Hukumchandra(D) Thru Lrs. vs Nemi Chand Jain

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.3827 OF 2014

HUKUM CHANDRA (D) THR. LRS. …..Appellants

VERSUS

NEMI CHAND JAIN & ORS. …..Respondents

JUGEMENT

R. BANUMATHI, J.

This appeal arises out of the judgment dated 25.04.2012

passed by the High Court of Madhya Pradesh in Second Appeal

No.279 of 2007 affirming the judgment and decree passed by the

first appellate court for eviction of appellant from the suit premises.

2. The appellant is a tenant in the shop measuring 6.3 feet x 15

feet on the ground floor of a building located at Sarrafa Bazar,

Signature Not Verified Muraina, Madhya Pradesh. The respondent No.1 filed a civil suit Digitally signed by MADHU BALA Date: 2018.12.14 16:47:26 IST Reason: under Section 12(1)(f) of the Madhya Pradesh Accommodation

Control Act, 1961 (the Act) seeking eviction of the appellant from the

1 suit shop on the ground of bona fide requirement to settle his son

Rajendra Kumar Jain. By judgment dated 30.06.2004, the trial court

dismissed the suit holding that Rajendra Kumar was already doing

an independent business of utensils and he was not unemployed

and also found that respondent-landlord has not established the

genuine bona fide requirement. The trial court dismissed the suit by

finding that there is no ground for decree of eviction against the

appellant herein under Section 12(1)(f) of the Act. So far as the

arrear of rent is concerned, the trial court found that no ground for

eviction was made out under Section 12 (1)(a) of the Act.

3. The respondent - landlord appealed against the judgment of

the trial court. The first appellate court set aside the judgment of the

trial court by holding that the documents produced by the appellant

that they pertain to the year 1996, 2000 and 2001 and those

documents do not show that Rajendra Kumar was engaged in the

business on the date of filing of the suit i.e. on 22.01.1992. The first

appellate court held that the bona fide requirement of the suit shop

is to be examined on the date of filing of the suit i.e. 22.01.1992.

After referring to the judgment of the Madhya Pradesh High Court in

Bishanswaroop v. Rajkumar Kuchata & Ors. 2015 (1) M.P.A.C.J.-

151, the first appellate court held that it would be inappropriate to

2 expect that the land owner should sit idle and not to perform any

work till the suit for eviction is decided on the basis of bona fide

requirement. Observing that the landlord has established the bona

fide requirement for establishing business for his son Rajendra

Kumar, the first appellate court set aside the judgment of the trial

court and allowed the first appeal.

4. The second appeal preferred by the appellant was dismissed

upholding the judgment passed by the first appellate court that once

landlord establishes the bona fide requirement by evidence on the

standard of preponderance of probabilities under Section 12 (1)(f) of

the Act, technicalities raised by the defendant – tenant should be

ignored. Insofar as the application filed under Order 41 Rule 27

CPC to bring on record the additional documents to show that the

respondent - landlord on 14.11.2006 obtained vacant possession of

the adjacent shop from tenant Babulal is concerned, the High Court

held that the same is of no avail to the appellant – defendant. Being

aggrieved, the appellant - defendant has preferred this appeal.

5. The learned senior counsel for the appellant submitted that

the conditions required for exercise of jurisdiction under Section 12

(1)(f) of the Act was not proved in as much as, the son of the

respondent - landlord was already in the business of utensils from

3 the shop in the same building and this aspect was not properly

considered by the High Court. It was submitted that the High Court

has not appreciated the additional evidence adduced by the

appellant that the other tenant Babulal has vacated the shop

occupied by him. Placing reliance upon Deena Nath v. Pooran Lal

(2001) 5 SCC 705, it was contended that the requirement of the

landlord which has not been established in the case must continue

to exist till the final decision of the court.

6. Per contra, the learned senior counsel appearing for the

respondent - landlord placed reliance upon Gaya Prasad v.

Pradeep Srivastava (2001) 2 SCC 604 and submitted that the

crucial date for deciding the bona fide requirement of the landlord, is

the date on which the suit was filed for eviction and that the

subsequent event cannot eclipse the said bona fide requirement

unless the subsequent event overshadows the requirement of the

landlord. The learned senior counsel further submitted that after

detailed analysis of the evidence adduced by the parties, the first

appellate court rightly held that the requirement of the suit shop for

the utensils business of landlord’s son Rajendra Kumar is genuine

and bona fide which was rightly affirmed by the High Court. It was

urged that when there are concurrent findings of fact arrived at by

4 the courts below that there is bona fide requirement and that the

respondent has no suitable accommodation other than the suit

shop, the same cannot be interfered by this Court.

7. We have considered the submissions of the parties and

perused the impugned judgment and materials on record.

8. The respondent - landlord sought eviction under Section 12

(1)(f) of the Act, on the ground of bona fide requirement for use of

his son Rajendra Kumar Jain. Section 12(1)(f) of the Act under

which the eviction of the tenant was sought reads as follows:-

“12. Restriction on eviction of tenants.—(1) Notwithstanding anything to the 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:

(a)-(e) * * *

(f) that the accommodation let for non-residential purposes is required bona fide by the landlord for the purpose of continuing or starting his business or that of any of his major sons or unmarried daughters 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 non-residential accommodation of his own in his occupation in the city or town concerned;”

9. Considering the scope of Section 12(1)(f) of the Act, this Court

in Deena Nath’s case held as under:-

5

“15…. The section, on a plain reading, is clear and specific. The criteria to be fulfilled for an order of eviction under the provision are:

(i) that the non-residential accommodation is required bona fide by the landlord for the purpose of continuing or starting his business or that of any of his major sons; and

(ii) that the landlord or such person has no other reasonably suitable non-

residential accommodation of his own in his occupation in the city or town concerned.”

The legislature in enacting the provision has taken ample care to avoid any arbitrary or whimsical action of a landlord to evict his tenant. The statutory mandate is that there must be first a requirement by the landlord which means that it is not a mere whim or a fanciful desire by him; further, such requirement must be bona fide which is intended to avoid a mere whim or desire. The “bona fide requirement” must be in praesenti and must be manifested in actual need which would evidence the court that it is not a mere fanciful or whimsical desire. The legislative intent is made further clear by making the provision that the landlord has no other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned. This requirement lays stress that the need is pressing and there is no reasonably suitable alternative for the landlord but to get the tenant evicted from the accommodation. Similar statutory provision is made in clause (e) of Section 12(1) of the Act in respect of accommodation let for residential purposes. Thus, the legislative mandate being clear and unambiguous, the court is duty-bound to examine not merely the requirement of the landlord as pleaded in the eviction petition but also whether any other reasonably suitable non-residential accommodation in his occupation in the city/town is available….”

10. Based on the documents Exs.D-13 to D-15 and Ex.D-25, the

trial court held that the documents show that Rajendra Kumar was

doing the business under the name “Rajendra Bartan Bhandar” and

that Rajendra Kumar cannot be said to be unemployed. After

6 referring to the ration card of Rajendra Kumar, the trial court held

that in the ration card which was issued by the Chief Municipal

Corporation Officer to Rajendra Jain S/o. Nemichand Jain, Ward

No.21/121, Lohiya Bazar, Muraina, it is mentioned that Rajendra

Kumar is in the business for utensils. Likewise, in the insurance -

Ex.D-27 in the name of Rajendra Kumar, it is stated that he is

presently having a business of “Bartan Ki Dukaan” and his annual

income is Rs.30,000/- per year. The trial court also referred to Ex.D-

13 - the summary case presented before the Chief Judicial

Magistrate for violation of provisions of the Weight and

Measurement Act, 1976 in which Rajendra Kumar was imposed with

a penalty of Rs.1,000/-. Upon consideration of various documents,

the trial court held that Rajendra Kumar is already carrying a

business of utensils and cannot be said to be unemployed and,

therefore, held that the respondent - landlord has not established

bona fide and genuine requirement of the suit premises for business

of Rajendra Kumar.

11. Contention of the appellant is that when the trial court

recorded the findings of defendant that Rajendra Kumar was

already in the business of utensils, this aspect was not properly

appreciated by the first appellate court and the High Court. The

7 learned Senior Counsel submitted that there is a distinction between

a mere desire and need of the landlord and mere desire cannot be

equated with the genuine requirement. It was submitted that, since

Rajendra Kumar was already in business, there was no bona fide

and genuine requirement of the suit premises and the High Court

ought not to have affirmed the order of eviction. In support of his

contention, the learned senior counsel placed reliance upon two

judgments T. Sivasubramaniam and Others. v. Kasinath Pujari

and Others. (1999) 7 SCC 275 and Hameedia Hardware Stores,

represented by its partner S. Peer Mohammed v. B. Mohan Lal

Sowcar (1988) 2 SCC 513.

12. The first appellate court considered the various documents

produced by the appellant - tenant and held that those documents

do not relate to the date of filling of the eviction petition. So far as

Exs.D-13, D-14 and D-15, the first appellate court held that those

bills were issued in the year 1996, 2000 and 2001 and that they do

not show that Rajendra Kumar was engaged in the business on the

date of filing of the suit for eviction i.e. on 22.01.1992. Insofar as,

the levy of fine of Rs.1,000/- in the criminal case for the violation of

provisions of the Weights and Measurements Act, the first appellate

court held that the said penalty was of the year 1988 and not

8 relating to the period of 1992 - the time of filing of the eviction

petition. So far as Ex.D-25, application made to the telephone

department, the first appellate court pointed out that the date below

the signature of Rajendra Kumar has been mentioned as

08.06.1996 and not relating to the year 1992. Likewise, regarding

Exs.D-26 and D-27, the documents concerning the life insurance

policy, the first appellate court pointed out that the insurance was

taken for the year 1994 and not for the year 1992. Likewise,

referring to the other documents filed by the appellant/defendant,

the first appellate court held that those documents are not related to

the time of filing of the suit i.e. 1992 and they do not show that

Rajendra Kumar was engaged in the business of utensils in the year

1992 i.e. at the time of filling of the eviction petition. Upon

consideration of the documents, the first appellate court and the

High Court recorded concurrent findings that the respondent

landlord has clearly established that Rajendra Kumar was not

employed on the date of filling of the eviction petition i.e. 22.01.1992

and the bona fide requirement has been proved.

13. In the present case, mere fact that Rajendra Kumar was

involved in the business of utensils – “Rajendra Bartan Bhandar” a

bona fide need of the premises cannot be doubted. It would be

9 inappropriate to expect the son of the respondent – landlord to sit

idle without doing any work till the eviction petition is decided on the

basis of the bona fide requirement. If there is categorical averment

by the respondent that the premises is required for his son Rajendra

Kumar; engaging in the business of utensils in the meanwhile,

cannot be a ground to deny a decree for eviction.

14. The other contention of the appellant is that respondent –

landlord had obtained possession of the adjacent shop from another

tenant - Babulal subsequently and the landlord, therefore, has an

alternative shop in the same building in the same market and,

therefore, the condition precedent for exercise of jurisdiction under

Section 12(1)(f) of the Act was not satisfied. Before the High Court,

the appellant – tenant had filed I. A. No.18652/09 under Order 41

Rule 27 CPC to bring on record the eviction of the tenant Babulal as

per judgment in S.A. No.472/2002 dated 01.09.2005, pursuant to

which the respondent – landlord has obtained vacant possession on

14.11.2006 of another shop by vacating another tenant – Babulal.

The contention of the appellant is that the availability of another

shop by subsequent event was not properly appreciated by the High

Court and the requirement of the landlord was not praesenti.

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15. Rights of the parties stand crystallised on the date of

institution of the suit. However, in appropriate cases, court can take

note of all the subsequent events. Observing that the court may

permit subsequent event being introduced into the pleadings by way

of amendment as it would be necessary to do so for the

performance of determining the rule in controversy for the parties

provided certain conditions are being satisfied, in Om Prakash

Gupta v. Ranbir B. Goyal, (2002) 2 SCC 256, it was held as

under:-

“11. The ordinary rule of civil law is that the rights of the parties stand crystallised on the date of the institution of the suit and, therefore, the decree in a suit should accord with the rights of the parties as they stood at the commencement of the lis. However, the Court has power to take note of subsequent events and mould the relief accordingly subject to the following conditions being satisfied:

(i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted; (ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; and (iii) that such subsequent event is brought to the notice of the court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise. In Pasupuleti Venkateswarlu v. Motor & General Traders (1975) 1 SCC 770, this Court held that a fact arising after the lis, coming to the notice of the court and having a fundamental impact on the right to relief or the manner of moulding it and brought diligently to the notice of the court cannot be blinked at. The court may in such cases bend the rules of procedure if no specific provision of law or rule of fair play is violated for it would promote substantial justice provided that there is absence of other disentitling factors or just circumstances. The Court speaking through Krishna Iyer, J.

affirmed the proposition that the court can, so long as the litigation pends, take note of updated facts to promote substantial justice. However, the Court cautioned: (i) the event should be one as would stultify or render inept the decretal remedy, (ii) rules of procedure may be bent if no specific provision or fair play is violated and there is no other special circumstance repelling resort to that course in

11 law or justice, (iii) such cognizance of subsequent events and developments should be cautious, and (iv) the rules of fairness to both sides should be scrupulously obeyed.”

16. The normal rule is that in any litigation the rights and

obligations of the parties are adjudicated upon as they obtained at

the commencement of the litigation. Whenever, there is subsequent

events of fact or law, which have a material barring on the rights of

the parties to relief or on the aspects of moulding appropriate relief

to the parties, the court is not precluded from taking cognizance of

the subsequent changes of fact and law to mould the relief (vide

Ramesh Kumar v. Kesho Ram (1992) Supp 2 SCC 623)

17. In Gaya Prasad relying on earlier decisions, this Court held

that the crucial date for deciding as to bona fide requirement of

landlord is the date of his application for eviction. It was a case of

bona fide requirement of the premises in question for starting a

clinic by the son of the landlord. The litigation continued for 23 years

and during that period the son of the landlord joined Provincial

Medical Service and was posted at different places. The Court

refused to take notice of the subsequent event holding that the

crucial date was the date of filing of the eviction petition.

18. In the light of the above principles and considering the case in

hand, the fact remains that the present case is of a landlord – tenant

12 dispute. As discussed infra, the shop vacated by other tenant –

Babulal is for the bona fide requirement of respondent – landlord’s

another son Rajesh Kumar Jain. In that view of the matter, the court

would not be justified in taking notice of such a subsequent fact

sought to be projected by the appellant to oppose the relief granted

by the courts below. In the facts and circumstances of the present

case, the subsequent event relied upon by the appellant – tenant

cannot be taken cognizance.

19. Admittedly, respondent – landlord obtained vacant possession

of the adjacent shop from the other tenant – Babulal on 14.11.2006

in pursuance of an order dated 01.09.2005 passed by the High

Court in Second Appeal No.472 of 2002. But the learned Senior

Counsel appearing for the respondent – landlord submitted that the

decree for eviction of the said tenant – Babulal was on the ground of

bona fide requirement of Rajesh Kumar Jain (other son of

respondent – landlord) as envisaged under Section 12(1)(f) of the

Act. It was submitted that respondent – landlord’s another son

Rajesh Kumar Jain has occupied the said adjacent shop and doing

the business of “Sara”. Respondent – landlord has four sons and

the other shop vacated by tenant – Babulal is meant for the bona

fide requirement of another son Rajesh Kumar Jain. If that shop is

13 not actually occupied by the other son Rajesh Kumar Jain, the other

tenant Babulal has a right to initiate the proceedings against the

landlord for his re-entry in the said adjacent shop in terms of the

provisions contained in Section 17 of the Act. Therefore, it cannot

be said that alternative accommodation was available for the

respondent – landlord’s son Rajendra Kumar due to vacation of the

said adjacent shop by another tenant Babulal.

20. Considering the pleadings and evidence on record, the High

Court rightly held that there is no ground to entertain the additional

documents and no substantial question of law arises. Upon

consideration of oral and documentary evidence, the first appellate

court and the High Court recorded concurrent findings of fact that

the suit shop is required bona fide for the son of the landlord for the

purpose of doing business and that the respondent – landlord has

no other reasonably suitable non-residential accommodation for the

business of his son. We do not find any good ground warranting

interference with the impugned judgment and this appeal is bound

to fail.

21. In the result, the judgment passed on 25.04.2012 in Second

Appeal No.279 of 2007 by the High Court of Madhya Pradesh is

confirmed and this appeal is dismissed. The appellant – tenant is

14 granted three months’ time to vacate and handover the possession

of the suit property. No costs.

.….......................J. [R. BANUMATHI]

…….....................J. [INDIRA BANERJEE]

New Delhi;

December 14, 2018.

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