Jai Prakash Gupta (D) Thr.Lrs vs Riyaz Ahamad & Anr

Jai Prakash Gupta (D) thr. Lrs. ...Appellants

Versus

Riyaz Ahamad & Anr. ..Respondents

JUDGMENT

TARUN CHATTERJEE, J.

1

1. In spite of repeated opportunities having been granted to

the respondents to contest this appeal, the respondents had

failed to appear at the time of hearing.

2. Leave granted.

3. This appeal by way of Special Leave arises from the

Judgment and final order of the High Court of Judicature at

Allahabad in Civil Misc. Writ Petition No.1112 of 2001 dated

11th of December, 2007, whereby the High Court had set aside

the Judgment and order of the Additional District Judge,

Meerut and remanded the same to it to consider the effect of

subsequent developments which had occurred, on the

question of bonafide requirement of the landlord and also on

the comparative hardship of the parties.

4. The brief facts, which are necessary for decision of this

appeal are as follows :-

2

On 17th of December, 1992, the father of the present

landlord, viz. Late Sri Jai Prakash Gupta had filed an

application under Section 21(1)(a) of the U.P. Act No. 13 of

1972 (hereinafter referred to as "the Act") before the Prescribed

Authority at Meerut for the release of the Shop No. 51,

situated at the Ground Floor in House No. 64, Banshipura,

Suraj Kund Road, Meerut (hereinafter referred to as "the shop

in dispute"). It was pleaded in the application for release that

the landlord required the shop in dispute for his bonafide need

to use the same as an office space to establish his son in the

profession of Chartered Accountancy. It was alleged that the

tenant was running a big business of `Verk' job in Khairnagar

in Meerut City and that he would suffer no hardship since he

had kept the shop in dispute unutilized. The tenant not

having vacated the shop in dispute which would be required

for the bonafide requirement of the landlord, the landlord was

constrained to file the application for release.

3 5. The tenant entered appearance and contested the

application for release by filing a written objection denying the

material allegations made in the application for release. It was

specifically denied that the landlord required the shop in

dispute for the above mentioned purpose and, therefore, the

tenant sought for dismissal of the application for release filed

by the landlord.

4

6. Parties adduced evidence and issues were framed by the

Prescribed Authority in which one of the issues was whether

the landlord required the shop in dispute for his bonafide

requirement for starting an office for his Chartered Accountant

son. After framing issues and after the parties had led

evidence in support of their respective claims, the Prescribed

Authority rejected the application for release, inter alia,

holding that since the landlord was in occupation of a space

available in the first floor, where he along with family members

are residing, he could very well use the same as the office of

his Chartered Accountant son and such space, being available

to the landlord, shall be sufficient for their requirement. It

was further held by the Prescribed Authority that there was no

need to consider the case of comparative hardship of the

parties when bonafide requirement of the landlord was not

proved.

7. Aggrieved by the said decision of the Prescribed

Authority, the landlord filed an appeal under Section 22 of the

Act and on 14th of December, 2000, the Additional District

Judge, 11th Court at Meerut, allowed the appeal filed by the

5 landlord and set aside the order of the Prescribed Authority

inter alia holding that the landlord required the shop in

dispute for the use as mentioned above, as he was of the view

that it was an appropriate place for the son to start his office

as a Chartered Accountant. It was further held on

consideration of the materials on record that the tenant would

not face much hardship if the shop in dispute was released in

favour of the landlord since the father of the tenant had

sufficient space for `lathe work' in an alternative place.

Keeping in view the professional requirement of the son of the

landlord to start his office of chartered accountancy for which

the landlord needed more space, the order of the Prescribed

Authority was set aside and the application for release was

allowed by the Appellate Court.

8. Aggrieved by this order of the Appellate Court, the tenant

filed a writ petition, which came to be registered as Civil Misc.

Writ Petition No. 1112 of 2001 before the High Court of

Judicature at Allahabad. During the pendency of the writ

petition, the original applicant for release of the shop in

dispute i.e. the father of the present appellant died and in his

6 place, the heirs and legal representatives of the original

appellant were substituted by the High Court by an order

dated 25th of August, 2005. During the pendency of the writ

petition, it was brought on record that the mother of the

appellant and the father of the tenant had also expired. On

23rd of May, 2007, the tenant, by a Supplementary Affidavit,

alleged that after the death of the original appellant, the

present appellant, Mr. Manoj Kumar Gupta, the only son of

the original appellant (since deceased), has inherited all his

residential and commercial property and, therefore, the alleged

need of the landlord had become fully satisfied, rendering the

release proceeding infructuous. The tenant, in the said

Supplementary Affidavit, further alleged that the printing

business conducted by the deceased father of the present

landlord had ceased to exist and consequent thereupon, one

big hall and two rooms came in possession of the present

landlord.

9. Replying to this supplementary affidavit, the present

landlord, by a counter affidavit, however, claimed that in 15

years of litigation, his bonafide need had become more

7 pressing and genuine as he now has two sons aged about 17

and 16 years and one daughter aged about 13 years.

Moreover, it was alleged in the counter affidavit that his wife

was running an Education Centre on the first floor of the shop

in dispute. It was further alleged in the counter affidavit filed

by the present landlord that after the death of the father of the

tenant, the tenant had inherited a house at Khairanagar,

Meerut, in which the tenant and his family members are now

residing and also carrying on the workshop of `lathe machine'.

Therefore, the present landlord alleged that the subsequent

developments brought in by the tenant and the counter

affidavit filed by the present landlord, were not at all material

so as to nullify the need of the landlord.

10. The writ petition thereafter came up for hearing before

the High Court of Allahabad on 11th of December, 2007 and

the High Court had set aside the Judgment of the Appellate

Court dated 14th of December, 2000 in view of the subsequent

developments as noted in the supplementary affidavit filed by

the tenant and the counter affidavit filed by the appellant and

remanded the case back to the Appellate Court to consider the

8 effect of such subsequent developments on the bonafide need

of the present landlord and also on the question of

comparative hardship of the parties.

11. Feeling aggrieved, the present landlord has preferred this

instant Special Leave Petition, which on grant of leave, was

heard in presence of the learned counsel for the parties.

12. Before us, the learned counsel appearing for the present

landlord contended that the subsequent developments, as

stated in the supplementary affidavit as well as in the counter

affidavit, were not at all material enough to negate the need of

the shop in dispute of the present landlord and, therefore,

there was no reason for the High Court in the exercise of its

Writ Jurisdiction to remand the matter back to the Appellate

Court, which in no way, can help the cause of justice, rather it

will aggravate the hardship of the landlord by delaying the

matter for another 15 years. The learned counsel for the

landlord also submitted that the High Court, while setting

aside the Judgment of the Additional District Judge, Meerut

and remanding the matter to it, had failed to record any

reason as to why an order of remand was necessary and the

9 findings already arrived at by the Appellate Court were

perverse, apart from relying on the sole subsequent event of

the death of the parents of the appellant and also the father of

the tenant along with the fact that the present landlord had

acquired house behind the shop in dispute in a vacant

condition.

13. As noted earlier, no one has entered appearance on

behalf of the tenant at the time of hearing of this appeal to

controvert the submissions made by the learned counsel for

the present landlord.

14. Having carefully examined the submission of the learned

counsel for the landlord/appellant and after going through the

impugned Judgment of the High Court as well as of the

Appellate Court and also the supplementary affidavit and

counter affidavit filed by the parties and other materials on

record, we are of the view that the only question that needs to

be decided is, whether the High Court was justified in

remanding the case back for disposal to the Appellate Court

on the sole reasoning of subsequent developments, without

looking at the findings of the Appellate Court and secondly,

10 that even assuming the order of remand was necessary in the

facts and circumstances of the case and in view of the

subsequent developments that had taken place in the

meantime, an order of limited remand was required only to

decide the question of bonafide requirement on the

subsequent developments that had taken place in respect of

which supplementary affidavit and counter affidavit were filed

by the parties before the High Court. From the impugned

Judgment, the High Court had noticed that since the parents

of the present appellant were dead, more accommodation

would be available to the landlord not only from the inherited

property but also from the accommodation, in which the

parents used to reside. It was also pointed out by the High

Court in the impugned order that the present landlord had

acquired a house behind the shop in dispute in a vacant

condition during the pendency of the proceedings. From the

counter affidavit filed by the landlord/appellant, it appears

that at the present moment, two sons and a daughter had

grown up and, therefore, the requirement had also increased.

Accordingly, the landlord/appellant sought to contend that

11 even if his parents had died and the accommodation that was

available to his parents would now be available to the

landlord/appellant, but still then in view of his growing sons

and daughter, the need of the shop in dispute would still

remain. Therefore, now the question remains to be seen is

whether the facts, as stated hereinearlier, would be relevant to

decide the bonafide need of the landlord/appellant and

comparative hardship under the Act after amending the

pleadings in the original release application to bring on record

the requirement of the two sons and one daughter. It is true

that on the death of the parents of the landlord/appellant,

more space for accommodation would become available to the

landlord/appellant, the question would still be there to

consider whether such space available now on the death of the

parents of the landlord/appellant would be reasonable and

suitable for the purpose of starting an office for him. It was

brought to the notice of the High Court that the two sons and

the daughter have grown up, therefore, the requirement of the

landlord/appellant, at the present moment, would also

increase. It is a fact which may be gone into by the Court if

12 the landlord/appellant is permitted to amend his pleading

bringing the fact namely, the requirement of his two sons and

a daughter.

15. In our view, there cannot be any argument that the facts

brought in by way of subsequent developments are relevant

and it certainly needs to be gone into on evidence. But since

the litigation is pending for the last 15 years, that is to say,

from 1992, we are of the view that instead of setting aside the

entire order of the Appellate Court and sending the case back

to the same for fresh decision on subsequent developments

which were brought before the High Court, only an order of

limited remand to the Appellate Court ought to have been

passed by the High Court, keeping the file pending before it

and after receiving the evidence on the effect of subsequent

developments on the question of bonafide need and

comparative hardship from the Appellate Court and the

finding of the Appellate Court on such question, considering

the entire evidence and also the supplementary affidavit and

counter-affidavit filed by the parties and other materials on

record, the Writ Petition can be decided afresh.

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16. It is true that a suit or an original proceeding is to be

tried in all its stages on the cause of action as it existed on the

date of its commencement. The only exception to this rule is

that a Court may take notice of events, which have happened

since the institution of the suit or the original proceeding and

grant relief to the parties on the basis of the altered

conditions, is applied in cases where it is shown that the

original relief claimed has, by reason of subsequent change of

circumstances, become inappropriate or that it is necessary to

base the decision of the Court on the altered circumstances in

order to shorten litigation or to do complete justice between

the parties. [See Rai Chand Mandal and another Vs. Biswa

Nath Mandal and others; XX CLJ 107]. This was the view

expressed by Sir Ashutosh Mukherjee, J. (as His Lordship

then was) on this question when subsequent developments

should be taken into consideration by the Court during the

pendency of a proceeding or of a suit or even at the appellate

stage.

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17. The same view has been expressed yet in a later decision

of the Calcutta High Court to the effect that where it is shown

that the original relief claimed by reason of subsequent change

of circumstances become inappropriate or that it is necessary

to base the decision of the Court on the altered circumstances

in order to shorten litigation or to do complete justice between

the parties. [See Nuri Mian Vs. Ambica Singh and another

24 CLJ 140]

18. Again in Pratap Rai Tanwani Vs. Uttam Chand (2004

(8) SCC 490), this Court also held that subsequent

developments can be taken into consideration to afford relief

to the parties, provided only when such developments had a

material impact on those rights and obligations.

19. Similar was the view expressed in Ramesh Kumar Vs.

Kesho Ram [1992 Supp. (2) SCC 623 where this Court

observed as follows : -

"6. The normal rule is that in any litigation the rights and obligations of the parties are

15 adjudicated upon as they obtain at the commencement of the lis. But this is subject to an exception. Wherever subsequent events of fact or law which have a material bearing on the entitlement of the parties to relief or on aspects which bear on the moulding of the relief occur, the court is not precluded from taking a `cautious cognizance' of the subsequent changes of fact and law to mould the relief."

(Emphasis supplied).

20. It also reminds us of a celebrated Judgment of a Full

Bench decision of the Nagpur High Court in Chote Khan Vs.

Mohammad Obedalla Khan [AIR 1953 Nagpur 361], in

which the view of the Court to take note of the subsequent

developments specially at the appellate stage was taken up for

consideration. Hidayatulla, J (as His Lordship then was) held

as under :

"on a review of judicial opinion, that an action must be tried in all its stages on the cause of action as it existed at the commencement of an action. No doubt, Courts 'can' and sometimes 'must' take notice of subsequent events, but that is done merely 'inter partes' to shorten litigation but not to give to a defendant an advantage because a third party has acquired the right of the plaintiff. (Emphasis supplied)"

16 21. In view of the discussions made hereinabove, it is

therefore, a settled proposition of law that subsequent

developments of fact or law which have a material bearing on

the entitlement of the parties to relief or on aspects which bear

on the moulding of the relief occur, the Court, even at any

stage of the proceeding, is not precluded from taking a

cautious cognizance of the subsequent developments of fact

and law to mould the relief. Keeping these principles in mind

and considering the nature of subsequent developments as

brought out by the parties during the pendency of the writ

petition, we are of the view that we will have to find out a

solution within the scope of this exception. Therefore, the test

is whether the subsequent events of fact have a material

bearing on the entitlement of the parties to relief or on aspects

which bear on the moulding of the relief awarded before

consideration of such subsequent events.

22. In the present case, the death of the father of the

appellant is taken as a valid excuse by the tenant to argue

that since the present landlord had other options for

accommodation and for starting an office as a Chartered

17 Accountant, he could, without any hardship, forgo his claim to

the shop in dispute. Again, if it is an admitted position that

the present landlord has acquired a house behind the shop in

dispute, then he has to prove by evidence that the said house

available is not suitable for starting an office space for his

Chartered Accountancy firm. In this connection, we have

examined the factual findings of the Appellate Court and

concluded that the recorded findings are insufficient to decide

the matter in the light of the subsequent developments. The

occurrence of the subsequent developments has not been

denied upon by the appellant, in fact, has been accepted by

him. But the landlord/appellant has also, by his counter

affidavit, pleaded that in view of the long pendency of the

proceeding for release, his requirement has increased as the

two sons and a daughter have grown up and, therefore, the

requirement of the landlord/appellant has to be adjudged in

the light of the statements made by him in the counter

affidavit. Thus, the issue that needs to be examined now is

whether there is any change in the nature of the claim of the

present appellant consequent upon the occupation of a house

18 in vacant condition behind the suit building and also

consequent upon the death of the father of the original

landlord, who was running a business in the suit building

which had fallen vacant because of the death of the father of

the appellant and also the accommodation that was available

to the parents of the appellant would also be taken into

consideration for the purpose of coming to a finding as to

whether the appellant still requires the shop in dispute or not.

That apart, the tenant submitted, the occupation of house,

which was used for running the printing business of his

deceased father has come to the use of the landlord/appellant,

and therefore, the requirement of the landlord has already

been fulfilled. Moreover, in the light of the fact that the tenant

now has alternative space for his business, it has to be seen

whether such alternative space is suitable enough for the

tenant and whether he can shift there without substantial

loss. Therefore, we are of the view that the High Court was

fully justified in setting aside the order of the Appellate Court

in view of the fact that all the facts stated herein need to be

gone into after taking evidence on such facts. The effect of the

19 subsequent developments on the bonafide need of the present

landlord as well as the comparative hardship of the parties on

material facts could not be taken into consideration by the

Writ Court without proper evidence on record. However,

considering the age of the litigation i.e. 15 years and if the

matter is sent back to the Appellate Court, the proceeding may

continue for another 15 years, we are of the view that the High

Court was not justified in sending the case back to the

Appellate Court for fresh decision in the light of the

subsequent developments as noted hereinabove. In our view,

it would have been appropriate and proper and in the interest

of justice for the High Court to keep the Writ Petition pending

before it and sent back the issue on the effect of subsequent

developments and supplementary affidavit and counter

affidavit on bonafide requirement and comparative hardship to

the Appellate Court and after the Appellate Court taking

evidence, it shall send back to the High Court, the evidence

that would be taken and also the findings arrived at thereon.

In the event, the Appellate Court finds it difficult to take

evidence on its own, it will be open to it to frame the issue and

20 send the same to take evidence to the Prescribed Authority

who, in turn, will take the evidence of the parties and send the

same to the Appellate Court for the purpose of considering the

issue of bonafide requirement of the landlord/appellant and

comparative hardship of the parties. In view of the statements

made in the counter affidavit filed by the landlord/appellant to

the extent that he has got two grown up sons and a daughter

and that being the position, the requirement of the present

landlord has increased and, therefore, the tenant/respondent

is liable to be evicted. That being the position, we are,

therefore, of the view that it would be open to the

landlord/appellant to file an application for amendment of the

original release application for the purpose of incorporating

the fact of the requirement of two sons and a daughter by

amending the same to which it would be open to the

respondent/tenant to file written objection.

23. For the reasons aforesaid, we are, therefore, of the

opinion that for the purpose of coming to a positive conclusion

on the bonafide need of the present landlord and the

comparative hardship of the parties on the basis of the

21 subsequent developments, as noted hereinearlier, the matter

needs to be examined on further evidence after restoring the

Writ Petition before the High Court with a direction in the

manner indicated above in view of the fact that the justice has

already been delayed for a long time.

24. For the reasons aforesaid, we set aside the Judgment of

the High Court and restore the Writ Petition and direct the

High Court to decide the same in the manner indicated above.

25. Accordingly, the High Court is requested to decide the

writ petition within 6 months from the date of the supply of a

copy of this order to it without granting any unnecessary

adjournments to either of the parties in the light of the

directions made hereinabove.

26. The appeal is thus allowed to the extent indicated above.

There will be no order as to costs.

..........................J. [Tarun Chatterjee]

New Delhi; ............................J. October 28, 2009. [Aftab Alam]

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