# Rajendra Prasad v. Narendra Mittal & Ors

- **Citation:** (2016) 8 ILRA 890
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-08-10
- **Bench:** Mrs. Sunita Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajendra-prasad-v-narendra-mittal-ors-44284
- **Pages:** 14

## Text

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890 INDIAN LAW REPORTS ALLAHABAD SERIES

(2016) 8 ILRA 890
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.08.2016

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.

Writ A No.- 32138 Of 2007

Rajendra Prasad ...Petitioner
Versus
Narendra Mittal & Ors. ...Respondents

Counsel for Petitioner:
Ajit Kumar, Radha Kamal Saraswat, Shashi Nandan

Counsel for Respondents:
A.K. Gupta, A.K. Gupta, S.C.

Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 - Section
21(1)(a) - Release Application - Bonafide Need - Joint Family Business -- Release application filed
by three landlord-brothers for release of a godown for establishing three adult sons in an independent
business of sale of empty tin cans -- Sons at time of filing unemployed and not engaged in any business --
Prescribed Authority rejected release application holding sons engaged in joint family business hence need not
genuine -- Appellate Court reversed finding, holding large joint family business does not extinguish
independent need of adult sons to start new venture -- Held: Merely because sons engaged themselves in
joint family business as stop-gap arrangement, their need for independent business cannot be held to be not
bonafide -- Every adult member of family has right to start his own independent business. (Para 1)
Subsequent Events - Death of Original Applicants - Effect on Bonafide Need -- Original applicantslandlords died during pendency of writ petition, succeeded by their sons and other legal heirs -- Contention
raised that need set up in release application stood eclipsed by subsequent event of death and consequent
engagement of successor-sons in family business -- Held: Crucial date for testing bonafide need of landlord is
date of filing of release application -- Subsequent events can affect such need only where they are of such
nature and dimension as to completely eclipse the need altogether -- Death of original applicant-landlords,
followed by successor-sons continuing family business for want of alternative livelihood, does not amount to
complete eclipse of need originally pleaded. (Para 2)
Partition of Joint Family Property During Pendency of Litigation - Effect on Need -- Partition
amongst joint family members during pendency of writ petition resulted in disputed godown falling to share of
specific successor -- Held: Partition of joint family property/business during interregnum of long-drawn
litigation does not by itself frustrate need of landlords since other members of family, including person in
whose share property fell, remain entitled to press same need for independent business. (Para 3)
Non-Disclosure of Other Accommodation - Effect -- Tenant contended landlords possessed other
business and residential premises not disclosed in release application, and that such non-disclosure vitiated
bonafide need -- Held: Non-disclosure of other premises in occupation of large joint family is not fatal where
such premises are shown to be unsuitable for proposed business -- Appellate Court having examined each
such property in detail and found none suitable, no adverse inference could be drawn against landlords. (Para
4)
8 All. Rajendra Prasad Vs Narendra Mittal & Ors.
891
Comparative Hardship - Godown - No Goodwill Attached -- Held: Since disputed accommodation is a
godown, to which no goodwill is attached unlike a retail shop, it can conveniently be shifted to alternative
premises -- Comparative hardship rightly held in favour of landlords -- Tenant possessing sufficient
alternative accommodation, no hardship shown to be caused to him. (Para 5)

Rent Control Act - Applicability - Interim Enhancement of Rent by High Court -- Rent enhanced by
High Court under interim order as condition for staying dispossession during pendency of writ petition --
Contention that such enhancement took premises out of purview of Rent Control Act -- Held: Rent enhanced
under interim order to protect tenant from eviction pendente lite does not amount to enhancement of rent
"under the Act" so as to oust applicability of the Rent Control Act. (Para 6)

Practice - Bulky Compilations - Repetitive and Misleading Citations -- Counsel for petitioner
supplied seven compilations containing approximately hundred judgments, with same judgment cited twice
under different equivalent citations creating false impression of separate rulings -- Held: Such practice makes
record unnecessarily bulky, delays adjudication and amounts to an attempt either to mislead the Court or to
make record difficult to decide -- Court confined itself only to judgments relevant to controversy. (Para 7)
Writ Petition Dismissed -- Release application allowed by Appellate Court upheld -- Petitioner-tenant directed
to hand over vacant peaceful possession of disputed godown within thirty days, subject to payment of up-todate rent as fixed by interim order till date of vacation, failing which decree to become executable forthwith.

Case Law Discussed
1. Saroj Kumari (deceased) and others vs. Suresh Chand and others, Writ Petition No. 8017 of 2003, decided
20.12.2012
2. Ram Gulam Gupta vs. Additional District Judge, Kanpur and others, 1990 (1) ARC 565
3. Ramesh Kumar vs. Kesho Ram, 1992 Suppl. (2) SCC 623
4. Kamleshwar Prasad vs. Pradumanju Agarwal, 1997 (4) SCC 413
5. Gaya Prasad vs. Pradeep Srivastava, 2001 (1) ARC 352 (SC)
6. Ansuyaben Kantilal Bhatt vs. Rashiklal Manilal Shah, 1997 5 SCC 457
7. Ramkubai (Smt.) Deceased By Lrs. And others vs. Hajarimal Dhokalchand Chandak, 1999 (6) SCC 540
8. Pratap Rai Tanwani and another vs. Uttam Chand and another, 2004 (8) SCC 490

(Delivered by Hon'ble Mrs. Sunita Agarwal, J.)

1. Before going to the matter of merits of the case in view of the arguments raised by the
learned counsel for the parties, this Court is constrained to put on record that Sri Ajit Kumar Singh,
learned counsel for the petitioner was heard at length. He had supplied seven compilations from
compilation No. 1 to Compilation No. 7 containing synopsis of the case laws in addition to a
written submissions in support of the oral submissions made by him in the Court. This has resulted
in making the record too bulky. Each compilation contains number of judgements on each point.
For example, in compilation no.2, on the question of consideration of subsequent events, he had
referred to ten judgements of this Court and the Supreme Court. In fact one judgement of this Court
in the case of Saroj Kumari (deceased) and others Vs. Suresh Chand and others in Writ
Petition no.8017 of 2003 passed by Hon'ble Mr. Justice Sudhir Agarwal on 20.12.2012 has been
referred at two places with two different equivalent citations and by mentioning different paragraph
of the same judgement giving an impression that these are two different judgements on the same
point. The Court is constrained to record that this approach of the counsel is nothing but an effort
either to mislead the Court or to make the record so bulky as to make it difficult for the Court to
892 INDIAN LAW REPORTS ALLAHABAD SERIES

decide the matter. Similarly on the point of "duties of Appellate Court to discuss the reasons
assigned by the Trial Court while upsetting its finding and to consider the evidence of the parties",
nineteen judgements of this Court and the Supreme Court have been given in compilation no.4. In
compilation no.1, there are fourteen judgements on four different points and in compilation no.7
there are twenty seven judgements on different points. There are two other compilations i.e.
compilation nos.3 and 6 which also contain four judgements, thus approximately hundred
judgements have been cited by learned counsel for the petitioner in seven compilations supplied by
him before oral argument in the matter had started.

2. After the arguments were over on 05.01.2016, he again passed on a written submission
in support of his oral submission citing a number of judgements in various paragraph of the written
submissions.

3. This Court may note that the bulky records took lot of precious time of the Court to go
through the case laws cited by the counsel and this has caused delay in delivery of the judgement.

4. This Court may further record that after going through the entire pleadings in the writ
petition and also the supporting material supplied by the learned counsel for the petitioner in the
nature of compilation nos.1 to 7 and written submission dated 05.01.2016 in support of oral
submission, the Court would deal with each point argued by the learned counsel for the petitioner
but will only refer to those judgements which it think are relevant to deal with the controversy, so
as not to make the judgement too long and cumbersome.

5. This writ petition is directed against the judgement and order dated 26.05.2007 passed by
Special Judge (E.C. Act), Bareilly in Rent Control Appeal 6 of 2004 (Nand Kishore Vs. Rajesh
Prasad). The brief facts of the case relevant to decide the controversy are:-

6. The release application under section 21(1)(a) of U.P. Act No. 13 of 1972 was filed by
three brothers namely Nand Kishore, Sundar Lal, Jagdish Saran all sons of Tara Chand residents of
Maarwariganj, Bareilly, for release of a godown situated in Marwariganj, Bareilly on the ground of
their personal need. The need set up was for three sons of applicant no.1, 2 and 3 namely Sri
Vishnu Kumar, Narendra Kumar, Dheeraj Kumar. It was categorically stated in the release
application that sons of the applicants had completed their education but they could not settle in
their carreer and they want to establish a new venture for the sale of Empty Tin Cans. As a larger
area was required for storage of tin cans, the godown in question was needed. It was stated that for
running the business proposed by three younger members of the joint family, only an office space is
available with the landlords.

7. The godown in question exists in a house user of which was of mixed nature. At the first
floor, the applicants were residing and at the ground floor a large portion was in the tenancy of the
petitioner. It was further stated that the petitioner tenant already possessed a big shop at one side of
the godown and the godown in question was not required by him.
8 All. Rajendra Prasad Vs Narendra Mittal & Ors.
893
8. The release application was contested on the ground that it was defective for non
impleadment of the necessary party. The petitioner Rajendra Prasad had wrongly been impleaded as
tenant whereas the tenancy was in the name of M/s Satish Tea Company. The application dated
10.10.1995 moved by the petitioner raising issue of maintainability of the release application was
rejected vide order dated 14.07.1998 passed by the Prescribed Authority.

9. In support of the release application, the affidavits of Nand Kishore, applicant no.1,
Vishnu Mittal son of Sundar Lal, Narendra Mittal son of Nand Kishore, and Dheeraj Kumar son of
Jagdish Saran were filed. Vishnu Mittal son of Sundar Lal categorically stated in the affidavit filed
on 08.12.1999 that he needed the disputed godown to establish him in an independent business as
there was no other place available with him. Shri Dheeraj Mittal also averred in his affidavit that he
needed the disputed accommodation for doing business of sale of empty tin Can.

10. In the counter affidavit filed by the tenant Rajendra Prasad, a stand was taken that the
release application was malafide, it could not be maintained as M/s Satish Tea Company was the
tenant. As the tenant refused to accept the illegal demand of the landlords for enhancement of rent
and, therefore, they filed the release application based on a concocted story. It was further stated
that two Daal Mills were being run by the applicants, one Mill manufacturing Bhoora, Kulia was
also being run in Bareilly. This apart two other firms namely M/s Ram Swaroop Tara Chand
Marwariganj, Bareilly and M/s Tara Chand Sundar Lal, Marwariganj, Bareilly were owned by
different set of partners being the members of a joint family. The building in question is residential
in nature and no commercial activity could be permitted. The applicant's sons were not sitting idle
rather they were already engaged in two firms mentioned above. There are other accommodation in
possession of the large joint family of the applicants wherein their sons could be accommodated.
He also raised a doubt on the willingness shown by the applicants to start a business of sale and
purchase of empty tins that too near a residential portion of the family in the building. In the crux,
his submission was that the applicants landlord were men of means, they had sufficient sources and
place to establish their sons who may also join the joint family business, they had voluminous
wealth and none of them were unemployed.

11. In the written statement filed on 13.09.1999 it was stated by the tenant that the landlord
had purchased a plot of measuring 800 square yards in Deshmeshnagar, Mohalla Madhobari,
Bareilly within the limits of Nagar Nigam, Bareilly. They had recently constructed a shop and
godown while the remaining land was lying vacant at the disposal of the landlords. Had the
landlords needed the space for business they would not have left the said plot vacant.

12. In replication, it was stated by the applicants-landlords that the property/plot mentioned
in paragraph no.9-A of the written statement filed on 13.09.1999 was a property which was
purchased by Tara Chand, the applicant's father in the year 1959. There were five co-owners of this
property comprising of four sons and five daughters of Tara Chand. In one portion of this property,
Smt. Kamlesh Kumari wife of Sri Sushil Kumar had constructed her residential house and was
using another portion being a shop to meet her daily need. It was also stated that the said property
was situated at the distance of approximately 1200 meters from the disputed property and
894 INDIAN LAW REPORTS ALLAHABAD SERIES

moreover, the said area was predominantly residential in nature. It was further stated that the open
land could not be used for godown purpose.

13. The petitioner in another affidavit filed on 06.11.2003 reiterated the fact of alternative
land of 800 square yard in Deshmeshnagar being in possession of the landlord. The petitioner then
moved an application on 14.08.2000 with the prayer to appoint an Amin Commissioner to inspect
the properties namely Daal mills, the plot at Deshmeshnagar, the building no. 16, Marwariganj,
Bareilly and building No.18, Marwariganj, Bareilly in possession of the landlords and tenants to
ascertain the vacant area and the tenanted portion. This application was rejected on 02.09.2000 on
the ground that it was moved with a view to delay the disposal of the release matters sufficient
evidences were already on record and in view of the affidavits filed by the parties, matter can be
decided.

14. The records further indicates that several applications one after the other were moved
by the petitioner on different grounds which were finally rejected and the dates 25.03.2004 and
31.03.2004 were fixed for final argument.

15. The Prescribed authority vide judgement and order dated 16.04.2004 rejected the
release application with the reasoning that the applicant's sons namely Dheeraj Kumar, Vishnu
Kumar and Narendra Kumar whose need was set up in the release application were found engaged
in the joint family business run by the partnership firms namely M/s Tara Chand Sundar Lal. It was
also recorded that the applicant's family was a joint family and all in the family were engaged in
vast business ventures owned by the family, therefore, the need set up for independent business of
three sons was not genuine. On comparative hardship, the affidavit of applicants paper no.76 was
considered and rejected on the ground that no documentary evidence was produced in support
thereof. The disputed godown was being used by the tenant for his tea business.

16. In appeal, the Court below after consideration of the pleading of the parties and the
material on record found that indisputably the applicant's family was a joint family and they had
joint business. The contention of the tenant that the need of the members of the joint family had to
be determined looking to the requirement of the joint family and the joint family business which
they were already carrying on was also noted. It was discussed that in the firm namely M/s Ram
Swaroop Tara Chand, three appellants namely Nand Kishore, Sundar Lal, Jagdish Saran were
partners. In another firm M/s Tara Chand Sunder Lal, Smt. Tara Mani wife of Sundar Lal, Smt.
Siromati wife of Nand Kishore and Vivek Kumar son of Nand Kishore were partners. There was
one residential accommodation namely house no. 23 Marwariganj, Bareilly. The disputed godown
is situated in house no.16, Marwariganj, Bareilly. The 1⁄4 portion of the said house No. 16 was in the
share of one brother Ram Gopal who had let out it to one Mangli Ram. The portion which was
earlier occupied as PCF godown came in possession of the appellants after release and was being
used for residential purposes. At the first floor of the said house no.16 Marwariganj, the family of
appellant no.2 was residing and the remaining portion was being used for storage of Daal etc.
Fourth property at Dasmeshnagar, Bareilly was an open piece of land which was owned by seven
co-sharers and in a portion whereof, residential house had been constructed by one of the co-sharer.
8 All. Rajendra Prasad Vs Narendra Mittal & Ors.
895
Fifth property at 17 Madhobari, Bareilly was an open land of 300 Square meter purchased on
28.06.2001 there existed only gates and a dilapidated building. Sixth property was a shop at
Shyamganj which was taken on rent by the appellants for keeping the raw material and
manufactured goods of the firm M/s Tara Chand Sundar Lal. There was no accommodation suitable
for the business proposed by the landlord.

17. The lower appellate Court after having discussed each property in detail came to the
conclusion that looking to the large number of members of the family and the fact that three adult
members of the family want to establish themselves in an independent business and that they filed
their affidavits paper no.77-A, 78-A, 79-A, the release application could not have been rejected by
the Prescribed Authority on the ground that the applicants sons were engaged in the joint family
business. It was also recorded that none of the applicants/sons were partner in the two firms named
above. Merely because they were involved/engaged in the family business as a stop gap
arrangement their need cannot but be bonafide.

18. It was also recorded that the properties which were in possession of the landlord were
not suitable for the business of Tin Can proposed by them. Three adult members of the family were
competent to start their business.

19. On comparative hardship, it was recorded that the disputed accommodation was a
godown. Placing reliance upon the judgment of this Court in Ram Gulam Gupta Vs. Additional
District Judge, Kanpur and others1, it was held by the lower Appellate Court that the godown
can be shifted easily at any other place as no goodwill was attached to the building/place. It was
also recorded that looking to the pleadings of the parties the tenant would not suffer any hardship in
case, he was asked to leave the godown.

20. Having discussed the release application on both points of bonafide need and
comparative hardship it was held that the need set up by the landlords in the release application was
not only genuine but pressing. The release application was wrongly rejected by the Prescribed
Authority and was liable to be allowed.

21. Challenging the release order passed by the lower appellate Court, the submissions of
learned counsel for the petitioner are as under:-

1. The release application has become infructuous as bonafide need set up by the
landlord had eclipsed on account of subsequent events taken place during the pendency of the
application. The original applicants had died and their sons whose need was set up have engaged
themselves in joint family business. Their need to start a new venture of sale of empty tin now does
not exist.

2. Other accommodations are available with the landlord details of which have
been given in different paragraphs of the writ petition as well as supplementary affidavit filed
before this Court. These alternative premises in possession of the landlords are not denied.
896 INDIAN LAW REPORTS ALLAHABAD SERIES

3. M/s Satish Tea Company and wife of the petitioner are the tenants. The
petitioner has wrongly been impleaded as tenant.

4. The tenanted accommodation namely the godown was initially let out at the rent
of Rs.4000 per annum but now the rent has been enhanced by this Court to Rs.10,000/- per month
i.e. one lac twenty thousand per annum. Thus, on account of said enhancement, the premises has
gone out of the purview of the Rent Control Act (U.P. Act No.13 of 1972).

5. The need set up in the release application was for Narendra Kumar son of
application No.1, Vishnu Kumar son of applicant no.2 and Dheeraj Kumar son of applicant no.3,
their need has vanished on account of subsequent event of the death of the applicants/landlords.

6. By means of the supplementary affidavit dated 18.01.2015, the petitioner
submitted that a partition has been arrived between the joint family members with regard to the
joint family business and the properties owned by joint Hindu family. As a result of the said
partition, disputed property namely, the godown situated in house no.18, Marwariganj, Bareilly has
fallen in the share of three sons of late Sundar lal namely Vivek Kumar, Vishnu Mittal and Mukesh
Mittal. Vivek Kumar has started a firm in October, 2014 in the nomenclature of M/s Sunder Lal
Vivek Kumar and running the business of the firm. He has also opened an office and godown in the
same building namely house no.16, Marwariganj, Bareilly adjacent to the property in question. He
also opened a godown in two big rooms and is running his office in one room relating to Daal mill
business in the same building. On the said basis, it is stated that the need of landlords set up in the
release application has vanished.

7. Sri Vishnu Kumar has never contested the proceeding before this Court, the
reply namely the counter affidavit to the writ petition has been filed by Narendra Mittal only on
behalf of the respondent no.1 to 4.

8. The landlords were under obligation to disclose the accommodation in their
possession but they had intentionally not done so and this fact would lead to an assumption of nonexistence of bonafide need of the landlords.

9. The question of hardship was to be considered strictly in terms of the provision
of section 21 (1) (a) read with Rule 16 of U.P. Act no.13 of 1972 which has not been considered by
the Appellate Authority, this fact itself vitiates the order passed by it.

10. The Rent Control Legislation is for the benefit of the tenant. It is for the
landlord to establish his bonafide need which must be real and compelling. If not actual and
genuine, the release application needs to be rejected, being a mere desire. Subsequent need cannot
be considered.

11. The Appellate Court without reversing the findings of the trial Court has
allowed the release application ignoring the evidence of the petitioner.
8 All. Rajendra Prasad Vs Narendra Mittal & Ors.
897
22. At the cost of repetition it is noted that in support of these submissions, compilation
no.1 to compilation no. 7 have been supplied by the learned counsel for the petitioner wherein more
than 100 rulings have been referred on the points noted above. Further in the written submission
passed on in support of the oral submission made by the learned counsel for the petitioner more
than twenty case laws have been mentioned. It is not possible for the court to deal with each
judgement on the law point placed by the learned counsel. And further this Court does not find it
relevant to discuss each and every case law relied upon by the learned counsel with a view not to
burden this judgement. It may also be noteworthy that some of the judgment are not relevant for the
facts of the present case.

23. Now dealing with the arguments of learned counsel for the petitioner.

24. First submission of learned counsel for the petitioner is regarding applicability of the
Act on account of enhancement of rent by this Court, this submission is misconceived in as much as
the rent has been enhanced by this Court under an interim order dated 19.07.2007 as a condition to
stay the eviction of the petitioner-tenant. The tenant namely the petitioner at the time of hearing on
the stay application had offered Rs.10,000/- per month as compensation for the use and occupation
of the godown from the month of July, 2007. The petitioner has already been evicted by the
Appellate Court, however, the condition put in the interim order to save the petitioner from eviction
during the pendency of the writ petition would not mean that the rent of the premises has been
enhanced under the provisions of the Act which would result in the premises to go out of the
purview of the Rent Control Act' 1972.

25. The second submission is with reference to the events occurred during the pendency of
the present petition.

26. The subsequent events which have been brought to the knowledge of the Court is that
out of the three applicants/landlords, Sri Nand Kishore, and Sunder lal had expired. They are
succeeded by their sons namely Narendra Mittal, Vivek Kumar, Vishnu Mittal, Mukesh Mittal and
Smt. Taramani (wife) and daughter Smt. Saroj Agarwal. It is stated that the accommodation in
question was required by Vishnu Mittal son of late Shri Sunder Lal, but no counter affidavit has
been filed by him till date. The petitioner has brought the subsequent events before this Court by
means of supplementary affidavits. In the second supplementary affidavit dated 18.01.2015, it has
been stated in paragraph no.4 that the property in question has been settled with Sri Vivek Kumar,
Sri Visnhu Mittal, Vishnu Kumar and Sri Mukesh Mittal and thus the counter affidavit of Sri
Narendra Mittal who has no concern with the property in question cannot be treated to dispute the
averments in the writ petition. Narendra Mittal who has nothing to do with the property in question
cannot continue to oppose the writ petition on behalf of all the landlords/respondents. Under section
58 of the Evidence Act, nothing remains to be adjudicated because the factum of vanishing the need
of the landlord is already admitted, in reply to the supplementary affidavits filed by the respondent.
898 INDIAN LAW REPORTS ALLAHABAD SERIES

27. The only affidavit filed by Narendra Mittal is neither on behalf of Sundar Lal nor for
Jagish Saran nor for Vishnu Mittal and thus is not on behalf of heirs of Sunder Lal. This Court has
no option but to dismiss the release application as having become infructuous.

28. The applicants are worthy people having movable and immovable property in
abundance, they own highly lucrative business, there is a big building at Marwariganj, Bareilly in
which the business under the name and style of M/s Tara Chand Ram Swarup is being run. In
another premises at Deshmeshnagar in the city of Bareilly, lot of space is available. One shop at
Bazar Shyamganj, Bareilly is also in possession of the landlord. Another mill namely Daal
manufacturing mill is being run by Vishnu Kumar son of Sundar lal.

29. Thus a false story has been set up by the applicants/landlords for unemployment of their
sons. The properties, details of which have been given hereinabove are admitted to the landlords.
The Prescribed authority after consideration of these materials rightly came to the conclusion that
looking to the large joint family business, the need to set up an independent business for sons of the
applicants/landlords cannot be accepted. These findings have not been reversed by the Appellate
Court. The applicants/landlords did not disclose their business premises in the release application
and as such it is a clear case of concealment of material facts. The need, therefore, cannot be termed
as bonafide.

30. Considering these submission of learned counsel for the petitioner in the light of the
evidence on record, it is relevant to note that the Appellate court has discussed in detail each and
every property/business premises owned by the landlords and the business which were being run by
them. There is no dispute about the fact that the business which are being run in the family are joint
family business. On account of death of their father, the sons whose need has been set up started
looking/managing their father's business and are not unemployed as on date. This fact is of no
relevance as at the time of filing of the release application they were not engaged in the business or
were employed.

31. The settled law is that the crucial date for looking to the need of the landlord is the date
of filing of the petition for release. The normal rule is that the rights and obligation of the parties
are to be determined as they were when the lis commenced. The only exception is that the Court is
not precluded from moulding relief(s) appropriately in consideration of the subsequent events
provided such events had an impact on those rights and obligations. Subsequent event may change
but only if they are of such nature and dimension so as to completely vanish the need of the
landlord, it can be said that the need of the applicant/landlords has eclipsed.

32. In Ramesh Kumar Vs. Kesho Ram2, the then Chief Justice M.N. Venkatachalia,
speaking for the bench held that where the subsequent events of fact or law which have a material
bearing on the entitlement of the parties to relief or on aspect 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.
8 All. Rajendra Prasad Vs Narendra Mittal & Ors.
899
33. In Kamleshwar Prasad Vs. Pradumanju Agarwal3, the Apex Court has held that
even the subsequent events of death of the landlord who wanted to start a business in the tenanted
premises is not sufficient to dislodge the bonafide need established by him earlier as the business in
question can be carried on by his widow or any other son. It has been held that the subsequent
events to over shadow the genuineness of the need must be of such nature and of such a dimension
that the need propounded by the petitioning party should have been completely eclipsed by such
subsequent events.

34. In paragraph no. 15 of Gaya Prasad Vs. Pradeep Srivastava4, the Court has
expressed its concern over long drawn judicial process which create an impact on the rights of the
litigating parties. Paragraph no.16 of the said judgement are quoted below;-

16. Of course a two-Judge Bench (K. Ramaswamy and D.P. Wadhwa, JJ) pointed
out in another case Ansuyaben Kantilal Bhatt vs. Rashiklal Manilal Shah [1997 5 SCC 457] that
the pendency of a lis for a record period of thirty one years has transformed a middle aged
landlord to advanced stage of gerenry and at that stage he could not start a new business venture.
After lamenting over the system which caused a whopping delay of thirty-one years the Bench made
two directions. The first was that the son of the landlord who by that time had four and a half years
more to go for reaching the superannuation age could consider starting the business in the
tenanted premises after retirement. The second was that in the meanwhile the rent for the building
would stand enhanced from Rs.101/- to Rs.3500/- per month.

35. In Ramkubai (Smt) Deceased By Lrs. And others Vs. Hajarimal Dhokalchand
Chandak,5, it was noticed by the Apex Court that the landlord was unemployed on the date of
filing of the suit but he could not be expected to idle away the time by remaining unemployed till
the case is finally decided. It took about 25 years to reach the case at the final stage. Therefore, the
contractor work which was taken by the landlord, in the meanwhile, will not militate against the
need set up by him for carrying on the business of Kirana.

36. In Pratap Rai Tanwani and another Vs. Uttam Chand and another,6. The Apex
Court while considering the contention of the appellant that the landlord's son had taken a
temporary employment with Visa for a limited period and went abroad observed that while
considering the bonafide need of the landlord the crucial date is the date of the petition. It has
observed in paragarph no.7 and 10 as quoted below;-

7. It is a stark reality that the longer is the life of the litigation the more would be
the number of developments sprouting up during the long interregnum. If a young entrepreneur
decides to launch a new enterprise and on that ground he or his father seeks eviction of a tenant
from the building, the proposed enterprise would not get faded out by subsequent developments
during the traditional lengthy longevity of the litigation. His need may get dusted, patina might
stick on its surface, nonetheless the need would remain intact. All that is needed is to erase the
patina and see the gloss. It is pernicious, and we may say, unjust to shut the door before an
applicant just on the eve of his reaching the finale after passing through all the previous levels of
900 INDIAN LAW REPORTS ALLAHABAD SERIES

the litigation merely on the ground that certain developments occurred pendente lite, because the
opposite party succeeded in prolonging the matter for such unduly long period.

10. The judicial tardiness, for which unfortunately our system has acquired
notoriety, causes the lis to creep through the line for long long years from the start to the ultimate
termini, is a malady afflicting the system. During this long interval many many events are bound to
take place which might happen in relation to the parties as well as the subject- matter of the lis. If
the cause of action is to be submerged in such subsequent events on account of the malady of the
system it shatters the confidence of the litigant, despite the impairment already caused.

37. Considering the law in this regard in the background of the factual matrix of the instant
case, it is evident that three sons of the applicants/landlords who were unemployed on the date of
release application could not engage themselves in an independent business. Because of death of
their father and that there was no other business, they joined the joint family business. Their wish to
start an independent business remained a dream. In the release application, specific need of three
sons of the applicants/landlords namely Vishnu Kumar @ Vishnu Mittal son of Sundar Lal,
Narendra Kumar, son of Nand Kishore and Dheeraj Kumar son of Jagdish Saran was set up. These
three sons of the applicants-landlords namely Vishnu Mittal, Narendra Kumar and Dheeraj Mittal
had filed their own affidavits before the Prescribed Authority in the year 1999 to state that they
needed the shop in question to start an independent business. Sri Narendra Kumar, one of the son of
the applicant/landlord filed his affidavit in support of the need set up by the landlords. It cannot be
said that since others did not file their independent affidavits before this Court in the present
petition, their need had eclipsed.

37A. Moreover it is settled law that every adult member of the family has a right to start his
own independent business. Even for expansion of the family business, the premises can be required.
The partition of the joint family property,if any, took place during interregnum, long period of
litigation, would again does not frustrate the need of the landlords because there are many members
of the family including the respondents herein who can start their business in the disputed
accommodation. Even Vishnu Kumar who is stated to have got the disputed property as a result of
partition in the joint family is not precluded from starting a new venture. Thus it cannot be accepted
that since the applicants/landlords are no more and their sons are carrying on the joint family
business for the reason that the godown in question could not be released, the need setup in the
release application to start a new venture stood satisfied or eclipsed. The contention of the learned
counsel for the petitioner in this regard are thoroughly misconceived.

38. As far as the contention of the petitioner regarding availability of other
accommodations to the landlord and non-disclosure of the said fact in the release application, it is
sufficient to note that non disclosure of all the business premises and all the residential
accommodation in occupation of the applicants/landlords i.e. members of the joint family could not
be a factor relevant to reflect upon their bonafide need for the reason that according to the
applicants/landlords these premises are not of such nature which would have satisfied their need
and further the tenant has not been able to establish that these premises can be utilized by the
8 All. Rajendra Prasad Vs Narendra Mittal & Ors.
901
landlords for the business proposed in the release application. The Appellate Court below has
considered in detail each and every accommodations/business premises in possession of the
landlords and recorded a categorical finding of fact that they are not sufficient to satisfy the need of
the landlords set up in the release application.

39. Now the contention of the learned counsel for the petitioner that the appellate Court has
not followed the procedure prescribed under law while deciding the appeal in not reversing the
findings of the trial Court and the evidence on record has been ignored, its order, therefore, is
illegal. To deal with the submission, it is important to note that the proceedings before the
Appellate Authority are in the nature of continuation of the release proceeding. The entire evidence
on record was examined by the appellate Court and after discussion on each evidence it came to the
conclusion that the findings recorded by the trial Court could not be sustained. On comparative
hardship a categorical finding has been recorded to the effect that since the disputed
accommodation is a godown, it can be shifted elsewhere by the tenant as no good will is attached to
the place as in case of retail business. Moreover, the tenant possess ample accommodation in which
he can carve out a separate space for the godown. The Comparative hardship was, therefore, tilted
in favour of the landlords.

40. It may also be noted that the learned counsel for the petitioner took much time of the
Court to place several supplementary affidavits to state that the income from salary and interest
from the joint family business in which the applicant's sons are now partner and assets of the
landlords are sufficient for their need. Attention of the Court was invited to the income tax returns
and other related documents.

41. In this regard it is relevant to note that this Court is not going to review the income of
the parties and to examine as to whether their earning is increased during the course of long
litigation to hold that their need for starting a new venture is satisfied or not. The only bone of
contention of the applicants/landlords was that their sons wanted to start an independent business a
new venture.