  settle  with  her  husband.
Though the appellant has got married and shifted to different  accommodation
with her husband, the actual bona fide requirement of premises is still  the
same, since her parents and grandparents are still residing separately  from
each other with no one to look after  them.   More  so,  the  appellant  got
married but the family stays where it is and the bona  fide  requirement  of
premises for accommodation of parents remains the same.  Being  married  and
shifting to other place does not automatically result  in  extinguishing  of
bona fide requirement of the appellant as being the owner of  property,  she
alone is to decide what she wants to do with her property.

13.   The legislations made for dealing with such  landlord-tenant  disputes
were pro-tenant as the court tends to bend towards the tenant  in  order  to
do justice with the tenant; but in the process of doing  justice  the  Court
cannot be over zealous and forget its duty  towards  the  landlord  also  as
ultimately, it is the landlord who owns the  property  and  is  entitled  to
possession of the same when he proves his bona fide beyond reasonable  doubt
as it is in the case before this Court.

14.   First appellate court as well as the High Court observed  that  during
the pendency of the appeal, the appellant got married, her husband a  member
of Indian Revenue Service (IRS) posted at Delhi,  Mumbai  and  other  places
and this subsequent event has extinguished the personal requirement  of  the
appellant.  In the impugned judgment, the High Court referred to  number  of
judgments Hasmat Rai and Another vs. Raghunath  Prasad  (1981)  3  SCC  103;
Ramesh Kumar vs. Kesho Ram (1992) Suppl. (2) SCC 623 and other judgments.

15.   Ordinarily, rights of the parties stand crystallised on  the  date  of
institution of the suit.  However, the court has power to take note  of  the
subsequent events and mould the relief accordingly.  Power of the  court  to
take note of subsequent events came up for  consideration  in  a  number  of
decisions.  In Om Prakash Gupta vs. Ranbir B. Goyal (2002) 2 SCC  256,  this
Court held as under:-

“11. The ordinary rule of civil law is that the rights of the parties  stand
crystallised on the date of the institution of the suit and, therefore,  the
decree in a suit should accord with the rights of the parties as they  stood
at the commencement of the lis. However, the Court has power  to  take  note
of subsequent events  and  mould  the  relief  accordingly  subject  to  the
following conditions being  satisfied:  (i)  that  the  relief,  as  claimed
originally has, by reason of  subsequent  events,  become  inappropriate  or
cannot be granted; (ii)  that  taking  note  of  such  subsequent  event  or
changed circumstances would shorten litigation and enable  complete  justice
being done to the parties; and (iii) that such subsequent event  is  brought
to the notice of the court promptly and in  accordance  with  the  rules  of
procedural law so that the opposite party  is  not  taken  by  surprise.  In
Pasupuleti Venkateswarlu v. Motor & General Traders (1975) 1  SCC  770  this
Court held that a fact arising after the lis, coming to the  notice  of  the
court and having a fundamental impact on the right to relief or  the  manner
of moulding it and brought diligently to the notice of the court  cannot  be
blinked at. The court may in such cases bend the rules of  procedure  if  no
specific provision of law or rule of fair play  is  violated  for  it  would
promote  substantial  justice  provided  that  there  is  absence  of  other
disentitling factors or  just  circumstances.  The  Court  speaking  through
Krishna Iyer, J. affirmed the proposition that the court  can,  so  long  as
the litigation pends, take note of  updated  facts  to  promote  substantial
justice. However, the Court cautioned: (i) the event should be one as  would
stultify or render inept the decretal remedy, (ii) rules  of  procedure  may
be bent if no specific provision or fair play is violated and  there  is  no
other special circumstance  repelling  resort  to  that  course  in  law  or
justice, (iii) such cognizance of subsequent events and developments  should
be cautious, and (iv)  the  rules  of  fairness  to  both  sides  should  be
scrupulously obeyed.

Om Prakash Gupta’s case was referred with approval in Ram Kumar Barnwal  vs.
Ram Lakhan (Dead) (2007) 5 SCC 660.

16.   Though the court has the power to take note of the subsequent  events,
court has to consider the effect of subsequent development on the bona  fide
need of the landlord.  For the purpose of coming to the conclusion  on  bona
fide   need of the landlord, comparative hardship to the parties  will  have
to be taken into consideration.  As discussed above, in  the  present  case,
the appellant got married during the pendency  of  the  appeal  and  settled
with her husband; still her  requirement  to  accommodate  her  parents  and
grandparents continued. Appellant has established her bona fide  requirement
for accommodating her parents and grandparents in the suit  premises  merely
because  the  appellant  got  married  amidst  the  proceedings   does   not
extinguish her claim for the relief of possession of the suit premises.   In
our view, the subsequent event,  namely,  marriage  of  appellant  does  not
extinguish her requirement considering the comparative hardship,  it  is  to
be pointed out that the respondents have another business of sweet shop  and
thus, is not going to suffer if ordered to vacate the suit premises as  they
can shift the place of business to some other place  without  suffering  any
loss of occupation, whereas the parents of the appellant would be  subjected
to hardship as she has no other premises to accommodate her grandparents  as
well as her parents.  While taking note of the subsequent events,  the  High
Court has not considered the  comparative  hardship  to  the  appellant  and
erred in declining the relief to the appellant.

17.   In the result, the appeal is allowed, the impugned order of  the  High
Court is set aside and the order passed by  the  prescribed  authority  i.e.
Court of Second Upper Civil Judge, Moradabad dated 29.10.1991  is  restored.
The  appellant  shall  deposit  the  compensation  before   the   prescribed
authority payable to the  respondent  within  four  weeks  from  today.  The
respondent shall handover the possession of the  suit  premises  within  one
month from the date of deposit of the amount, failing which the  respondent-
tenant shall be liable for committing contempt of this Court.  No costs.

                                                [DIPAK MISRA]

                                                [R. BANUMATHI]

New Delhi;
February  07, 2017

No comments:

Post a Comment

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