D. K. Soni v. P.K. Mukerjee and Ors.

B SABY ASA CHI MUKHARJI, J. This is an appeal by the tenant against an order upholding the order of eviction. The ground of evic- tion was on the landlord's bona fide need and requirement. The appeal :)- arises out of the judgment and order of the High Court of Allahabad dated 18th of May, 1983 and also against the order dated 23rd of May, 1983 dismissing a review application by the said High Court. Shri P.K. c. Mukerjee, respondent No. 1 herein had filed an application under C section 3 of the U.P. Act No. 3 of 1947 (Temporary Control of Rent and Eviction Act), hereinafter referred to as the old Act, seeking _j.__ permission to file the suit for eviction of the tenant, the father of the appellant herein, on the ground that accommodation in dispute was· bona fide required by the landlord for his personal need. In Sep- D tember, 1971 the Rent Control and Eviction Officer rejected the appli­ cation of the landlord and held that his requirement was not bona fide. On 12th of November, 1971 the Commissioner allowed the revision filed by respondent No. 1 against the order of the Rent Control and Eviction Officer dated 5th of September, 1971. It may be mentioned that on 15th of July, 1972 the U.P. Urban Buildings (Regulation of E Letting, Rent and Eviction) Act, 1972 hereinafter referred to as the )-- new Act came into effect. On 2nd of August, 1972 the State Govern- ment rejected the representation of the tenant namely, the father of the appellant filed under section 7 of the old Act against the order of the Commissioner dated 2nd of November, 197 I. On or about 7th of .- February, 1975 the learned Single Judge of the High Court of F Allahabad allowed the writ petition of the tenant and set aside the orders of the Commissioner and the State Government hereinbefore mentioned. On 3rd of August, 1978 a Division Bench of the High . )...... Court of Allahabad allowed the appeal of respondent No. 1 and set aside the judgment of the learned Single Judge of the High Court dated 7th of February, 1975 and upheld the orders of the Commis- G sioner and the State Government allowing the eviction of the tenant. In September, 1978 respondent No. 1 moved an application under section 21 read with section 43(2)(rr) of the new Act. Thereafter it is alleged that respondent No. 1 had executed an agreement to sell the '. '' disputed premises in favour of the appellant's wife namely, Smt. -'"' Madhu Soni. It is material to refer to the said agreement in brief. The H agreement is dated as mentioned hereinbefore 7th of November, 1978 D.K. SONI v. P.K. MUKERJEE [MUKHARJJ, J.] 621 and was entered into between Shri P.K. Mukerjee, the landlord and A Smt. Madhu Soni wife of Shri D.K. Soni (son of Shri Harbans Lal Soni) the then tenant. It was stated that the landlord had filed an application against Shri H.L. Soni the father-in-law of vendee for permission to file a suit for eviction against him on account of his personal need for the aforesaid premises and permission had been granted. It also recited that a portion of the said land which was B demarcated in the site plan measuring about 121' x 101.5' of the vendor which would be for the construction of a house would be in exclusive possession of the vendor and the rest of the property at 8, Panna Lal Road, Allahabad being the disputed premises would be sold to Smt. Soni. It also recited that the vendee or his family members would have no right of whatsoever nature and the vendee, that is to say, the appellant had given up his tenancy right in respect of the C same, that is to say, the portion to be kept with the vendor and the premises will be built on the vacant land with the money that would be obtained by selling the property to Smt. Madhu Soni. The property was sold for Rs.1,00,000 out of which Rs.5,000 was paid as earnest money and it was stipulated that the rest of the money would be paid at D the time of the registration. It was further agreed that the parties would move the proper authorities as early as possible for permission to transfer and the sale deed 'VOuld be executed within one month of the grant of the permission and notice to the vendee. It was further stated that if the vendee failed to get the sale deed executed after one month from the date of permission and notice to the vendee by the E vendor, the earnest money of Rs.5,000 would be forfeited and the right of the vendor would be as it subsisted prior to the agreement. It was further provided that in the event of non-execution of the sale deed on account of any act or failure on the part of the vendee in pursuance of the agreement to sell, the property would stand released in favour of the vendor and the earnest money of Rs.5,000 would be F forfeited. It was clearly stipulated that the need of the vendor fof the premises still subsisted and this agreement was being entered into since it would be possible for the vendor to construct a house for himself on the land not agreed to be transferred measuring 121' x JO 1.5'. On that basis the parties had signed agreement on 7th November, 1978. On 12th of December, 1978 the father of the present appellant Shri H.L. Soni who was the original tenant died leaving behind his widow and two sons including the appellant and one daughter. It was alleged that on 18th of December, 1978 respondent No. 1 sent a letter of condolence to the appellant on the death of appellant's father. On H 622 SUPREME COURT REPORTS [1988) 1 S.C.R. A 22nd of December, 1978 appellant informed the Prescribed Authority before whom the application under section 21( 1)(a) of the new Act red with section 43(2)(rr) was pending about the death of Shri H.L Soni. On 23rd of March, 1979 respondent No. 1 moved an application for substitution in Case No. 53 of 1978 for bringing on record the heirs of deceased Shri H.L. Soni along with application under section 5 of the B Limitation Act. On 10th of November, 1979, the Prescribed Authority rejected the petitioners application for substitution and held that respondent No. 1 had full knowledge of the death of Shri H.L. Soni and he did not move the application within time. On I I th of December, 1979 respondent No. 1 moved a second application under section 21(1)(a) read with section 43(2)(rr) of the new Act on the same ground on which the first application was moved. The second applica- C tion was registered as Case No. 68 of 1979. It is alleged further that on 12th of March, 1981 respondent No. 1 executed two separate agree- - ments to sell the property in dispute in favour of R.P. Kanodia and P.K. Kanodia respectively. The Prescribed Authority on 7th of July, 1981 held that the second application under section 2l(l)(a) read with D section 43(2)(rr) of the new Act being Case No. 68 of 1979 was within time and directed the tenant to be evicted from the premises in dis­ pute. The Additional District Judge, Allahabad on 25th of October, 1982 dismissed the appeal of the tenant filed against the order of the Prescribed Authority dated 7th of July, 1981. On 11th of March, 1983 the appellant's wife Stnt. Madhu Soni filed a suit for injunction rest- E raining Respondent No. 1 from dispossessing her from the premises in dispute on the strength of registered agreement and she asserted that she resided in the accommodation as a result of part performa<1ce under section 53A of the Transfer of Property Act, 1882. Initially in junction was granted ex parte by the Trial Court and thereafter it was vacated after hearing respondent No. !. Aggrieved thereby an appeal F was filed by Smt. Madhu Soni in which the High Court had stayed dispossession. The High Court thereafter dismissed the writ petition of the tenant against the orders of the Prescribed Authority for eviction and the order of the Additional District Judge. A review petition was filed by the appellant and the same was dismissed. This appeal by special leave is against that decision of the High Court dated 18th of G May, 1983. Behind this long tale of dates the questions involved in this ap­ peal are short, namely, firstly in view of the provisions of section 43(2)(rr) was the High Court right, in the facts and circumstances of the case specially the death of original tenant being alleged, and in H view of the fact that the execution of the order passed for eviction had .·'?'- - 'r' I D.K. SONI v. P.K. MUKERJEE [MUKHARJI, J.] 623 become final before coming into operation of the new Act the order was proper and secondly, how far the subsequent events, namely, the agreement with the wife of one of the sons of the original tenant to purchase property as well as the agreement with the Kanodias mentioned hereinbefore demolish or destroy the case of a bona fide need of the landlord. In other words are these not sufficient subse­ quent events which destroy the landlord's bona fide need and as such should be taken note of by the appropriate courts in ordering eviction. In this appeal, therefore, we have to keep in mind two aspects of law namely, the finality of the decisions and secondly, how far and to what extent subsequent events should be taken note of in order to do justice between the parties. Before we refer to the judgment of the High Court and the C submissions made before us, it is necessary for us to bear in mind certain decisions of this Court on these aspects on which reliance was placed. This Court in Pasupu/eti Venkateswarlu v. The Motor & General Traders, [1975) 3 S.C.R. 958 dealing with the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960, dealt with D the question as to how far the subsequent events can be taken note of. This Court held that for making the right or remedy, claimed by a party justly and meaningfully as also legally and factually in accord­ ance 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 E sides are scrupulously obeyed. In'the facts of that case, this Court said that the High Court was right in taking into consideration the facts which came into being subsequent to the commencement of the pro­ ceedings. Therefore the fact that in determining what justice required the Court was boun.d to consider any change, either in fact or in law, which had supervened since the judgment was given. F This general principle and proposition of law was of ancient vin­ tage. See the observations of the U.S. Supreme Court in Pattersion v. State of Alabama, (294 U.S. 600 at page 607). The actual facts, how­ ever, of this case were entirely different, and so it was not necessary to refer to those facts. In Ramji Dayawala & Sons (P) Ltd. v. Invest G Import, [ 1981) 1 S.C.R. 899, this principle was again reiterated en­ tirely under different context. This Court also reiterated the same principle in Hasmat Rai and another v. Raghunath Prasad, [1981) 3 S.C.R. 605 where referring to Pasupuleti Venkateswarlu v. The Motor and General Traders (supra), this Court held that when an action was brought by the landlord under Rent Restriction Act for eviction on the H A ground of personal requirement, his need must not only be shown to -'-r exist at the date of the suit, but must exist on the date of appellate decree, or the date when a higher court dealt with the matter. It was emphasised by this Court that if during the progress and passage of proceeding from court to court subsequent events had occurred which if noticed would non-suit the plaintiff, the court had to examine and B evaluate the-same and mould the decree accordingly. The tenant was entitl~d to showh thabt the need or requihrement no 1 mdo~e exhisted b 1 y j.. pomtmg out sue su sequent events, tot e court me u mg t e appe - late court. Otherwise the landlord would derive an unfair advantage, and it would be against the spirit or intendment of Rent Restriction • Act which was enacted to fetter the unfettered right of re-entry. Iu C such a situation, it was reiterated that, it would be incorrect to say that \ as the decree or order for eviction was passed against the tenant he _ .>__ could not invite the court to take into consideration subsequent events. But the tenant could be precluded from so contending when decree or order for eviction had become final. (Emphasis supplied-see the observations of Desai, J. at page 617(G.H) of the report). In Syed D Asadu/lah Kazmi v. The Addi. District Judge, Allahabad and others, [ 1982] 1 S.C.R. 77, this Court was concerned with a residence at Allahabad. It was held by this Court that the order dated 25th March, 1977 of the appellate authority releasing a portion of the premises in favour of the third respondent therein and leaving the remaining por- tion in the tenancy of the appellant therein acquired finality when the )'- E proceedings taken against it by the appellant had failed. The Pres­ cribed Authority was bound to give effect to that final order and was ndt acting outside its jurisdiction or contrary to law where he ordered eviction. This Court reiterated that it was true that subsequent events had to be taken into account by a statutory authority or court when considering proceeding arising out of a landlord's petition for eject- F ment of a tenant on the ground of the landlord's personal need. But in , that case the order for release of a portion of the accommodation had )...... acquired finality before the death of the landlord and the controversy concluded by it could not be reopened thereafter. This Court further reiterated that inasmuch as the question which arose before the Prescribed Authority on the application of the appellant after the pro- G ceedings for release had acquired finality, it was not open even for this Court to reopen the proceeding for release. Not quite relevant to the present controversy, there is, however, just an observation in Sher Singh & Ors. v. The State of Punjab, [1983] 2 S.C.R. 582. It was a ,)..r decision dealing with Article 21 of the Constitution. There is an obser­ vation that traditionally, subsequent events had to be taken into H account in the area of civil law. It is necessary, however, to refer to a I .,l - D.K. SONI v. P.K. MUKERJEE (MUKHARJI, J.] 625 decision of the special bench of the Allahabad High Court in Bansilal A Sahu v. The Prescribed Authority and another, [1980] ALL. L.J. 331 which arose under the new Act. It was held therein that the question whether the eviction of the tenant had to be ord~red from any speci- fied part of the building under tenancy was not within the jurisdiction of the Prescribed Authority, while acting under clause (rr) of section 43(2), irrespective of the occurrence of subsequent events which might B make it improper to order the eviction from the entire building or which might tend to establish that the need set up by the landlord could be satisfied by ordering eviction of the tenant from a specified part of the building under tenancy. It was held that subsequent events or facts could not be considered so as to defeat the final order and the Prescribed Authority was bound to order eviction. The Special Bench C of the Allahabad High Court overruled another Bench decision of the Allahabad High Court in the case of Smt. Sarju Devi v. Prescribed Authority, Kanpur, [ 1977] All. L.J. 251 and accepted the proposition laid down in Tara Chand Khandelwal v. Prescribed Arithority, Agra, [1976] All L.J. 708. Satish Chandra, C.J. speaking for the Allahabad High Court observed that the opening clause of this provision entitled D the Prescribed Authority to find out whether permission under section 3 of the old Act had been obtained on any ground specified in sub­ section ( 1) or sub-section (2) of section 21 of the present Act and that the same had become final. It was, therefore, according to the Chief Justice, the beginning as well as the end of his jurisdiction to record findings. If the conclusion was in the affirmative the Prescribed E Authority had no discretion but to order the eviction of the tenant from the building under tenancy. It was further held that the jurisdic­ tion of the Prescribed Authority was to order the eviction of the tenant from the building under tenancy. It had not expressly been conferred any power to order eviction from a portion or part of the building under tenancy. It was further held that the jurisdiction of the F Prescribed Authority while deciding an application under section 21 of the present Act could not be equated with the jurisdicton which had been conferred for giving effect to the permission granted under sec­ tion 3 of the old Act. The two situations were different. Clause (rr) of section 43(2) of the present Act specifically prohibited the Prescribed Authority from satisfying itself afresh that the grounds existed. We are G of the opinion that this is the correct state of law and if that is the position the so-called subsequent events are not germane to the ques­ tion to be decided by the High Court. In the aforesaid light, in our opinion, in the facts of this case the High Court was right. H 626 SUPREME COURT REPORTS [ 1988] I S.C.R. A It may be mentioned that clause (rr) of section 43(2) of the new ~ Act provides as follows: "where any permission referred to in Section 3 of the old Act has been obtained on any ground specified in sub­ section ( 1) or sub-section (2) of section 21 and has become final, either before the commencement of this Act or in accordance with the provisions of this sub-section after the commencement of this Act {whether or not a suit for the eviction of the tenant has been instituted), the landlord may apply to the prescribed authority for his eviction under section 21, and thereupon the prescribed authority shall order the eviction of the tenant from the building under tenancy, and it shall not be necessary for prescribed authority to .satisfy itself afresh as to the existence of any ground as aforesaid, and such order shall be final and shall not be open to appeal under section 22: Provided that no application under this clause shall be maintainable on the basis of a permission granted under section 3 of the old Act, where such permission became final more than three years before the commencement of this Act: Prqvided further that in computing the period of three years, the time during which the applicant has been pro­ secuting with due diligence any civil proceeding whether in a court of first instance or appeal or revision shall be excluded" F All these aspects were considered by the High Court. We recog- nise that unless the statute expressly prohibits as it did in the instant case, by the aforesaid clause, cautious recognition of subsequent events to mould the relief should be taken note of. In the instant case in substance the need was there of the landlord for his occupation of his own premises. The landlord was a Government servant and wanted G to reside in Allahabad and for this purpose he sought eviction and had obtained an order of eviction prior to coming into operation of the new Act. The hope of the landlord to come back to his origin was not defeated by the provisions of the new Act. In vain he moved from court to court and in the meantime there has been escalation of prices and restrictions on alienation of land and in order to save himself from H this situation the landlord tried to sell part of the premises in question .,.._ . fa-• )-/ I D.K. SONI v. P.K. MUKERJEE (MUKHARJI, J.] 627 .,.~ subsequent to the decree to the wife of one of the sons of the tenant . A This is not material. The agreement in question further stipulated that the present need of the landlord subsisted, and out of this agreement . only Rs.5,000 was advanced in 1978 and nothing was paid thereafter. The agreement for sale to Smt. Madhu Soni reads as follows: "That it is made clear that the need of the vendor for the B { premises still subsists and this agreement is being entered into since it will be possible for the vendor to construct a house for himself on the land not agreed to be transferred measuring 121' X 101.5'. The parties, therefore, have signed this Deed on the 7th day of November, 1978 " ( ....... c ,.l __ In view of the subsequent events, namely, non-permission of the Urban Ceiling Authorities, failure to register and execute the docu- ment, delay for permission on the part of the vendee and the escalation of prices, that is to say, if in 1979 perhaps it was possible to build some kind of accommodation with the amount of sale price to be obtained D from the execution of the document which it is not possible in 1987 and further there is no readiness or willingness on the part of the vendee to execute the document, after the existence of the basic need of the landlord, for whicb originally the proceedings were taken and fina- -( lised, we do not find it possible to hold that subsequent events have so materially altered as to defeat the original order for possession passed E in favour of the respondents. We do not find perusing the records that there was any failure for substitution on the part of the landlord to take steps. The other son of the deceased was not residing with the deceased in the premises in J.. question, therefore, there was no need to substitute him. F The other agreements to which reference had been made was the alleged agreement with R.P. Kanodia and P.K. Kanodia respectively. Nothing was proved befqre us that agreement is valid today or given effect to in view of the provisions of the Land Ceiling Act. It may be mentioned that the Competent Autliority under the ~ Urban Land (Ceiling & Regulation) Act, 1976 by the order dated 20th of April, 1979 refused permission to sell in favour of Smt. Madhu Soni. On 7th November, 1978 the wife of the appellant and the landlord had entered into an agreement to Jiell a portion of the land as well as the house in dispute to the itppellant's wife, and for that )>urpose a sUJh of H Rs.5,000 had been paid as earnest money as mentioned hereinbefore, ~-.,. A and in the agreement, it was clearly stated that the parties would move the proper authorities as early as possible for permission to transfer the property and the sale deed would be executed within one month of the grant of such permission and notice to the vendee. Clause 6 of the agreement further stipulated that if the vendee failed to get the agree- B ment executed after one month from the date of permission and notice to the vendee the earnest money of Rs.5,000 would be forfeited and )- the right of the vendor will be as it subsisted prior to the agreement. The requisite permission in terms of the agreement was obtained by the landlord in the year 1979 and a registered notice consequently was also sent to the appellant's wife requiring her to get the sale deed executed in accordance with the agreement. Thereafter a reply dated \ C 21st September, 1979 was also received by the landlord. However, the _.>-,_ appellant's wife failed to get the sale deed executed and consequently the agreement itseH became infructuous and the earnest money stood forefeited. The need as it has been reiterated in the agreement of the land­ lord for his own purpose still subsisted. There was n<;> delay iri bringing th~ heirs of the deceased tenant on record. In the aforesaid:view of the matter there was no substance in the objection fjl~ aj!ainsithe execti­ tion of the order of eviction in terms of clause (rr) of section 43(2) of E the new Act. In any event such events were frivolous after the order had become final. The subsequent events which we have examined do not in any way effect the decision of need for possession of the pre­ mises in question of the respondent-landlord. It may be mentioned that there was an application by the respondent for the review. This was heard and no order was made on that application. It was reiterated F in the counter affidavit filed by the respondent that since 1st of December, 1978 till Iodate the appellant had not paid any money to the landlord nor deposited the da111ages in the court. At the time of his death late H.l'.. Soni was residing in the house in dispute with his eldest son Shri D.K. Soni, the appellant, his wife, Smt. Madhu Soni and Mrs. Kailash Soni, the widow. Other son Shri A.K. Soni and G daughter Mrs. Kangan Khanna were not residing with Late Shri H.L. Soni at the time of his death and as such they were not heirs as contem­ plated by section 3(g) of the new Act. The landlord was a Government servant and was posted at Lucknow and as such during his tenure he had to reside at Lucknow but after his retirement he wanted to settle down at his ancestral house at Allahabad and it was for this reason that 1-1 the proceedings for eviction were taken. 1 r D.K. SONI v. P.K. MUKERJEE [MUKHARJI, J.) 629 It was not proved to the satisfaction of the authorities below that A any agreement to sell the premises to Kanodias has been given effect to and had been acted upon or can be acted upon. It that view of the matter the need indubitably succeeds and even if the allegations made are taken into consideration do not merit any revision of the order which had become final. Finality of the judicial decisions is one of the B essential ingredients upon which the administration of justice must rest. In that view of the matter we are of the opinion, even if the contentions advanced on behalf of the respondents are taken into consideration and a new look is taken because of the subsequent events, which in our opinion cannot be done in view of the specific prohibition in clause (rr) of section 43(2) of the new Act, the appellant has no case. C In the aforesaid view of the matter we are of the opinion that the High Court was right in not interfering with the order of the Prescribed Authority. After all finality of the decisions of the authctrities under the Act has to be given due reverence and place in the judicial administration. Taking cautious note of the relevant subsequent D events, we find no merit in the appellant's contentions inasmuch as there is nothing on record to show that the landlord's bona fide need for his residence in Allahabad has been met or can be met in the state of affairs except by the order ~hi ch is ~pugned in this appeal. In the premises, the appeal must fail and is accordingly dismissed E without any order as to costs. Since, however, the appellant has been staying in the disputed premises for quite some time, we grant time till 30th of April, 1988 to deliver vacant possession of the premises subject to filing usual undertaking within four weeks from today. In default in filing undertaking the order would become executable forthwith. S.L. Appeal dismissed.