Mahesh Prasad vs Nathulal and Others

Vijay Kumar Shrivastava, J.—This second appeal is directed against the judgment and decree dated 2-4-1990 passed by 1st Additional District Judge, Raigarh in Civil Appeal No. 43-A/89, by which the appeal filed by the defendant against the judgment and decree dated 6-10-1987 passed by IIIrd Civil Judge, Class II, Raigarh, in Civil Suit No. 33- A/87 decreeing the suit for eviction, has been dismissed.

Sagar Mal Agrawal filed a suit for eviction against defendant Mahesh Prasad on the ground that the suit accommodation occupied by the defendant Mahesh Prasad in the capacity of tenant is required by him for residential purpose of his own and his family members and is required bonafide. He has not other suitable house in his occupation at Raigarh. Mahesh Prasad contested the claim and averred that the house in occupation of Sagar Mal Agrawal is double storey consisting 18-20 rooms and is sufficient for residence of Sagar Mal Agrawal and his family members.

Learned Trial Court, after due evaluation of the evidence held that the suit accommodation is required bonafide by the plaintiff and his family members for their residence and no other suitable accommodation is available with plaintiffs in Raigarh city and accordingly decreed the suit for eviction. Being aggrieved by the said judgment and decree dated 6-10-1987, defendant preferred an appeal bearing No. 43-A/89. During pendency of the appeal Sagar Mal Agrawal died and his legal representatives were brought on record. During pendency of the appeal defendant filed an application under Order VI, Rule 17 of the CPC (for short, "the Code") averring that the plaintiffs have made some construction and now they have total 11 rooms in his house. The suit has been brought for the residence of Sagar Mal Agrawal who is now dead. Plaintiffs opposed the application on the ground that the defendant in his defence has already taken the ground that the house in possession of Sagar Mal Agrawal has 18-20 rooms. Plaintiffs further pleaded that the suit has been filed not only for the requirement of Sagar Mal Agrawal, but also for the residence of his family members. Defendant also filed an application under Order 41 Rule 27 of the Code for taking document on record by which he sought to tender the copy of decree passed in Civil Suit No. 33-A/87 on 1-1-1990 vide which eviction decree of other house in possession of Jagdish was passed in favour of the plaintiffs.

Learned First Appellate Court heard both the applications along with the appeal on merit and vide impugned judgment and decree disallowed the same and also dismissed the appeal.

This second appeal has been admitted on the following substantial question of law :--

Whether in view of the law laid down by the Supreme Court that subsequent events could be taken into account while considering the claim of a plaintiffs-landlord for eviction of the defendant-tenant from the suit accommodation on the ground of bonafide requirement, the First Appellate Court erred in law in not allowing the applications made by the defendant- appellant under Order 41 Rule 27 and Order 6 Rule 17, CPC ?

Both the parties are heard and record of Court below perused.

On 10-11-1986 Sagar Mal Agrawal filed a Civil Suit for recovery of the suit house. The same was contested by the defendant Mahesh Prasad and on 6-10-1987 IIIrd Civil Judge, Class II, Raigarh passed a decree of eviction in favour of Sagar Mal Agrawal. Defendant-Mahesh Prasad preferred an appeal, ie., Civil Appeal No. 43-A/89. During pendency of the appeal plaintiff Sagar Mal Agrawal died and the names of his legal representatives were brought on record. First Additional District Judge, Raigarh, decided the appeal and interim applications as well on 2-4-1990 and upheld the judgment and decree passed by the Trial Court. Defendant Mahesh Prasad preferred second appeal on 19-6-1990 and obtained stay against execution of the decree and since then the appeal is pending.

Learned Counsel for the appellant contended that the First Appellate Court ought to have considered the subsequent events by allowing both the applications, who illegally disallowed the same, therefore, the judgment and decree passed by the First Appellate Court is perverse. He has placed reliance on the judgments rendered by Hon''ble Apex Court in Pasupuleti Venkateswarlu Vs. The Motor and General Traders, , which reads as below:--

It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the hand-maid and not the mistress of the judicial process. If a fact, arising after the lis has come to Court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the Tribunal, it can not blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fairplay is violated, with a view to promote substantial justice - subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the Trial Court. If the litigation pends, the power exists absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are myriad. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the Court can, and in many cases must, take cautious cognizance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both the sides are scrupulously obeyed. On both occasions the High Court in revision, correctly took this view. The later recovery of another accommodation by the landlord, during the pendency of the case, has as the High Court twice pointed out, a material bearing on the right to evict, in view of the inhibition written into Section 10 (3) (iii) itself. We are not disposed to disturb this approach in law of finding of fact.

Learned Counsel for the appellant further relied on the judgment rendered by Hon''ble Apex Court in Hasmat Rai and Anr. v. Raghunalh Prasad, reported in AIR 1991 SC 171 which reads as below :-

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 a order for eviction is made. If in the meantime, events have cropped up which would show that the landlords'' 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 can not invite the Court to take into consideration subsequent events. Once an appeal against decree or order of eviction is preferred, the appeal being a continuation of suit, the landlord''s need must be shown to continue to exist at appellate stage. If the tenant is in a position to show that the need of requirement no more exists because of subsequent events, it would be open to him to point out such events and the Court including the Appellate Court has to examine, evaluate and adjudicate the same Second Appeal No. 113 of 1969, decided on 17-4-1976 (Madh. Pra.) Reserved; 1971 MPLJ 888 held overruled in view of Pasupuleti Venkateswarlu Vs. The Motor and General Traders, .

On the other hand, Counsel for the respondents opposes the contentions raised by the appellant and contended that the learned First Appellate Court, taking into consideration all the facts, has decided both the applications not only refused to accept the applications, but also in judgment considered the grounds raised by the appellant in the amendment application. He further contended that the finding of the First Appellate Court is not perverse.

The law laid down by the Hon''ble Apex Court is that the Court must take cautious cognizance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both the sides are scrupulously obeyed.

In the instant lis, defendant took a defence in his written statement that the house in possession of Sagar Mal Agrawal has 18-20 rooms, therefore, the house is sufficient to fulfil the requirement of residence of Sagar Mal Agrawal and his family members. During pendency of the appeal he filed an application under Order VI Rule 17 of the Code of the Civil Procedure averring that the landlord has made some construction and now he has total 11 rooms and the construction has been done in the year 1989. Plaintiffs disputed the said averment. Defendant further averred in his application that Sagar Mal Agarwal has died during pendency of the appeal, therefore, bonafide requirement ceases to which plaintiffs have opposed and stated that the suit has been brought for the bonafide residence of family members of Sagar Mal Agrawal also.

It is not an admitted position that subsequent to filing of the suit construction has been made by the plaintiffs and in application also defendant did not disclose when, how and how many rooms have been newly constructed by the plaintiffs. The defendant in written statement averred that the house in possession of plaintiffs consists 18-20 rooms as such sufficient for their residence and their family members, but failed to prove it. Trial Court held that only four rooms are in possession of plaintiffs, therefore, plaintiffs require the suit house bonafide for residential purpose. Learned Appellate Court in Para 16 of the judgment considered the requirement, assuming it to be true that now there are 11 rooms, and considering the total number of family members as also the fact that some of them are married and grown up, held that even 11 rooms are not sufficient to fulfill the residential requirement of plaintiffs and their family members. Learned Court also held that only to keep the case pending, the application for amendment has been filed. Taking into consideration all these facts, I am of the view that the fact stated in the amendment application has neither the fundamental impact on the right to relief nor can be accepted following the rules of fairness to both the sides.

Plaintiffs have filed the suit for bonafide requirement of themselves and their family members. Therefore, the bonafide requirement does not come to an end upon death of plaintiff Sagar Mal Agrawal. Learned First Appellate Court vide impugned judgment has considered the contention of 11 rooms and held that the said change does not have any substantial impact on the merit of the case and if it is to be accepted that 11 rooms are there in that case also it can not be said that the plaintiffs'' requirement has been fulfilled and he has no need of the suit house and accordingly the amendment application has been dismissed by the First Appellate Court.

Another application filed, is filed under Order 41, Rule 27 of the Code vide which the defendant endeavoured to bring subsequent events, Le., a decree of eviction passed in favour of the plaintiffs which relates to other house.

Section 12 (1)(e) of the Chhattisgarh Accommodation Control Act, 1961 reads as below :--

Restriction on eviction of tenants.-- (1) Notwithstanding anything to be contrary contained in any other law or contract, no suit shall be filed in any Civil Court against a tenant for his eviction from any accommodation except on one or more of the following grounds only, namely :--

(e) that the accommodation let for residential purposes is required bonafide by the landlord for occupation as a residence for himself or for any member of his family, if he is the owner thereof, or for any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned.

In suit, filed on the ground of bonafide requirement for residential purpose, it is to be established that other suitable residential accommodation in the occupation of plaintiffs in the city is available, therefore, the subsequent change, i.e., obtaining a decree of eviction with respect to another house is not a subsequent event which disables the landlord from seeking eviction. Therefore, the learned First Appellate Court disallowing the application under Order 41 Rule 27 of the CPC has committed no illegality.

From the aforesaid discussion, I am of the opinion that though subsequent events could be taken into account while considering the claim of the plaintiffs/landlord for eviction of the defendant/tenant from the suit accommodation, but subsequent event is required to be considered observing rules of fairness to both the sides as laid down by Hon''ble the Apex Court. Here in the instant case, there was no material to accept that in fact subsequent events having fundamental impact on the right to relief have taken place. Apart from that by subsequent events, defendant who earlier in written statement stated that the house in occupation of the plaintiffs has 18-20 rooms had reduced the same from 18-20 by 11. Apart from that learned First Appellate Court treating the rooms to be 11 also held that the suit house is required bonafide by the plaintiffs. Only decree of eviction does not mean that the house for which decree has been passed has come in the occupation of the plaintiffs. Therefore, passing of a decree for any house is not a subsequent event disabling the landlord from seeking eviction. Therefore, I am of the opinion that the First Appellate Court did not commit any error in law in not allowing the application made by the defendant/appellant under Order 41 Rule 27 and Order 6 Rule 17 of the CPC and I answer the substantial question of law, accordingly.

In the result, the appeal fails and is dismissed.

Parties to bear their own costs.