Sheshambal (Dead) Through L.Rs. vs M/S. Chelur Corporation Chelur Building & Ors.

tenant wife affirmed. In a nutshell, the facts giving rise to the

controversy are as under:

2. Late Shri K. Sachindanda Iyer and his wife late Smt. A

Sheshambal Sachindanda Iyer owners of the premises in

dispute let out the same to respondent No.1 for a period of

three years in terms of a lease dated 12th April, 1983. On the

expiry of the lease period the owners filed RCP No.116 of 1986

before the Rent Controller at Ernakulam seeking eviction of

the tenant-occupant on the ground that they required the

same for their bona fide personal occupation within the

meaning of Section 11(3) of the Kerala Buildings (Lease and

Rent Control Act), 1965. The prayer for eviction was opposed

by the tenant, inter alia, on the ground that the owners did

not require the demised premises and that the tenant would

find it difficult to shift its business to any other premises on

account of non-availability of a suitable accommodation for

being so. The Rent Controller eventually came to the

conclusion that the owners had failed to establish their bona

fide requirement of premises. The Rent Controller held that the 3

owners had shifted their residence from Cochin and were

living with their daughter and son-in-law who were running a

nursing home in that city.

3. Aggrieved by the order passed by the Rent Controller, the

owners appealed to the Appellate Authority who affirmed the

decision taken by the Rent Controller holding that the owners

were residing with their daughter and son-in-law at

Ernakulam in a building owned by the owners. The Appellate

Authority also found that the owners had a cottage at

Kodaikanal and that being fairly old had no reason to shift

back to Ernakulam in search of better medical facilities

especially when their own son-in-law was running a nursing

home at Coimbatore where such facilities were available to

them. Absence of any medical evidence to show that the

owners suffered from any illness was also cited as a ground for

dismissal of the prayer for eviction.

4. Aggrieved by the orders passed by the Rent Controller

and the Appellate Authority the owners brought up the matter 4

before the High Court of Kerala in a revision with a view to

have the concurrent findings recorded by the Courts below set

aside. The High Court, as noted earlier, has refused to

intervene in the matter and dismissed the revision petition.

The High Court held that it was not expected to reappraise the

evidence produced by the parties in the exercise of its

revisional jurisdiction and that the limited question that fell

for its consideration was whether the procedure followed by

the Rent Controller and the Appellate Authority was illegal,

irregular or improper. The High Court noted that the rent of

the premises paid by the tenant had not been revised since the

year 1973. The same was, therefore, enhanced to Rs.10,000/-

p.m. w.e.f. 1.11.2003 onwards with liberty to the parties to

approach the competent Court for fixation of fair rent for the

demised premises. The present appeal, as seen earlier, calls in

question the correctness of the above orders.

5. It is not in dispute that during the pendency of the

revision petition before the High Court the landlord Shri K.

Sachindanda Iyer passed away on 24th April, 1996 leaving 5

behind his wife Smt. A. Sheshambal Sachindanda Iyer as the

sole revision petitioner seeking eviction of the respondent-

tenant. Consequent upon the dismissal of the revision petition

the present appeal was filed by Smt. A. Sheshambal

Sachindanda Iyer alone who too passed away before this

appeal could be heard for final disposal. IA No.7/2008 filed on

14th November, 2008 sought substitution of the legal

representatives of the appellant on the basis of a Will left

behind by the deceased according to which the property in

question has to devolve upon the three daughters left behind

by the deceased. It is common ground that two of the

daughters are living in India one each at Coimbatore and

Bihar the third daughter is settled in America.

6. The short question that was, in the above backdrop,

argued by learned counsel for the parties at considerable

length was whether the proceedings instituted by the

deceased-owners of the demised property could be continued

by the legal heirs left behind by them. Mr. K.V. Vishwanathan,

learned senior counsel, appearing for the legal heirs of the 6

deceased-appellant contended that it was permissible for the

legal heirs to continue the present proceedings and seek

eviction of the tenant on the basis of the requirement pleaded

by the erstwhile owners in the eviction petition filed by them.

The rights and obligations of the parties, argued Mr.

Vishwanathan, get crystallized as on the date of the filing of

the petition. Any subsequent development, according to the

learned counsel, would be irrelevant to the maintainability or

the continuance of the proceedings after the death of the

original petitioners. Reliance in support of that submission

was placed by the learned counsel upon the decisions of this

Court in Shamshad Ahmad vs. Tilak Raj Bajaj (2008 (9)

SCC 1), Maganlal Vs. Nanasaheb (2008 (13) SCC 758),

Pratap Rai Tanwani Vs. Uttam Chand (2004 (8) SCC 490),

Gaya Prasad Vs. Pradeep Srivastava (2001 (2) SCC 604),

Kamleshwar Prasad Vs. Pradumanju Agarwal (1997 (4) SCC

413), Shakuntala Bai Vs. Narayan Das (2004 (5) SCC 772),

G.C. Kapoor Vs. Nand Kumar Bhasin (2002 (1) SCC 610)

and Shantilal Thakordas Vs. Chimanlal Maganlal Telwala

(1976 (4) SCC 417).

7

7. On behalf of the respondent-tenants Mr. L. Nageswara

Rao, learned senior counsel, placed heavy reliance on the

decisions of this Court in Pasupuleti Venkateswarlu Vs.

Motor and General Traders (1975 (1) SCC 770), Om

Prakash Gupta Vs. Ranbir B. Goyal (2002 (2) SCC 256),

Hasmat Rai Vs. Raghunath Prasad (1981 (3) SCC 103) and

Baba Kashinath Bhinge Vs. Samast Lingayat Gavali (1994

Supp (3) SCC 698). It was argued by Mr. Rao that the legal

position as to whether the Court could take note of the

subsequent developments stood settled by the above decisions

which left no manner of doubt that all such developments as

have an impact on the rights and obligations of the parties

must be taken into consideration by the Court and the relief

suitably moulded.

8. The eviction petition, as noted earlier, was filed in terms

of Section 11(3) of the Kerala Buildings (Lease and Rent

Control Act), 1965, which reads:

"Section 11(3): A landlord may apply to the Rent Control Court for an order directing the 8

tenant to put the landlord in possession of the building if he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him.

Provided that the Rent Control Court shall not give any such direction if the landlord has another building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied that for special reasons, in any particular case it will be just and proper to do so;

Provided further that the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business:

Provided further that no landlord whose right to recover possession arises under an instrument of transfer inter vivos shall be entitled to apply to be put in possession until the expiry of one year from the date of the instrument:

Provided further that if a landlord after obtaining an order to be put in possession transfer his rights in respect of the building to another person, the transferee shall not be entitled to be put in possession unless he proves that he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him."

9. It is not in dispute that in the eviction petition the

owners had pleaded their own requirement for the premises to 9

be occupied by them for residential as well as commercial

purposes. The eviction petition was totally silent about the

requirements of any member of the family of the owners-

petitioners leave alone any member of their family who was

dependant upon them. That being so the parties went to trial

before the Rent Controller on the basis of the case pleaded in

the petition and limited to the requirement of the owners for

their personal occupation. Neither before the Rent Controller

nor before the Appellate Authority was it argued that the

requirement in question was not only the requirement of the

petitioner-owners of the premises but also the requirement of

any other member of their family whether dependant upon

them or otherwise. Not only that, even in the petition filed

before this Court the requirement pleaded was that for the

deceased-widowed owner of the demised premises and not of

any member of her family. Super added to all this is the fact

that the legal representatives who now claim to be the family

members of the deceased are all married daughters of the

deceased couple each one settled in their respective

matrimonial homes in different cities and at different places. 10

That none of them was dependant upon the deceased-

petitioner is also a fact undisputed before us. Even otherwise

in the social milieu to which we are accustomed, daughters

happily married have their own families and commitments

financial and otherwise. Such being the position we find it

difficult to see how the legal representatives of the deceased-

appellant can be allowed to set up a case which was never set

up before the Courts below so as to bring forth a requirement

that was never pleaded at any stage of the proceedings.

Allowing the legal heirs to do so would amount to permitting

them to introduce a case which is totally different from the one

set up before the Rent Controller the Appellate Authority or

even the High Court. The position may indeed have been

differentiated if in the original petition the petitioner-owners

had pleaded their own requirement and the requirement of

any member of their family dependant upon them. In such a

case the demise of the original petitioners or any one of them

may have made little difference for the person for whose

benefit and bona fide requirement the eviction was sought

could pursue the case to prove and satisfy any such 11

requirement.

10. Confronted with the above position Mr. Vishwanathan

made in generous submission. He contended that the rights

and obligations of the parties get crystalized at the time of

institution of the suit so that any subsequent development is

not only inconsequential but wholly irrelevant for

determination of the case before this Court. Learned counsel

sought to extend that principle to the case at hand in an

attempt persuade us to shut out the subsequent event of the

death of the original petitioners from consideration. We regret

to say that we do not see any basis for the submission so

vehemently urged before us by Mr. Vishwanathan. While it is

true that the right to relief must be judged by reference to the

date suit or the legal proceedings were instituted, it is equally

true that if subsequent to the filing of the suit, certain

developments take place that have a bearing on the right to

relief claimed by a party, such subsequent events cannot be

shut out from consideration. What the Court in such a

situation is expected to do is to examine the impact of the said 12

subsequent development on the right to relief claimed by a

party and, if necessary, mould the relief suitably so that the

same is tailored to the situation that obtains on the date the

relief is actually granted. That proposition of law is, in our

view, fairly settled by the decisions of this Court in Pasupuleti

Venkateswarlu case (supra). Krishna Iyer J. (as His Lordship

then was) has in his concurring judgment lucidly summed up

legal position in the following words:

"....................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 cannot 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 cognisance of events and developments 13

subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed............."

11. To the same effect is the decision of this Court in Om

Prakash Gupta's case (supra) where the Court declared that

although the ordinary rule of civil law is that the rights of the

parties stand crystalised on the date of the institution of the

suit yet the Court has power to mould the relief in case the

following three conditions are 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......"

12. In Hasmat Rai's case (supra), this Court observed that if

the tenant is in a position to show that the need or

requirement no more exists because of subsequent events, it

would be open to him to point out such events and the court, 14

including the appellate court, has to examine, evaluate and

adjudicate upon the same.

13. To the same effect is the decision of this Court in Baba

Kashinath Bhinge's case (supra) where relying upon the

decision in Hasmat Rai's case (supra) this Court held that in

a case of bona fide requirement it is necessary to establish

that the landlord needs the premises and the need subsists till

a decree is passed in his favour. In a case where such need is

available at the time of the filing of the petition but becomes

extinct by the time the matter attains finality in appeal for

revision no decree will be justified. For that purpose the Court

should take all the subsequent events into consideration and

mould the relief accordingly. Following passage provides a

complete answer to the question raised before us:

"Equally it is settled by this Court in series of judgments and a reference in this behalf would be sufficient by citing Hasmat Rai v. Raghu Nath Prasad that in a case of bona fide requirement, it is always necessary, till the decree of eviction is passed that the landlord should satisfy that the need is bona fide and the need subsists. In a case where the need is available at the time of filing the petition, but at the time of granting decree it may not continue to subsist, in that event, the decree 15

for eviction could not be made. Similarly pending appeal or revision or writ petition, the need may become more acute. The court should take into account all the subsequent events to mould the relief. The High Court may not be justified in omitting to consider this aspect of the matter but that does not render the judgment illegal for the subsequent discussion we are going to make."

(emphasis supplied)

14. Reference may also be made to Ramesh Kumar Vs.

Kesho Ram (1992 Supp (2) SCC 623) where Venkatachaliah,

J. (as His Lordship then was) expressed a similar view in the

following words:

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

15. Similarly, in Maganlal's case (supra) all that this Court

held was that if the litigation keeps extending and number of

developments sprouting up during the long interregnum, the 16

Court should adopt a pragmatic approach in the matter and

determine whether or not the development pending finalization

of the litigation is such as would completely non-suit the party

concerned. This decision is, in our view, no authority for this

proposition that subsequent developments having material

impact on the rights and obligations of the parties can be

ignored by a Court simply because such rights and obligations

have to be determined by reference to the date on which the

litigation was instituted.

16. The decision of this Court in Kedar Nath Agrawal (dead)

and Anr. Vs. Dhanraji Devi (dead) by LRs. and Anr. (2004

(8) SCC 76) has reiterated the legal position after a detailed

review of the case law on the subject. That was also a case

where two applicants seeking eviction of the tenant had

passed away during the pendency of the eviction petition and

the question was whether the three married daughters left

behind by the couple could continue with the same. This

Court observed:

17

"31. In view of the settled legal position as also the decisions in Pasupuleti Venkateswarlu5 and Hasmat Rai1, in our opinion, the High Court was in error in not considering the subsequent event of death of both the applicants. In our view, it was power as well as the duty of the High Court to consider the fact of death of the applicants during the pendency of the writ petition. Since it was the case of the tenant that all the three daughters got married and were staying with their in-laws, obviously, the said fact was relevant and material....."

17. The decisions of this Court in Pratap Rai Tanwani's case

(supra), Gaya Prasad's case (supra), Kamleshwar Prasad's

case (supra), Shakuntala Bai's case (supra), G.C. Kapoor's

case (supra), and Shantilal Thakordas Vs. Chimanlal

Maganlal Telwala (1976 (4) SCC 417), Pukhraj Jain Vs.

Padma Kashypa (1990 (2) SCC 431) do not, in our opinion,

lend any support to the proposition that subsequent

developments cannot be noticed by the Court especially when

such developments have an impact on the right of a party to

the relief prayed for.

18. We may in particular refer to the decision of this Court in

Shantilal Thakordas's case (supra) in which this Court had

overruled the earlier decision rendered in Phool Rani & Ors. 18

Vs. Naubat Rai Ahluwalia (1973 (1) SCC 688) and held that

the law permitted the eviction of the tenant for the

requirement of the landlord for occupation of the landlord as

residence for himself and members of his family and that such

a requirement was both of the landlord and the members of

his family so that upon the death of this landlord the right to

sue survived to the members of the family of the deceased.

That is not the position in the instant case. As noticed earlier,

the requirement pleaded in the eviction petition by the original

petitioners was their own personal requirement and not the

requirement of the members of their family whether dependant

or otherwise. Indeed if the deceased landlords had any

dependant member of the family we may have even in the

absence of a pleading assumed that the requirement pleaded

extended also to the dependant member of their family. That

unfortunately, for the appellants is neither the case set up nor

the position on facts. The deceased couple did not have any

dependant member of the family for whose benefit they could

have sought eviction on the ground that she required the

premises for personal occupation.

19

19. In the light of what we have stated above, we have no

hesitation in holding that on the death of the petitioners in the

original eviction petition their right to seek eviction on the

ground of personal requirement for the demised premises

became extinct and no order could on the basis of any such

requirement be passed at this point of time.

20. There is one other aspect to which we must advert at this

stage. The High Court had, while disposing of the revision

petition filed before it, come to the conclusion that the

demised premises is large and located in a popular commercial

area of the city of Cochin. It has found that the rent for the

premises was very low and had not been revised since the year

1973. The High Court accordingly revised the rent to

Rs.10,000/- per month payable w.e.f. 1.11.2003 onwards

leaving it open to the parties to get the fair rent determined for

the demised premises.

20

21. During the pendency of this appeal, the appellants had

filed an application seeking a direction against the respondent

for payment of rent @ Rs.50,000/- per month. The application

supported by an affidavit, inter-alia, alleges that the market

rent of the premises in question was not less than Rs.50,000/-

per month as in September 2005 when the application was

filed. A Valuation Certificate issued by Shri K. Radhakrishnan

Nair, Chartered Engineer & Approved Valuer, is also enclosed

with the application, according to which the market value of

the plot in question was not less than Rs.7,00,000/- per cent

and the current market rent for the building not less than

Rs.8/- per square feet. As per the lease deed entered between

the deceased owners and the respondents, the premises in

question is constructed over an area measuring about 20

cents. The covered area is said to be 5000 sq. ft. or so. In the

circumstances while the High Court was justified in tentatively

revising the rent for the premises, the revision was not, in our

opinion, adequate. Keeping in view the totality of the

circumstances, we are of the view that instead of Rs.10,000/-

determined by the High Court, the respondents shall pay 21

Rs.15,000/- per month towards rent w.e.f. 1.11.2003. The

same shall stand revised to Rs.25,000/- per month w.e.f.

1.1.2009. The differential amount thus payable shall be

deposited by the respondents before the Rent Controller within

six months from today whereupon the Rent Controller shall

take steps to disburse the same to the appellants, the current

owners of the premises. Needless to say that the revision

ordered by us is also tentative and shall not prevent the

parties from seeking determination of the fair rent for the

premises by instituting proceedings before the competent

Court/authority in accordance with law.

22. With the above modification, this appeal is disposed of

leaving the parties to bear their own costs.

.................................J. (MARKANDEY KATJU)

.................................J. (T.S. THAKUR) New Delhi February 17, 2010