published in http://judis.nic.in/supremecourt/imgst.aspx?filename=8875
PETITIONER:
YUDHISHTER
Vs.
RESPONDENT:
ASHOK KUMAR
DATE OF JUDGMENT11/12/1986
BENCH:
MUKHARJI, SABYASACHI (J)
BENCH:
MUKHARJI, SABYASACHI (J)
SINGH, K.N. (J)
CITATION:
1987 AIR 558 1987 SCR (1) 516
1987 SCC (1) 204 JT 1986 1021
1986 SCALE (2)1044
CITATOR INFO :
RF 1991 SC1654 (27)
ACT:
Haryana Urban (Control of Rent and Eviction) Act, 1973,
s. 13(3)(a)i) and 15(4)--Application for ejectment--Bona
fide requirement of building by landlord--Jurisdiction of
appellate authority to admit additional evidence.
Statutory interpretation--Rent Act-A beneficial
legislation-Whether it should be read reasonably and justly.
HEADNOTE:
On 11th October 1971, the respondent-landlord purchased
a house in which the appellant was a tenant since 1962. He
had also purchased another house in the same district on
10.7.1971 but sold away the same on 7.8.72 as it was not
vacant. On 14th January, 1974, the respondent-landlord filed
an eviction petition against the appellant-tenant inter alia
on the ground of bona fide personal requirement. The Rent
Controller rejected the petition holding that all the ingre-
dients of s. 13(3)(a)(i) of the Haryana Urban (Control of
Rent and Eviction) Act 1973 had not been proved.
Aggrieved by the order of the Rent Controller, the
respondent filed an appeal before the Appellate Authority
alongwith an application for adducing additional evidence.
The Appellate Authority allowed the said application, re-
corded the additional evidence and allowed the appeal,
holding that: (i) the need of the respondent was bona fide;
(ii) that the vacant possession of the house purchased on
the 10th July 1971 by the respondent-landlord had not been
obtained; and (iii) that the sale of the aforesaid house by
the respondent was not a benami transaction. The High Court
dismissed the revision petition of the appellant in limine.
Dismissing the appeal by the appellant to this Court,
HELD: 1.1 Section 15 of the Act deals with the powers of
the appellate and revisional authorities under the Act.
Sub-s. (4) of the said section specifically provides that,
if necessary, after further enquiry as it thinks fit. either
personally or through the Controller, the appellate authori-
ty shall decide the appeal. Therefore, the appellate author-
ity has by express provision jurisdiction to admit addition-
al evidence. [520E]
517
State of Kerala v.K.M. Charia Abdullah & Co., [1965] 1
S.C.R. 601, relied upon.
1.2 The document relied upon on behalf of the appellant
was a registered document and recited that vacant possession
has been given. The document stated 'Kabza Khali makan ka
dia hai'. It was asserted that it meant that a vacant pos-
session, in fact, had been given. The oral evidence adduced
on behalf of the respondent indicated otherwise. The expres-
sion indicated above does not mean that actual physical
vacant possession has been handed over to the purchaser. In
a document of this type it can equally mean that the legal
right of the possession not the actual possession has been
handed over to the purchaser. Therefore, evidence was per-
missible to explain what it meant, and there was ample
justification on the evidence on record to come to the
conclusion that it was 'not physically vacant'. [524F --
525A]
In the instant case, admission of additional evidence
was warranted by the facts and the pleadings. By such admis-
sion of evidence, no prejudice has been caused to the appel-
lant. Indeed reading of the order of the appellate authority
makes it abundantly clear that the appellate authority had
adverted to all the facts recorded by the Rent Controller
and further considered the additional evidence. It is true
that in referring to the findings of the Rent Controller,
the appellate authority in its order had not specifically
referred to the paragraphs of the order of the Rent Control-
ler but that does not mean nor does it indicate that the
appellate authority had not considered evidence adduced
before the Rent Controller. The criticism that there was no
consideration of the evidence adduced by the appellant
before the Rent Controller by the appellate authority is,
therefore, not justified in the facts and circumstances of
the case. [521B -- E]
2. Though the Rent Act is a beneficial legislation, it
must be read reasonably and justly. If more limitations are
imposed upon the right to hold the property then it would
expose itself to the vice of unconstitutionality. Such an
approach in interpretation of beneficial statutes is not
warranted. It is true that one should iron out the creases
and should take a creative approach as to what was intended
by a particular provision but there is always, unless rebut-
ted, a presumption as to constitutionality and the Act
should be so read as to prevent it from being exposed to the
vice of unconstitutionality. [525F -- G]
In the instant case, the suit for eviction for the need
of the landlord was filed in January, 1972. The respondent
could not therefore be said, in view of the above premises
having been purchased and sold prior to the institution of
the suit, to have occupied another residential building in
the urban area. The
518
contention on behalf of the appellant, that the sale has
disentitled the respondent to the relief asked for because
he had in his choice the residential building for his occu-
pation but he sold it, is not maintainable. There was no
evidence either before the Rent Controller or before the
appellate authority that this sale of property was with the
intention or with a purpose to defeat the claim of the
appellant or to take out the respondent from the purview of
the limitation imposed by clause (1)(a) of sub-s.(3) of s.
13 of the Act. As the respondent had sold the properly 1-1/2
years before his suit for his need was instituted, it cannot
be said unless there was definite evidence that it was done
with the intention to defeat the appellant's claim. The
appellate authority accepted the respondent's need and found
him within the purview of the Act. The High Court did not
interfere in revision, nor shall this Court under Article
136 of the Constitution. [525D -- F, 526C -- F]
Rani Sartaj Kuari and Another v. Rani Deoraj Kuari, 15
Indian Appeals, 51 in-applicable.
State Bank of India v. Ghamandi Ram (Dead) Through Shri
Gurbax Rai, [1969] 3 SCR 681; Sundarsanam Maistri v. Nara-
simbhulu Maistri and Anr., ILR 25 Mad. 149, 154; Commission-
er of Wealth Tax, Kanpur & Others v. Chander Sen and Others,
[1986] 3 SCC 567; Lachhman Das v. Rent Control and Eviction
Officer, Bareilly and another AIR 1953 Allahabad 458 at 459,
paragraph 6; K.P. Varghese v. 1. T.O., Ernakulam and Anoth-
er[1981] 4 SCC 173 at 179-180 & Kasturi Lal Lakshmi Reddy v.
State of Jammu and Kashmir & Another [1980] 3 SCR 1338 at
1357 referred to:
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 459 of 1980.
From the Judgment and Order dated 10.1.1980 of the
Punjab and Haryana High Court in C.R. No. 34 of 1980
P.K. Banerji, V.C. Mahajan, Mrs. Urmila Kapoor and Ms.
A. Prabhawathy for the Appellant.
Raja Ram Agarwal, B.P. Maheshwari, S.N. Agarwal and B.S.
Gupta for the Respondent.
The Judgment of the Court was delivered by
SABYASACHI MUKHARJI, J. This appeal by special leave is
from the decision of the Punjab & Haryana High Court dated
10th January, 1980. The appellant is the tenant. The appeal
arises out of the summary dismissal of the revision petition
filed by the tenant under section 151 of the Code of Civil
519
Procedure from the decision of the appellate authority under
the Haryana Urban (Control of Rent and Eviction) Act, 1973
being Act No. 11 of 1973 (hereinafter referred to as the
'Act').
The appellant took on rent the premises in question from
the previous landlord in or about July, 1962. On or about
11th October, 1971, the respondent purchased the premises in
question being suit No. 292 of Ward No. 13, District Gurgaon
from the previous landlord. The premises hereinafter will be
referred as the 'premises'.
Few months prior thereto that is to say on 10th July,
1971, the respondent had purchased another house near Kabir
Bhavan, Gurgaon. The appellant's case was that the respond-
ent got vacant possession of the same. The respondent,
however, denied that assertion. On 7th August, 1972 the
respondent sold the said house near Kabir Bhavan. It is
asserted that the sale was to one Resham Devi who is alleged
to be the sister-in-law of the respondent. On the other hand
this is disputed and it appears that she is the sister-in-
law of the brother of the respondent. The assertion of the
appellant was that this was a benami transaction. On 14th
January, 1974, an application for ejectment was filed before
the Rent Controller by the respondent on grounds of (a)
non-payment of rent, (b) sub-letting, and (c) bona fide
requirement. So far as the grounds of non-payment of rent
and sub-letting, are concerned, it has been held by all the
courts in favour of the tenant. Those findings are not in
dispute in this appeal. The only ground that survives is the
bona fide requirement of the landlord. The Rent Controller
on 7th November, 1978 rejected the petition of the landlord
on the ground that the landlord had not been able to prove
all the ingredients of section 13(3)(a)(i) of the Act. The
respondent thereafter filed an appeal before the Appellate
Authority. Before the Authority, an, application was made
for admission of additional evidence by the
respondent/landlord. Such additional evidence were permitted
to be adduced and were recorded on various dates. The appeal
was allowed by the appellate authority on 7th December,
1979. The appellant herein filed a revision petition as
mentioned hereinbefore before the High Court under section
151 of the Code of Civil Procedure, and the same was dis-
missed by the High Court in limine on 10th January, 1980.
The only question that requires consideration in this
appeal, is whether on the facts and in the circumstances of
the case, the landlord came within the provisions of section
13(3)(a)(i) of the Act. The Act which is an Act to control
the increase of rent of certain buildings and rented land
situated within the limits of urban areas, and the eviction
of tenants therefrom, provides by section 13( 1 ) that a
tenant in possession of a building or a rented land shall
not be evicted therefrom except in accordance with the
provisions of the said
520
section. Sub-section (3)(a)(i) of section 13 provides as
follows:
"(3) A landlord may apply to the Controller for an order
directing the tenant to put the landlord in possession--
(a) in the case of a residential building, if---
(i) he requires it for his own occupation, is not occupying
another residential building in the urban area concerned and
has not vacated such building without sufficient cause after
the commencement of the 1949 Act in the said urban area."
Before we deal with the other contentions, it may be
mentioned that on behalf of the appellant, Shri P.K. Banerji
learned advocate contended that the appellate authority was
in error in firstly admitting additional evidence at the
appellate stage in the facts and circumstances of the case,
and secondly, the appellate authority had not considered the
evidence adduced by the appellant before the Rent Control-
ler. We are unable to accept these submissions urged on
behalf of the appellant. The appellate authority, it must be
mentioned, has normally the same jurisdiction to admit
additional evidence as the trial court if the facts and
circumstances so warrant.
Furthermore, in the instant case section 15 of the Act
deals with the powers of the appellate and revisional au-
thorities under the Act. Sub-section (4) of the said section
specifically provides that if necessary, after further
enquiry as it thinks fit either personally or through the
Controller, the appellate authority shall decide the appeal.
Therefore, the appellate authority has by express provision
jurisdiction to admit additional evidence. Indeed in this
case from the written statement, it appears that the only
contention that was sought to be raised was about the extent
of the accommodation available to the landlord in the ances-
tral house of the landlord.
The allegation about the alleged sale of the premises
near Kabir Bhavan was not clearly spelled out. Therefore, if
the interest of justice so demanded, the appellate authority
was justified in admitting the additional evidence. The
parties in this case had ample opportunity to test the
veracity and to examine and submit on the value of such
additional evidence. No prejudice could be said to have been
caused by admission of such additional evidence. In State of
Kerala v.K.M. Charia Abdullah & Co., [1965] 1 SCR 601 this
Court was dealing with similar power under Madras General
Sales Tax Act, 1939 and observed at page 610 of the report
that by sub-section (4) of section 250 of the Income Tax
Act, 1961 which is similar to section 33(4) of the Indian
Incometax Act, 1922, the Commissioner was authorised for
disposing of the appeal to
521
make such further enquiry or to direct the Income-tax Offi-
cer to make further enquiry as he thought fit and report
upon them. This Court held that it could not denied that the
said sub-section conferred upon the appellate or revising
authority power to make such enquiry as it thought fit for
fair disposal of appeal. We are, therefore, clearly of-the
opinion that in the facts and circumstances of a particular
case, the appellate authority has jurisdiction under the Act
in question to admit additional evidence. We are further of
the opinion that in this case admission of such additional
evidence was warranted by the facts and the pleadings in
this case. We are satisfied that by such admission of evi-
dence, no prejudice has been caused to the appellant. Indeed
reading of the order of the appellate authority makes it
abundantly clear that the appellate authority had adverted
to all the facts recorded by the Rent Controller and further
considered the additional evidence. It is true that in
referring to the findings of the Rent Controller, the appel-
late authority in its order had not specifically referred to
the paragraphs of the order of the Rent Controller but that
does not mean nor does it indicate that the appellate au-
thority had not considered evidence adduced before the Rent
Controller. We are, therefore, unable to sustain the objec-
tions urged on behalf of the appellant by Shri Banerji, on
admission and consideration of the additional evidence.
The appellate authority noted that the party had led
evidence before the Rent Controller and after hearing the
party, the Rent Controller held in the manner he did. The
appellate authority therefore was conscious of the evidence
adduced by the appellant before the Rent Controller. The
criticism that there was no consideration of the evidence
adduced by the appellant before the Rent Controller by the
appellate authority is, therefore, not justified in the
facts and circumstances of the case. The Rent Controller as
noted hereinbefore held that the appellant had proved the
bona fide requirement. The appellate authority had noted the
evidence adduced by the respondent before the appellate
authority. It is clear that the residential house of the
family of the petitioner was having two rooms only and there
was large number of persons occupying the two rooms. The
family of the petitioner consisted of really seven brothers
and one sister. Admittedly two brothers and their families
were occupying the said premises. The premises in question
belonged to the grand father of the respondent. The grand
father was an advocate. He died. After his death his chamber
was let out to Laxmi Commercial Bank. It was contended that
the respondent was a co-parcener in the said joint family
house. It was submitted that if the said chamber which was a
big room was available, then, it could not be said that
there was dearth of the accommodation in the ancestral
house. It is true that the appellate authority had proceeded
on the basis that the two rooms for occupation were avail-
able in the said house for the father and the two sons
including the respondent and
522
his family in the ancestral house. But assuming that even if
we take into consideration the chamber of the late grand
father which had been let out to Laxmi Commercial Bank, that
will also be wholly insufficient to meet the reasonable and
bona fide requirement of the respondent. The appellate
authority further held that the appellant was a licensee in
respect of the ancestral house and he was staying there with
the permission or the licence given by his father and he had
no right and as such his interest in the ancestral house
could not be considered to be "occupying another residential
house" in terms of Clause (1) of sub-section 3(a) of section
13 of the Act. It was submitted before us that this is
incorrect because a co-parcener in respect of the ancestral
house was a co-owner and an owner could not be considered to
be a licensee of the father in respect of a house belonging
to Mitakshara joint family. There is no dispute that the
family in question is governed by the Mitakshara School of
Hindu Law.
It is abundantly clear that Ashok, Isher and Jagadish
being the brothers of the appellant and the family belonging
to the joint family of the respondent with their children
were staying in the ancestral house. Lalit, another brother,
had another house. As mentioned hereinbefore there were
other persons but about their stay there was no clear evi-
dence. It is asserted by the respondent that they are seven
brothers and one sister. But even assuming that Ashok, Isher
and Jagadish and the children stay in the ancestral house
and assuming that the big room which had been let out to
Laxmi Commercial Bank is taken into consideration, the
accommodation is still very inadequate for reasonable and
bona fide requirement of the landlords. The question, there-
fore, whether the respondent was a licensee of his father or
a co-owner of the property, namely the ancestral house is
not really necessary to be decided. But it was contended on
behalf of the appellant that this approach of the appellate
authority had vitiated the conclusion. It is therefore
necessary to allay the grievance of the appellant on this
score.
Our attention was drawn to a decision of the Judicial
Committee in Rani Sartaj Kuari and Another v. Rani Deoraj
Kuari, [15] Indian Appeals, 51 (Mother and Guardian of Lal
Narindur Bahadur Pal). That case was in respect of an impat-
ible estate governed by the Mitakshara School of Hindu Law.
There was a custom that the estate was impartible and was
descendible to single heir by the rule of primogeniture. It
was held that in order to render alienations by the rejah in
that case invalid as made without the consent of his son it
must be shown.that the rajah's power of alienation was
excluded by the custom or by the nature of the tenure. In
such a raj the son is not a co-sharer with his father. The
Judicial Committee further observed that property in ances-
tral estate acquired by birth under the Mitakshara law is so
connected with the fight to partition that it does not exist
independently of such fight. At
523
page 64 of the report, the Judicial Committee observed that
the property in the paternal or ancestral estate acquired by
birth under the Mitakshara law is, in the opinion of the
Judicial Committee, so connected with the fight to parti-
tion, that it did not exist where there was no right to it.
We are of the opinion that no much support can be sought for
by the appellant from the said decision; Here in the instant
case, the question is whether the respondent who undoubtedly
was governed by the Mitakshara School of Law, had acquired a
fight to ancestral property by his birth. But this question
has to be judged in the light of the Hindu Succession Act,
1956. Reliance was also placed on State Bank of India v.
Ghamandi Ram (Dead) Through Shri Gurbax Rai [1969] 3 SCR 681
at page 686 of the report, this Court observed that accord-
ing to the Mitakshara School of Hindu law all the property
of a Hindu joint family was held in collective ownership by
all the coparceners in a quasi-corporate capacity. The Court
approved the observations of Mr. Justice Bhashyam Ayyanger
in Sundarsanam Maistri v. Narasimhulu Maistri and Anr. [ILR
25 Mad. 149, 154. But the question in the instant case is
the position of the respondent after coming into operation
of the Hindu Succession Act, 1956. Shri Banerji drew our
attention to Mulla's 'Hindu Law' 15th Edition at page 924
where the learned commentator had discussed effect in re-
spect of the devolution of interest in Mitakshara coparce-
nary property of the coming into operation of the Hindu
Succession Act, 1956.
This question has been considered by this Court in
Commissioner of Wealth Tax, Kanpur and Others v. Chander Sen
and Others, [1986] 3 SCC 567 where one of us (Sabyasachi
Mukharji, J) observed that under the Hindu Law, the moment a
son is born, he gets a share in father's property and become
part of the coparcenary. His fight accrues to him not on
the' death of the father or inheritance from the father but
with the very fact of his birth. Normally, therefore whenev-
er the father gets a property from whatever source, from the
grandfather or from any other source, be it separated
property or not, his son should have a share in that and it
will become part of the joint Hindu family of his son and
grandson and other members who form joint Hindu family with
him. This Court observed that this position has been affect-
ed by section8 of the Hindu Succession Act, 1956 and, there-
fore, after the Act, when the son inherited the property in
the situation contemplated by section 8, he does not take it
as Kar of his own undivided family but takes it in his
individual capacity. At pages 577 to 578 of the report, this
Court dealt with the effect of section 6 of the Hindu Suc-
cession Act, 1956 and. the commentary made by Mulla, 15th
Edn. pages 924-926 as well as Mayne's on Hindu Law 12th
Edition pages 918919. Shri Banerji relied on the said obser-
vations of Mayne on 'Hindu Law', 12th Edn. at pages 918-919.
This Court observed in the aforesaid decision that the views
expressed by the Allahabad High Court, the Madras High
Court, the Madhya Pradesh High Court and the Andhra Pradesh
High Court appeared to
524
be correct and was unable to accept the views of the Gujarat
High Court. To the similar effect is the observation of
learned author of Mayne's Hindu Law, 12th Edn. page 919. In
that view of the matter, it would be difficult to hold that
property which developed on a Hindu under section 8 of the
Hindu Succession Act, 1956 would be HUF in his hand vis-a-
vis his own sons. If that be the position then the property
which developed upon the father of the respondent in the
instant case on the demise of his grandfather could not be
said to be HUF property. If that is so, then the appellate
authority was fight in holding that the respondent was a
licensee of his father in respect of the ancestral house.
But as mentioned hereinbefore, even if we proceed on the
assumption that the respondent was a member of the HUF which
owned the ancestral house, having regard to his share in the
property and having regard to the need of other sons of the
father who were living in the ancestral house along with
their families, the appellate authority was ,still fight in
holding *hat the need of the respondent was bona fide.
The second aspect of the matter which was canvassed
before us was that the respondent had purchased another
house near Kabir Bhavan in 1971 and there were nine rooms in
the said house. It was the appellant's contention that it
was sold to Smt. Resham Devi which was a benami transaction.
It was further his contention that in respect of the said
house the respondent had got vacant possession. Thirdly, it
was contended that the respondent had within his choice to
keep the said premises but he sold the said premises in
question. Therefore he does not come within the conditions
stipulated in section 13(3)(a)(i) of the Act. The appellate
authority on appraisal of evidence before the Rent Control-
ler as well as before it came to the conclusion that vacant
possession had not been obtained. There was evidence on
record to come to that conclusion.
Our attention was drawn to the document on behalf of the
appellant in support of contention that the document which
was registered document recited that vacant possession has
been given. The document stated 'Kabza Khan maken ka dia
hai'. It was asserted that it meant that vacant possession
in fact had been given. The oral evidence adduced indicated
otherwise. Indeed the expression aforesaid does not mean
that actual physical vacant possession had been handed over
to the purchaser. In document of this type it can equally
mean that the legal right of possession not the actual
possession had been handed over to the purchaser. Therefore,
evidence was permissible to explain what it meant. Reliance
for this purpose was placed on a decision of the Division
Bench of the Allahabad High Court in Lachhman Das v. Rent
Control and Eviction Officer, Bareilly and another., AIR
[1953] Allahabad 458 at 459, paragarph 6. Therefore in the
instant case even if the legal right of occupation had
passed on which, in our opinion, was sought to be conveyed
by the expression noted
525
hereinbefore, then whether the premises in question was
actually vacant to be occupied by the respondent is a ques-
tion on which the oral evidence could be adduced. There was
ample justification on the evidence on record to come to the
conclusion that it was 'not physically vacant'. The expres-
sion noted above therefore on this aspect is really non
sequetur and evidence would clinch the issue. There was the
evidence for the appellate authority to come to the conclu-
sion that the house near Kabit Bhavan was not vacant. It
acted on the same and in our opinion it did not commit any
error in so doing.
The next aspect urged was that it was benami transaction
because the father of the respondent has gone to the Regis-
tration office. In view of the evidence discussed by the
appellate authority, specially the income-tax records and
other records to which it is not necessary to advert in
detail as well as the oral testamoney in this case, the
appellate authority rejected the contention that the sale
was a henami transaction by the respondent. The most impor-
tant aspect, however, as was highlighted by the respondent
was that the said property was purchased in July, 1971 and
sold in August, 1972 because it was not in vacant posses-
sion.
In the instant case suit for eviction in question for
the need of the landlord was filed in January, 1972. There-
fore, the respondent could not be said in view of the said
premises having been purchased and sold by him prior to the
institution of the suit, to have occupied another residen-
tial building in the urban area. It was contended that by
sale the respondent has disentitled himself to the relief
asked for because he had in his choice the residential
building for his occupation but he sold it. We are unable to
accept this contention. There is no evidence either before
the Rent Controller or before the appellate authority that
this sale to Resham Devi was with an intention or with a
purpose to defeat the claim of the appellant or to take out
the respondent from the purview of the limitation imposed by
clause ( 1 ) (a) of sub-section (3) of section 13 of the
Act. If we read in such manner the Act in question, the Act
would expose itself to the vice of unconstitutionality. It
is well-settled that though the Rent Act. is a beneficial
legislation, it must be read reasonably and justly. If more
limitations are imposed upon the right to hold the property
then it would expose itself to the vice of unconstitutional-
ity. Such an approach in interpretation of beneficial stat-
utes is not warranted. It is true that one should iron out
the creases and should take a creative approach as to what
was intended by a particular provision but there is always,.
unless rebutted a presumption as to constitutionality and
the Act should be so read as to prevent it from being ex-
posed to the vice of un-constitutionality. State is also
presumed to act fairly. See in this connection the observa-
tions in State of Karnataka and Another v. M/s. Hans Corpo-
ration; [1980] 4 S.C.C. 697 at 704 & 706 and K.P. Varghesev.
Income Tax Officer, Ernakulam and Another, [1981] 4S.C.C.
173 at 179-180
526
Paragraphs 5 & 6). See also the observations of this Court
in Kasturi Lal Lakshmi Reddv v. State of Jammu and Kashmir &
Another, [1980] 3 SCR 1338 at 1357.
In fact the respondent did not have a house in his
possession. He purchase one before, but as it was not va-
cant, he sold away ,,before the institution of the suit.
There was no restriction by the Act on sale and alienation
of property. At the relevant time the respondent fulfilled
all the requirements to maintain an action for eviction.
Shri Raja Ram Agarwala, counsel for the respondent, submit-
ted before us that we should take a creative, reasonable and
rational approach in interpreting the statute. We should
not, he submitted, put such an interpretation as would
prevent sale or mortgage of the property by the owner and in
this case he was justified in saying that the landlord
respondent did not have vacant possession. As the facts of
this case warrant and in fact the respondent had sold away
the property 1 1/2 years before his suit for his need was
instituted, it cannot be said unless there was definite
evidence that it was done with the intention to defeat the
appellant's claim so as to be read that the landlord occu-
pied another residential house at the relevant time i.e. at
the time of institution of the suit.
The appellate authority accepted the respondent's need
and found him within the purview of the Act. The High Court
did not interfere in revision, nor shall we under Article
136 of the Constitution.
The appeal, therefore, fails and is accordingly dis-
missed. Interim orders are vacated. In the facts and circum-
stances of the case, however, the parties will pay and bear
their own costs.
M.L.A. Appeal
dismissed.
527
PETITIONER:
YUDHISHTER
Vs.
RESPONDENT:
ASHOK KUMAR
DATE OF JUDGMENT11/12/1986
BENCH:
MUKHARJI, SABYASACHI (J)
BENCH:
MUKHARJI, SABYASACHI (J)
SINGH, K.N. (J)
CITATION:
1987 AIR 558 1987 SCR (1) 516
1987 SCC (1) 204 JT 1986 1021
1986 SCALE (2)1044
CITATOR INFO :
RF 1991 SC1654 (27)
ACT:
Haryana Urban (Control of Rent and Eviction) Act, 1973,
s. 13(3)(a)i) and 15(4)--Application for ejectment--Bona
fide requirement of building by landlord--Jurisdiction of
appellate authority to admit additional evidence.
Statutory interpretation--Rent Act-A beneficial
legislation-Whether it should be read reasonably and justly.
HEADNOTE:
On 11th October 1971, the respondent-landlord purchased
a house in which the appellant was a tenant since 1962. He
had also purchased another house in the same district on
10.7.1971 but sold away the same on 7.8.72 as it was not
vacant. On 14th January, 1974, the respondent-landlord filed
an eviction petition against the appellant-tenant inter alia
on the ground of bona fide personal requirement. The Rent
Controller rejected the petition holding that all the ingre-
dients of s. 13(3)(a)(i) of the Haryana Urban (Control of
Rent and Eviction) Act 1973 had not been proved.
Aggrieved by the order of the Rent Controller, the
respondent filed an appeal before the Appellate Authority
alongwith an application for adducing additional evidence.
The Appellate Authority allowed the said application, re-
corded the additional evidence and allowed the appeal,
holding that: (i) the need of the respondent was bona fide;
(ii) that the vacant possession of the house purchased on
the 10th July 1971 by the respondent-landlord had not been
obtained; and (iii) that the sale of the aforesaid house by
the respondent was not a benami transaction. The High Court
dismissed the revision petition of the appellant in limine.
Dismissing the appeal by the appellant to this Court,
HELD: 1.1 Section 15 of the Act deals with the powers of
the appellate and revisional authorities under the Act.
Sub-s. (4) of the said section specifically provides that,
if necessary, after further enquiry as it thinks fit. either
personally or through the Controller, the appellate authori-
ty shall decide the appeal. Therefore, the appellate author-
ity has by express provision jurisdiction to admit addition-
al evidence. [520E]
517
State of Kerala v.K.M. Charia Abdullah & Co., [1965] 1
S.C.R. 601, relied upon.
1.2 The document relied upon on behalf of the appellant
was a registered document and recited that vacant possession
has been given. The document stated 'Kabza Khali makan ka
dia hai'. It was asserted that it meant that a vacant pos-
session, in fact, had been given. The oral evidence adduced
on behalf of the respondent indicated otherwise. The expres-
sion indicated above does not mean that actual physical
vacant possession has been handed over to the purchaser. In
a document of this type it can equally mean that the legal
right of the possession not the actual possession has been
handed over to the purchaser. Therefore, evidence was per-
missible to explain what it meant, and there was ample
justification on the evidence on record to come to the
conclusion that it was 'not physically vacant'. [524F --
525A]
In the instant case, admission of additional evidence
was warranted by the facts and the pleadings. By such admis-
sion of evidence, no prejudice has been caused to the appel-
lant. Indeed reading of the order of the appellate authority
makes it abundantly clear that the appellate authority had
adverted to all the facts recorded by the Rent Controller
and further considered the additional evidence. It is true
that in referring to the findings of the Rent Controller,
the appellate authority in its order had not specifically
referred to the paragraphs of the order of the Rent Control-
ler but that does not mean nor does it indicate that the
appellate authority had not considered evidence adduced
before the Rent Controller. The criticism that there was no
consideration of the evidence adduced by the appellant
before the Rent Controller by the appellate authority is,
therefore, not justified in the facts and circumstances of
the case. [521B -- E]
2. Though the Rent Act is a beneficial legislation, it
must be read reasonably and justly. If more limitations are
imposed upon the right to hold the property then it would
expose itself to the vice of unconstitutionality. Such an
approach in interpretation of beneficial statutes is not
warranted. It is true that one should iron out the creases
and should take a creative approach as to what was intended
by a particular provision but there is always, unless rebut-
ted, a presumption as to constitutionality and the Act
should be so read as to prevent it from being exposed to the
vice of unconstitutionality. [525F -- G]
In the instant case, the suit for eviction for the need
of the landlord was filed in January, 1972. The respondent
could not therefore be said, in view of the above premises
having been purchased and sold prior to the institution of
the suit, to have occupied another residential building in
the urban area. The
518
contention on behalf of the appellant, that the sale has
disentitled the respondent to the relief asked for because
he had in his choice the residential building for his occu-
pation but he sold it, is not maintainable. There was no
evidence either before the Rent Controller or before the
appellate authority that this sale of property was with the
intention or with a purpose to defeat the claim of the
appellant or to take out the respondent from the purview of
the limitation imposed by clause (1)(a) of sub-s.(3) of s.
13 of the Act. As the respondent had sold the properly 1-1/2
years before his suit for his need was instituted, it cannot
be said unless there was definite evidence that it was done
with the intention to defeat the appellant's claim. The
appellate authority accepted the respondent's need and found
him within the purview of the Act. The High Court did not
interfere in revision, nor shall this Court under Article
136 of the Constitution. [525D -- F, 526C -- F]
Rani Sartaj Kuari and Another v. Rani Deoraj Kuari, 15
Indian Appeals, 51 in-applicable.
State Bank of India v. Ghamandi Ram (Dead) Through Shri
Gurbax Rai, [1969] 3 SCR 681; Sundarsanam Maistri v. Nara-
simbhulu Maistri and Anr., ILR 25 Mad. 149, 154; Commission-
er of Wealth Tax, Kanpur & Others v. Chander Sen and Others,
[1986] 3 SCC 567; Lachhman Das v. Rent Control and Eviction
Officer, Bareilly and another AIR 1953 Allahabad 458 at 459,
paragraph 6; K.P. Varghese v. 1. T.O., Ernakulam and Anoth-
er[1981] 4 SCC 173 at 179-180 & Kasturi Lal Lakshmi Reddy v.
State of Jammu and Kashmir & Another [1980] 3 SCR 1338 at
1357 referred to:
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 459 of 1980.
From the Judgment and Order dated 10.1.1980 of the
Punjab and Haryana High Court in C.R. No. 34 of 1980
P.K. Banerji, V.C. Mahajan, Mrs. Urmila Kapoor and Ms.
A. Prabhawathy for the Appellant.
Raja Ram Agarwal, B.P. Maheshwari, S.N. Agarwal and B.S.
Gupta for the Respondent.
The Judgment of the Court was delivered by
SABYASACHI MUKHARJI, J. This appeal by special leave is
from the decision of the Punjab & Haryana High Court dated
10th January, 1980. The appellant is the tenant. The appeal
arises out of the summary dismissal of the revision petition
filed by the tenant under section 151 of the Code of Civil
519
Procedure from the decision of the appellate authority under
the Haryana Urban (Control of Rent and Eviction) Act, 1973
being Act No. 11 of 1973 (hereinafter referred to as the
'Act').
The appellant took on rent the premises in question from
the previous landlord in or about July, 1962. On or about
11th October, 1971, the respondent purchased the premises in
question being suit No. 292 of Ward No. 13, District Gurgaon
from the previous landlord. The premises hereinafter will be
referred as the 'premises'.
Few months prior thereto that is to say on 10th July,
1971, the respondent had purchased another house near Kabir
Bhavan, Gurgaon. The appellant's case was that the respond-
ent got vacant possession of the same. The respondent,
however, denied that assertion. On 7th August, 1972 the
respondent sold the said house near Kabir Bhavan. It is
asserted that the sale was to one Resham Devi who is alleged
to be the sister-in-law of the respondent. On the other hand
this is disputed and it appears that she is the sister-in-
law of the brother of the respondent. The assertion of the
appellant was that this was a benami transaction. On 14th
January, 1974, an application for ejectment was filed before
the Rent Controller by the respondent on grounds of (a)
non-payment of rent, (b) sub-letting, and (c) bona fide
requirement. So far as the grounds of non-payment of rent
and sub-letting, are concerned, it has been held by all the
courts in favour of the tenant. Those findings are not in
dispute in this appeal. The only ground that survives is the
bona fide requirement of the landlord. The Rent Controller
on 7th November, 1978 rejected the petition of the landlord
on the ground that the landlord had not been able to prove
all the ingredients of section 13(3)(a)(i) of the Act. The
respondent thereafter filed an appeal before the Appellate
Authority. Before the Authority, an, application was made
for admission of additional evidence by the
respondent/landlord. Such additional evidence were permitted
to be adduced and were recorded on various dates. The appeal
was allowed by the appellate authority on 7th December,
1979. The appellant herein filed a revision petition as
mentioned hereinbefore before the High Court under section
151 of the Code of Civil Procedure, and the same was dis-
missed by the High Court in limine on 10th January, 1980.
The only question that requires consideration in this
appeal, is whether on the facts and in the circumstances of
the case, the landlord came within the provisions of section
13(3)(a)(i) of the Act. The Act which is an Act to control
the increase of rent of certain buildings and rented land
situated within the limits of urban areas, and the eviction
of tenants therefrom, provides by section 13( 1 ) that a
tenant in possession of a building or a rented land shall
not be evicted therefrom except in accordance with the
provisions of the said
520
section. Sub-section (3)(a)(i) of section 13 provides as
follows:
"(3) A landlord may apply to the Controller for an order
directing the tenant to put the landlord in possession--
(a) in the case of a residential building, if---
(i) he requires it for his own occupation, is not occupying
another residential building in the urban area concerned and
has not vacated such building without sufficient cause after
the commencement of the 1949 Act in the said urban area."
Before we deal with the other contentions, it may be
mentioned that on behalf of the appellant, Shri P.K. Banerji
learned advocate contended that the appellate authority was
in error in firstly admitting additional evidence at the
appellate stage in the facts and circumstances of the case,
and secondly, the appellate authority had not considered the
evidence adduced by the appellant before the Rent Control-
ler. We are unable to accept these submissions urged on
behalf of the appellant. The appellate authority, it must be
mentioned, has normally the same jurisdiction to admit
additional evidence as the trial court if the facts and
circumstances so warrant.
Furthermore, in the instant case section 15 of the Act
deals with the powers of the appellate and revisional au-
thorities under the Act. Sub-section (4) of the said section
specifically provides that if necessary, after further
enquiry as it thinks fit either personally or through the
Controller, the appellate authority shall decide the appeal.
Therefore, the appellate authority has by express provision
jurisdiction to admit additional evidence. Indeed in this
case from the written statement, it appears that the only
contention that was sought to be raised was about the extent
of the accommodation available to the landlord in the ances-
tral house of the landlord.
The allegation about the alleged sale of the premises
near Kabir Bhavan was not clearly spelled out. Therefore, if
the interest of justice so demanded, the appellate authority
was justified in admitting the additional evidence. The
parties in this case had ample opportunity to test the
veracity and to examine and submit on the value of such
additional evidence. No prejudice could be said to have been
caused by admission of such additional evidence. In State of
Kerala v.K.M. Charia Abdullah & Co., [1965] 1 SCR 601 this
Court was dealing with similar power under Madras General
Sales Tax Act, 1939 and observed at page 610 of the report
that by sub-section (4) of section 250 of the Income Tax
Act, 1961 which is similar to section 33(4) of the Indian
Incometax Act, 1922, the Commissioner was authorised for
disposing of the appeal to
521
make such further enquiry or to direct the Income-tax Offi-
cer to make further enquiry as he thought fit and report
upon them. This Court held that it could not denied that the
said sub-section conferred upon the appellate or revising
authority power to make such enquiry as it thought fit for
fair disposal of appeal. We are, therefore, clearly of-the
opinion that in the facts and circumstances of a particular
case, the appellate authority has jurisdiction under the Act
in question to admit additional evidence. We are further of
the opinion that in this case admission of such additional
evidence was warranted by the facts and the pleadings in
this case. We are satisfied that by such admission of evi-
dence, no prejudice has been caused to the appellant. Indeed
reading of the order of the appellate authority makes it
abundantly clear that the appellate authority had adverted
to all the facts recorded by the Rent Controller and further
considered the additional evidence. It is true that in
referring to the findings of the Rent Controller, the appel-
late authority in its order had not specifically referred to
the paragraphs of the order of the Rent Controller but that
does not mean nor does it indicate that the appellate au-
thority had not considered evidence adduced before the Rent
Controller. We are, therefore, unable to sustain the objec-
tions urged on behalf of the appellant by Shri Banerji, on
admission and consideration of the additional evidence.
The appellate authority noted that the party had led
evidence before the Rent Controller and after hearing the
party, the Rent Controller held in the manner he did. The
appellate authority therefore was conscious of the evidence
adduced by the appellant before the Rent Controller. The
criticism that there was no consideration of the evidence
adduced by the appellant before the Rent Controller by the
appellate authority is, therefore, not justified in the
facts and circumstances of the case. The Rent Controller as
noted hereinbefore held that the appellant had proved the
bona fide requirement. The appellate authority had noted the
evidence adduced by the respondent before the appellate
authority. It is clear that the residential house of the
family of the petitioner was having two rooms only and there
was large number of persons occupying the two rooms. The
family of the petitioner consisted of really seven brothers
and one sister. Admittedly two brothers and their families
were occupying the said premises. The premises in question
belonged to the grand father of the respondent. The grand
father was an advocate. He died. After his death his chamber
was let out to Laxmi Commercial Bank. It was contended that
the respondent was a co-parcener in the said joint family
house. It was submitted that if the said chamber which was a
big room was available, then, it could not be said that
there was dearth of the accommodation in the ancestral
house. It is true that the appellate authority had proceeded
on the basis that the two rooms for occupation were avail-
able in the said house for the father and the two sons
including the respondent and
522
his family in the ancestral house. But assuming that even if
we take into consideration the chamber of the late grand
father which had been let out to Laxmi Commercial Bank, that
will also be wholly insufficient to meet the reasonable and
bona fide requirement of the respondent. The appellate
authority further held that the appellant was a licensee in
respect of the ancestral house and he was staying there with
the permission or the licence given by his father and he had
no right and as such his interest in the ancestral house
could not be considered to be "occupying another residential
house" in terms of Clause (1) of sub-section 3(a) of section
13 of the Act. It was submitted before us that this is
incorrect because a co-parcener in respect of the ancestral
house was a co-owner and an owner could not be considered to
be a licensee of the father in respect of a house belonging
to Mitakshara joint family. There is no dispute that the
family in question is governed by the Mitakshara School of
Hindu Law.
It is abundantly clear that Ashok, Isher and Jagadish
being the brothers of the appellant and the family belonging
to the joint family of the respondent with their children
were staying in the ancestral house. Lalit, another brother,
had another house. As mentioned hereinbefore there were
other persons but about their stay there was no clear evi-
dence. It is asserted by the respondent that they are seven
brothers and one sister. But even assuming that Ashok, Isher
and Jagadish and the children stay in the ancestral house
and assuming that the big room which had been let out to
Laxmi Commercial Bank is taken into consideration, the
accommodation is still very inadequate for reasonable and
bona fide requirement of the landlords. The question, there-
fore, whether the respondent was a licensee of his father or
a co-owner of the property, namely the ancestral house is
not really necessary to be decided. But it was contended on
behalf of the appellant that this approach of the appellate
authority had vitiated the conclusion. It is therefore
necessary to allay the grievance of the appellant on this
score.
Our attention was drawn to a decision of the Judicial
Committee in Rani Sartaj Kuari and Another v. Rani Deoraj
Kuari, [15] Indian Appeals, 51 (Mother and Guardian of Lal
Narindur Bahadur Pal). That case was in respect of an impat-
ible estate governed by the Mitakshara School of Hindu Law.
There was a custom that the estate was impartible and was
descendible to single heir by the rule of primogeniture. It
was held that in order to render alienations by the rejah in
that case invalid as made without the consent of his son it
must be shown.that the rajah's power of alienation was
excluded by the custom or by the nature of the tenure. In
such a raj the son is not a co-sharer with his father. The
Judicial Committee further observed that property in ances-
tral estate acquired by birth under the Mitakshara law is so
connected with the fight to partition that it does not exist
independently of such fight. At
523
page 64 of the report, the Judicial Committee observed that
the property in the paternal or ancestral estate acquired by
birth under the Mitakshara law is, in the opinion of the
Judicial Committee, so connected with the fight to parti-
tion, that it did not exist where there was no right to it.
We are of the opinion that no much support can be sought for
by the appellant from the said decision; Here in the instant
case, the question is whether the respondent who undoubtedly
was governed by the Mitakshara School of Law, had acquired a
fight to ancestral property by his birth. But this question
has to be judged in the light of the Hindu Succession Act,
1956. Reliance was also placed on State Bank of India v.
Ghamandi Ram (Dead) Through Shri Gurbax Rai [1969] 3 SCR 681
at page 686 of the report, this Court observed that accord-
ing to the Mitakshara School of Hindu law all the property
of a Hindu joint family was held in collective ownership by
all the coparceners in a quasi-corporate capacity. The Court
approved the observations of Mr. Justice Bhashyam Ayyanger
in Sundarsanam Maistri v. Narasimhulu Maistri and Anr. [ILR
25 Mad. 149, 154. But the question in the instant case is
the position of the respondent after coming into operation
of the Hindu Succession Act, 1956. Shri Banerji drew our
attention to Mulla's 'Hindu Law' 15th Edition at page 924
where the learned commentator had discussed effect in re-
spect of the devolution of interest in Mitakshara coparce-
nary property of the coming into operation of the Hindu
Succession Act, 1956.
This question has been considered by this Court in
Commissioner of Wealth Tax, Kanpur and Others v. Chander Sen
and Others, [1986] 3 SCC 567 where one of us (Sabyasachi
Mukharji, J) observed that under the Hindu Law, the moment a
son is born, he gets a share in father's property and become
part of the coparcenary. His fight accrues to him not on
the' death of the father or inheritance from the father but
with the very fact of his birth. Normally, therefore whenev-
er the father gets a property from whatever source, from the
grandfather or from any other source, be it separated
property or not, his son should have a share in that and it
will become part of the joint Hindu family of his son and
grandson and other members who form joint Hindu family with
him. This Court observed that this position has been affect-
ed by section8 of the Hindu Succession Act, 1956 and, there-
fore, after the Act, when the son inherited the property in
the situation contemplated by section 8, he does not take it
as Kar of his own undivided family but takes it in his
individual capacity. At pages 577 to 578 of the report, this
Court dealt with the effect of section 6 of the Hindu Suc-
cession Act, 1956 and. the commentary made by Mulla, 15th
Edn. pages 924-926 as well as Mayne's on Hindu Law 12th
Edition pages 918919. Shri Banerji relied on the said obser-
vations of Mayne on 'Hindu Law', 12th Edn. at pages 918-919.
This Court observed in the aforesaid decision that the views
expressed by the Allahabad High Court, the Madras High
Court, the Madhya Pradesh High Court and the Andhra Pradesh
High Court appeared to
524
be correct and was unable to accept the views of the Gujarat
High Court. To the similar effect is the observation of
learned author of Mayne's Hindu Law, 12th Edn. page 919. In
that view of the matter, it would be difficult to hold that
property which developed on a Hindu under section 8 of the
Hindu Succession Act, 1956 would be HUF in his hand vis-a-
vis his own sons. If that be the position then the property
which developed upon the father of the respondent in the
instant case on the demise of his grandfather could not be
said to be HUF property. If that is so, then the appellate
authority was fight in holding that the respondent was a
licensee of his father in respect of the ancestral house.
But as mentioned hereinbefore, even if we proceed on the
assumption that the respondent was a member of the HUF which
owned the ancestral house, having regard to his share in the
property and having regard to the need of other sons of the
father who were living in the ancestral house along with
their families, the appellate authority was ,still fight in
holding *hat the need of the respondent was bona fide.
The second aspect of the matter which was canvassed
before us was that the respondent had purchased another
house near Kabir Bhavan in 1971 and there were nine rooms in
the said house. It was the appellant's contention that it
was sold to Smt. Resham Devi which was a benami transaction.
It was further his contention that in respect of the said
house the respondent had got vacant possession. Thirdly, it
was contended that the respondent had within his choice to
keep the said premises but he sold the said premises in
question. Therefore he does not come within the conditions
stipulated in section 13(3)(a)(i) of the Act. The appellate
authority on appraisal of evidence before the Rent Control-
ler as well as before it came to the conclusion that vacant
possession had not been obtained. There was evidence on
record to come to that conclusion.
Our attention was drawn to the document on behalf of the
appellant in support of contention that the document which
was registered document recited that vacant possession has
been given. The document stated 'Kabza Khan maken ka dia
hai'. It was asserted that it meant that vacant possession
in fact had been given. The oral evidence adduced indicated
otherwise. Indeed the expression aforesaid does not mean
that actual physical vacant possession had been handed over
to the purchaser. In document of this type it can equally
mean that the legal right of possession not the actual
possession had been handed over to the purchaser. Therefore,
evidence was permissible to explain what it meant. Reliance
for this purpose was placed on a decision of the Division
Bench of the Allahabad High Court in Lachhman Das v. Rent
Control and Eviction Officer, Bareilly and another., AIR
[1953] Allahabad 458 at 459, paragarph 6. Therefore in the
instant case even if the legal right of occupation had
passed on which, in our opinion, was sought to be conveyed
by the expression noted
525
hereinbefore, then whether the premises in question was
actually vacant to be occupied by the respondent is a ques-
tion on which the oral evidence could be adduced. There was
ample justification on the evidence on record to come to the
conclusion that it was 'not physically vacant'. The expres-
sion noted above therefore on this aspect is really non
sequetur and evidence would clinch the issue. There was the
evidence for the appellate authority to come to the conclu-
sion that the house near Kabit Bhavan was not vacant. It
acted on the same and in our opinion it did not commit any
error in so doing.
The next aspect urged was that it was benami transaction
because the father of the respondent has gone to the Regis-
tration office. In view of the evidence discussed by the
appellate authority, specially the income-tax records and
other records to which it is not necessary to advert in
detail as well as the oral testamoney in this case, the
appellate authority rejected the contention that the sale
was a henami transaction by the respondent. The most impor-
tant aspect, however, as was highlighted by the respondent
was that the said property was purchased in July, 1971 and
sold in August, 1972 because it was not in vacant posses-
sion.
In the instant case suit for eviction in question for
the need of the landlord was filed in January, 1972. There-
fore, the respondent could not be said in view of the said
premises having been purchased and sold by him prior to the
institution of the suit, to have occupied another residen-
tial building in the urban area. It was contended that by
sale the respondent has disentitled himself to the relief
asked for because he had in his choice the residential
building for his occupation but he sold it. We are unable to
accept this contention. There is no evidence either before
the Rent Controller or before the appellate authority that
this sale to Resham Devi was with an intention or with a
purpose to defeat the claim of the appellant or to take out
the respondent from the purview of the limitation imposed by
clause ( 1 ) (a) of sub-section (3) of section 13 of the
Act. If we read in such manner the Act in question, the Act
would expose itself to the vice of unconstitutionality. It
is well-settled that though the Rent Act. is a beneficial
legislation, it must be read reasonably and justly. If more
limitations are imposed upon the right to hold the property
then it would expose itself to the vice of unconstitutional-
ity. Such an approach in interpretation of beneficial stat-
utes is not warranted. It is true that one should iron out
the creases and should take a creative approach as to what
was intended by a particular provision but there is always,.
unless rebutted a presumption as to constitutionality and
the Act should be so read as to prevent it from being ex-
posed to the vice of un-constitutionality. State is also
presumed to act fairly. See in this connection the observa-
tions in State of Karnataka and Another v. M/s. Hans Corpo-
ration; [1980] 4 S.C.C. 697 at 704 & 706 and K.P. Varghesev.
Income Tax Officer, Ernakulam and Another, [1981] 4S.C.C.
173 at 179-180
526
Paragraphs 5 & 6). See also the observations of this Court
in Kasturi Lal Lakshmi Reddv v. State of Jammu and Kashmir &
Another, [1980] 3 SCR 1338 at 1357.
In fact the respondent did not have a house in his
possession. He purchase one before, but as it was not va-
cant, he sold away ,,before the institution of the suit.
There was no restriction by the Act on sale and alienation
of property. At the relevant time the respondent fulfilled
all the requirements to maintain an action for eviction.
Shri Raja Ram Agarwala, counsel for the respondent, submit-
ted before us that we should take a creative, reasonable and
rational approach in interpreting the statute. We should
not, he submitted, put such an interpretation as would
prevent sale or mortgage of the property by the owner and in
this case he was justified in saying that the landlord
respondent did not have vacant possession. As the facts of
this case warrant and in fact the respondent had sold away
the property 1 1/2 years before his suit for his need was
instituted, it cannot be said unless there was definite
evidence that it was done with the intention to defeat the
appellant's claim so as to be read that the landlord occu-
pied another residential house at the relevant time i.e. at
the time of institution of the suit.
The appellate authority accepted the respondent's need
and found him within the purview of the Act. The High Court
did not interfere in revision, nor shall we under Article
136 of the Constitution.
The appeal, therefore, fails and is accordingly dis-
missed. Interim orders are vacated. In the facts and circum-
stances of the case, however, the parties will pay and bear
their own costs.
M.L.A. Appeal
dismissed.
527
