Chhedi Lal vs Kedar Nath

Prakash Krishna, J.—This is a tenant''s petition. It arises out of proceedings in respect of shop no. Sa20/162A, Paigambarpur, Varanasi of which the petitioner is a tenant and running a flour mill (Atta Chakki) therein, of which the respondent is the landlord.

Kedar Nath, respondent, landlord has got four sons namely Bhairav Nath, Kailash Nath, Sobh Nath and Bhagwan Das. All are married and they have got their children also. The release of the disputed shop was sought for under Section 21(1)(a) of U.P. Act No. 13 of 1972 on the ground that Bhagwan Das (one of the sons of the landlord) aged about 32 years is unemployed and unengaged in any business, profession or vocation. To establish him in Kirana business, the release of the shop in dispute was sought for. It was also pleaded that the tenant has got his residential accommodation adjoining to the shop in dispute, 1520 ft. away, wherein there is an open courtyard with sliding door, abutting the road which can easily be converted into a shop if so desired by the tenant. The said release application was contested on the pleas interalia that all the sons of the landlord are gainfully engaged in family business of foodgrain commission agency which is being carried on from a shop no. K 43/50AI situate at Bisheshwarganj. In other words, Bhagwan Das whose need was set up in the release application is engaged in the family business along with the landlord and his other sons. As regards the availability of alternative shop to the petitioner tenant at his residence is concerned, it was submitted that there is no power connection of 10 H.P. which is required to run an Atta Chakki therein and the said accommodation is residential one. It was also pleaded that the landlord has got two shops out of which one is in the tenancy of Punwasi who is carrying on tea business therein and another is in the tenancy of one Lalji. These shops can be easily occupied by the landlord by seeking the eviction of the tenants therefrom.

The parties led evidence in support of their respective cases.

The Prescribed Authority as well as the appellate court found concurrently that the landlord has got no other shop wherein his son Bhagwan Das can be accommodated. The business at Bisheshwarganj shop is being carried on by one of his sons Bhairav Nath. The documents such as assessment orders passed under Sales Tax Act and under the Income Tax Act and copy of the licence obtained from the Food Department were produced to support the plea that the business under the name and style of ''Bhairav Nath Kailash Nath'', which is being carried on from the shop situate at K 43/50AI is being exclusively run by Bhairav Nath. The courts below also found that the petitioner tenant''s house is just adjoining the shop in question and there is an open courtyard facing the main road having a sliding door which can be easily converted into a shop by affixing a shutter. The need set up to establish Bhagwan Das in an independent business was found to be bonafide and genuine. On the question of comparative hardship, it was found that it is the landlord who will suffer greater hardship in case the release application is rejected than the tenant. The tenant can easily shift his business to the adjoining residential accommodation having facility to open Auta Chakki business therein.

During the pendency of the writ petition, two supplementary affidavits have been filed by the petitioner stating that the shop which was in the tenancy of Punwasi has been vacated in execution of decree dated 4102007 passed in suit no. 363 of 2000 and possession has been delivered to the landlord on 172008. In reply thereto it has been stated by the landlord respondent that the said shop is a small shop measuring 8''x12'' and has been given to Pankaj Kumar son of Kailash Nath (grand son) aged about 23 years who is carrying on Kirana business therefrom. It has also been stated that Kailash Nath (father of Pankaj Kumar) has no shop and he is carrying on Kirana business in a rented shop no. K43/5354A1, Shahganj Bara Bisheshwarganj, Varanasi.

Further submission is that the said subsequent events cannot be taken into consideration by the Court, in as much as the need of the landlord to establish his son Bhagwan Das in a business still subsists.

No serious attempt was made by the learned counsel for the petitioner to challenge the said findings of the courts below that the business in the name and style of ''Bhairav Nath Kailash Nath'' which is being carried out from Bisheshwarganj shop, is the exclusive business of Bhairav Nath (one of the sons of landlord). Voluminous evidence, such as, assessment orders passed under Sales Tax Act, Income Tax Act, licence issued by Nagar Nigam etc. filed by the landlord do show that it is Bhairav Nath who is carrying on the business exclusively which was alleged to be family business of the tenant. Therefore, the plea that Bhagwan Das is gainfully engaged in the said business, stands rejected. It is not the case of the petitioner tenant that Bhagwan Das is carrying on any other business. In other words, it is fully established that Bhagwan Das is still unemployed and unengaged and is not carrying on any business. Need to establish Bhagwan Das in a separate business is, therefore, bonafide and genuine and it cannot be said to be a ''mere desire'' of the landlord to occupy the disputed shop.

At this stage, the question of vacation of another shop by another tenant Punwasi assumes importance. The contention of the learned counsel for the petitioner is that the said shop is available wherein Bhagwan Das can be accommodated. The case of the landlord respondent, on the other hand, is that the said shop has been given to Pankaj Kumar son of Kailash Nath who is carrying on Kirana business therefrom. It is also not in dispute and remains uncontroerted that Kailash Nath is carrying on his business from a rented shop, referred to above.

At this stage, the argument of the petitioner''s counsel is that the shop of Punwasi should have been given to Bhagwan Das instead of Pankaj. In reply, the landlord''s case is that the disputed shop was released for the need of Bhagwan Das and he has also to settle his other son''s family (Kailash Nath), therefore, the shop of Punwasi was given to Pankaj son of Kailash Nath, wherein Pankaj is doing business.

One of the points which survives in the present petition is as to whether the subsequent events can be taken into consideration to reject the release application. In support of the said plea, the learned counsel for the petitioner has relied upon Ram Kumari Barnwal Vs. Ram Lakhan 2007(68) A.L.R. 136 = 207 (54) AIC 52, wherein the Apex Court has held that the Court can take notice of the subsequent events happened during the pendency of the proceedings. In this case, the original tenant expired during the pendency of the proceedings before the Apex Court and legal heirs were substituted. It has been held that bonafide need should not only exist on the date of the application but should also exist on the date of passing of the order.

In Prabha Arora and another Vs. Brij Mohini Anand and others, AIR 2008 SC 643 : 2007 (69) ALR 895 (SC) = 2007 (60) AIC 32, the same view has been reiterated. In this case release of the premises in dispute was sought for on the ground that the landlady is a retired teacher getting only a meagre amount of pension which is insufficient for her needs. To augment her income, she wants to run tuition/coaching classes in the premises in question. During the pendency of the proceedings, a trust was created in respect of the property in dispute. The Apex Court took the view that the landlady ceases to be the owner of the property. On account of creation of the trust, the property has passed to the trustees, the Court has to consider the changed circumstances during the pendency of the litigation.

In this very case the Apex Court has relied upon its judgment in Kedar Nath Agrawal (dead) and another vs. Dhanraji Devi (dead) by Lrs. and another 2004 (57) ALR 419 (SC) = 2004 (23) AIC 32 (SC) = AIR SCW 5789. In this case also the landlord has died and subsequently his widow also died leaving behind three married daughters residing at their marital home with inlaws. On these facts, the Apex Court remanded the matter to the High Court to decide the case afresh in the light of its earlier judgment in the case of Hasmat Rai Vs. Raghunath Prasad AIR 1981 SC 1711 and the provisions of sub section (7) of Section 21 of the Act. This is one line of the cases by the Apex Court, holding that the Court is not precluded from taking cognizance of subsequent changes of facts and law to mould the relief.

The other line of cases are that where a tenant incurred liability of being evicted from the premises on the date of an application, on a future date, the death of landlord during the pendency of writ proceedings, does not result in lapsing of bonafide need of widow and children, vide Kamleshwar Prasad Vs. Pradumanju Agarwal (dead) by Lrs., 1997 (30) ALR 307 (SC) = J.T. 1997(4) SC 425. Relevant portion from said report is reproduced below:

".......Having given an anxious consideration to the contention raised by the learned counsel for the appellant and under the facts and circumstances of this case we are of the considered opinion that this case does not warrant interference by this Court under Article 136 of the Constitution. Under the Act the order of the appellate authority is final and the said order is a decree of the civil court and decree of a competent court having become final cannot be interfered with by the High Court in exercise of its power of superintendence under Article 226 and 227 of the Constitution by taking into account any subsequent events which might have happened. That apart, the fact that the landlord needed the premises in question for starting a business which fact has been found by the appellate authority, in eye of law, it must be that on the day of application for eviction which is the crucial date, the tenant incurred the liability of being evicted from the premises. Even if the landlord died during the pendency of the writ petition in the High Court the bona fide need cannot be said to have lapsed as the business in question can be carried on by his widow or any elder son. In this view of the matter, we find no force in the contention of Mr. Manoj Swarup, learned cousnel appearing for the appellant and we do not find any error in the impugned judgment of the High Court warranting interference by this Court under Article 136 of the Constitution. The appeal, accordingly, fails and is dismissed but in the circumstances without any order as to costs."

The basis of the said judgment is that under the Act, the order of the appellate authority is final. The aforesaid judgment has been followed by the Apex Court in a case under Madhya Pradesh Accommodation Control Act, 1961, Shakuntala Bai & others Vs. Narayan Das & others, 2004 (55) ALR 741 (SC) = 2004 (18) ACC 9 (SC) = JT 2004 (Suppl. 1) SC 538. In this very case, the Apex Court has also considered its earlier judgments in the cases of Gaya Prasad Vs. Pradeed Srivastava, 2001 (42) ALR 685 (SC) = JT 2001(2) SC 426 and G.C. Kapoor Vs. Nand Kumar Bhasin, 2001 (45) ALR 808 (SC) = JT 2001(9) SC 558. It has concluded as follows:

".....Therefore, the legal position is well settled that the bona fide need of the landlord has to be examined as on the date of institution of proceedings and if a decree for eviction is passed, the death of the landlord during the pendency of the appeal preferred by the tenant will make no difference as his heirs are fully entitled to defend the estate."

In the same judgment, it has been observed:

"...............If the subsequent event, like the death of the landlord is to be taken note of at every stage till the decree attains finality, there will be no end to litigation. By the time a second appeal gets decided by the High Court, generally a long period elapses and on such a principle if during this period the landlord who instituted the proceedings dies, the suit will have to be dismissed without going into merits. The same thing may happen in a fresh suit filed by the heirs and it may become an unending process. Taking into consideration the subsequent events may, at times, lead to rendering the whole proceedings taken infructuous and colossal waste of public time....."

On a meaningful reading of the decisions, referred to above, the point of principle deducible is that normal rule is that where subsequent events or facts or law which have bearing on the entitlement of the party to release or all aspects which have bearing on moulding of relief occur, the Court is not precluded from taking a ''cautions cognizance'' of the subsequent changes of fact and law to mould the relief.

The Apex Court in Pratap Rai Tanwani and another Vs. Uttam Chand and another, 2004 (57) ALR 444 (SC) = 2004 (23) AIC 402 (SC) = 2004 AIR SCW 6858 considered the matter in depth and has found that subsequent events should have wholly satisfied the requirement of the parties who petitioned for eviction on the ground of personal requirement. Relevant para9 is reproduced below:

"9. The next three Judge Bench of this Court which approved and followed the above decision, in Hasmat Rai V. Raghunath Prasad 1981 (3) SCC 103 = (1981(3) SCC 103) has taken care to emphasise that the subsequent events should have "wholly satisfied" the requirement of the party who petitioned for eviction on the ground of personal requirement. The relevant passage is extracted below (SCC pp 11314, para 14):

"Therefore, it is now incontrovertible that where possession is sought for personal requirement it would be correct to say that the requirement pleaded by the landlord must not only exist on the date of the action but must subsist till the final decree or an order for eviction is made. If in the meantime events have cropped up which would show that the landlord''s requirement is wholly satisfied then in that case his action must fail and in such a situation it is incorrect to say that as decree or order for eviction is passed against the tenant he cannot invite the court to take into consideration subsequent events."

It is interesting to notice the fact of the said case in brief. Release of the disputed shop was sought for to establish the son of the landlord therein. In the meantime, the son of the landlord went abroad temporarily for employment. A plea was put forward by the tenant that the need of the landlord totally eclipsed by subsequent events. In this case, it was held that it is a case where the need of the landlord is wholly satisfied. Relevant paras 7 and 10 from the said report are reproduced below:

"7. It is stark reality that longer is the life of the litigation the more would be the number of developments sprouting up during the long interegnum. If a young entrepreneur decides to launch a new enterprise and on that ground he or his father seeks eviction of a tenant from the building, the proposed enterprise would not get faded out by subsequent developments during the traditional lengthy longevity of the litigation. His need may get dusted, patina might stick on its surface, nonetheless the need would remain intact. All that is needed is to erase the patina and see the gloss.

It is pernicious and we may say, unjust to shut the door before an applicant just on the eve of his reaching the finale after passing through all the previous levels of the litigation merely on the ground that certain developments occurred pendente lite, because the opposite party succeeded in prolonging the matter for such unduly long period.

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The judicial tradiness, for which unfortunately our system has acquired notoriety causes the lis to creep through the time for long long years from the start to the ultimate termini, is a malady afflicting the system. During this long interval many many events are bound to take place which might happen in relation to the parties as well as the subjectmatter of action is to be submerged in such subsequent events on account of the malady of the system it shatter the confidence of the litigant, despite the impairment already caused."

Applying the aforesaid ratio to the facts of the present case, it cannot be said that the need of the landlord has been ''wholly satisfied'' by getting possession of shop of Panwasi. Indisputably, the landlord has got four sons. All the sons have got their own family. One of the sons of the landlord Bhairav Nath is carrying on the business at Bisheshwarganj shop. The other son Kailash Nath is carrying on the business in a rented shop. The shop which has been vacated by Panwasi has been given to Pankaj son of Kailash Nath. It is not disputed by the petitioner that the said shop has not been given to Pankaj Kumar. The case is that instead of giving the said shop to Pankaj Kumar it should have been given to Bhagwan Das. The landlord has to establish his son in the manner he likes. If the shop has been given to his grand son whose father is carrying on business in a rented shop, there is nothing objectionable. So far as the disputed shop is concerned, consistent case of the landlord is that it is required to establish Bhagwan Das. Bhagwan Das is still unemployed and unengaged and it cannot be said that by subsequent events, the need of the landlord is ''wholly satisfied''.

It is an acknowledged legal position that a tenant cannot dictate as to how else a landlord should manage his affairs. In this view of the matter even if subsequent events are taken into consideration, as pleaded by the petitioner, the same have no material bearing so far as the need of Bhagwan Das is concerned.

A commission was issued by the Prescribed Authority to submit a report with regard to house no. Sa20/162 A2, which belongs to the petitioner tenant. He has found that the said accommodation is being used for residential purpose and is situate at Paigambarpur Road. There is open verandah infront of the said house. Dimensions thereof are 18''x9''. There are two pillars and a provision for affixation of shutter is also there. There is an open piece of land infront of the house in the form of Patri and towards South of it is public road. The Commissioner has further stated that the said open court yard can easily be converted into shop as there are pillars and provision for affixation of shutter although at the time of commission no shutter was found. The two courts below have found that the petitioner can easily convert the said accommodation, if he so desires into a shop and can shift his Atta Chakki business therein after affixation of shutter. Besides the above, the petitioner has not taken any steps to secure a suitable alternative accommodation during this period, as held by the Apex Court in Mst. Bega Begum and others Vs. Abdul Ahmad Khan, AIR 1979 SC 272 = 1986 SCFBRC 346, an adverse inference shall be drawn against the petitioner on the question of comparative hardship.

In view of the above discussions, I find that the findings recorded by the two courts below that the need of the landlord is bonafide and genuine and that he will suffer greater hardship in case the release application is rejected is well founded and require no interference under Article 226 of the Constitution of India. The views taken by the two courts below are perfectly justified on the facts of the present case.

In the result, I find no merit in the writ petition. It is dismissed, but no order as to costs.

Time to vacate the disputed premises is granted upto 3182009 provided the petitioner files an undertaking on affidavit before the Prescribed Authority that he will vacate the shop in dispute and will hand over its peaceful vacant possession to the landlord on or before 3182009. The petitioner shall pay/deposit the arrears of rent upto 3182009 before the Prescribed Authority in advance within a period of one month. If the petitioner fails to vacate the accommodation in dispute within the aforesaid period, he shall be liable to pay damages at the rate of Rs. 5,000/ per month w.e.f. September, 2009 to the date of actual delivery of possession.