# HASMAT RAJ & ANR v. RAGHUNATH PRASAD

- **Citation:** [1981] 3 S.C.R. 605
- **Court:** Supreme Court of India
- **Decided:** 1981-04-28
- **Case number:** Civil Appeal No. 1108 of 1976
- **Bench:** D.A. Desai, R.S. Pathak, E.S. Venkataramiah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/hasmat-raj-anr-v-raghunath-prasad-8097
- **Pages:** 22

## Headnote

Madhya Pradesh Accommodation Control Act, 1961-Scope of section 12( I)
(f)-Bonafide requirement under section 12(1}(f}-Landlord filing two eviction
suits and acquiring possession of a major portion of the suit premises through an
eviction order passed in one of them-Whether this acquisition amounts to the
landlord "has a reasonably suitable non-residential accommodation of his own
in his occupation in the city or town concerned" within the meaning of section
12(I)(f) of the Act-Noticing of such event subsequent to the passing of the
decreefor eviction in the other eviction suit, whether a must by the CourtP.ropriety of refusal of leave to amend the written statement under order VT rule 17
Civil Procedure Code by the High Court.
The respondent-landlord filed two eviction suits for recovery of possession
of a non-residential building which were in occupation of a finn Goraldas Parmanand and the appellant-tenant.
The portion occupied by.the appellant including
the frontage was 7 'x221. In the view of the fact that the landlord obtained eviction
order against the firm Goraldas Parmanand on the ground th at the building was
required for the purPose of reconstruction and repairs and also for bona fide
requirement, in the later eviction suit filed a~ainst the appellant, in para 4 of the
plaint the landlord stated that he was in possession of a major portion of the
non-residential building which he obtained from the firm M/s. Goraldas Parmanand, The appellant contested the eviction suit filed against him on the ground,
(a) that the premises was not in dilapidated condition and did not, therefore,
~ need reconstruction and repairs and (b) that the landlord in view of his own
admission in the plaint at para 4 has a reasonable suitable non-residential
accommodation of his own and therefore cannot claim his eviction under section
(12)(1)(f) of the Madhya Pradesh Accommodation Control Act, 1961.
The trial court rejected the tenant's pleas and passed an eviction order. In
appeal the first appellate court, while confirming the finding of the trial court that
the building was in a dilapidated condition and required re-construction and
repairs, held that even though the landlord obtained a decree against the firm
Goraldas Parmanand, he had not got actual possession, as the litigation was still
pending and, therefore, the plaintiff's requirements of the whole building was
established.
In the second appeal before the High' Court, an application under Order
VI, Rule 17, Code of Civil Procedure, was made praying for an amendment to
the written statement alleging that the firm Goraldas Parmanand has vacated the
entire portion of the premises in his possession and the plaintiff-landlord has
obtained actual possession of a major portion of the building and if this aspect
was taken into consideration the plaintiff-landlord would not be entitled to a
decree for eviction under section 12(1 )(f) of the Act. The High Court rejected
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SUPREME COURT REPORTS
[1981] 3 S,C.R.
the application observing that the adjoining portion occupied by-firm Goraldas
Parmanand was vacated by the firm as for back as in the year 1972 and, therefore, the application for amendment filed 3·1/2 years after ·the filing of the [second
appeal must be rejected. Further it was of the view that the definition of
"tenant" in the· Madhya Pradesh Act would not enable a tenant, though in
possession but against whom a decree or order for eviction has been made, to
invite the court to take notice of events subsequent to the passing of the decree
for eviction by the trial court. The High Court, accordingly confirmed the
decree for eviction. hence, the appeal by the tenant after obtaining special leave
of the Court.
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Allowing the appeal and remanding the matter to the first appellate court
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with directions, the Court
HELD : I. Before an allegation of fact to obtain the relief required is
permitted to be proved, the law of pleadings require that

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605
HASMAT RAJ & ANR.
v.
RAGHUNATH PRASAD
April 28, 1981
[D.A. DESAI, R.S. PATHAK AND E.S. VENKATARAMIAH, JJ.J
Madhya Pradesh Accommodation Control Act, 1961-Scope of section 12( I)
(f)-Bonafide requirement under section 12(1}(f}-Landlord filing two eviction
suits and acquiring possession of a major portion of the suit premises through an
eviction order passed in one of them-Whether this acquisition amounts to the
landlord "has a reasonably suitable non-residential accommodation of his own
in his occupation in the city or town concerned" within the meaning of section
12(I)(f) of the Act-Noticing of such event subsequent to the passing of the
decreefor eviction in the other eviction suit, whether a must by the CourtP.ropriety of refusal of leave to amend the written statement under order VT rule 17
Civil Procedure Code by the High Court.
The respondent-landlord filed two eviction suits for recovery of possession
of a non-residential building which were in occupation of a finn Goraldas Parmanand and the appellant-tenant.
The portion occupied by.the appellant including
the frontage was 7 'x221. In the view of the fact that the landlord obtained eviction
order against the firm Goraldas Parmanand on the ground th at the building was
required for the purPose of reconstruction and repairs and also for bona fide
requirement, in the later eviction suit filed a~ainst the appellant, in para 4 of the
plaint the landlord stated that he was in possession of a major portion of the
non-residential building which he obtained from the firm M/s. Goraldas Parmanand, The appellant contested the eviction suit filed against him on the ground,
(a) that the premises was not in dilapidated condition and did not, therefore,
~ need reconstruction and repairs and (b) that the landlord in view of his own
admission in the plaint at para 4 has a reasonable suitable non-residential
accommodation of his own and therefore cannot claim his eviction under section
(12)(1)(f) of the Madhya Pradesh Accommodation Control Act, 1961.
The trial court rejected the tenant's pleas and passed an eviction order. In
appeal the first appellate court, while confirming the finding of the trial court that
the building was in a dilapidated condition and required re-construction and
repairs, held that even though the landlord obtained a decree against the firm
Goraldas Parmanand, he had not got actual possession, as the litigation was still
pending and, therefore, the plaintiff's requirements of the whole building was
established.
In the second appeal before the High' Court, an application under Order
VI, Rule 17, Code of Civil Procedure, was made praying for an amendment to
the written statement alleging that the firm Goraldas Parmanand has vacated the
entire portion of the premises in his possession and the plaintiff-landlord has
obtained actual possession of a major portion of the building and if this aspect
was taken into consideration the plaintiff-landlord would not be entitled to a
decree for eviction under section 12(1 )(f) of the Act. The High Court rejected
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SUPREME COURT REPORTS
[1981] 3 S,C.R.
the application observing that the adjoining portion occupied by-firm Goraldas
Parmanand was vacated by the firm as for back as in the year 1972 and, therefore, the application for amendment filed 3·1/2 years after ·the filing of the [second
appeal must be rejected. Further it was of the view that the definition of
"tenant" in the· Madhya Pradesh Act would not enable a tenant, though in
possession but against whom a decree or order for eviction has been made, to
invite the court to take notice of events subsequent to the passing of the decree
for eviction by the trial court. The High Court, accordingly confirmed the
decree for eviction. hence, the appeal by the tenant after obtaining special leave
of the Court.
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Allowing the appeal and remanding the matter to the first appellate court
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with directions, the Court
HELD : I. Before an allegation of fact to obtain the relief required is
permitted to be proved, the law of pleadings require that such facts have to be
alleged and must be put in issue. Any amount of proof offered without pleadings
is generally of no relevance. In order to be able to seek eviction of a tenant
under section 12(1l(f) of the Madhya Pradesh Accommoaation Control Act, 1961,
the landlord has to allege and establish (i) that he bona fide requires the accommodation let to the tenant for non-residential purposes for the purpose of continuing or starting his business and (ii) that he has no other reasonably suitable
non-residential accommodation of his own in his occupation in the city or the
town concerned. The burden to establish both the requirements of section
12(1)(f) is squarely on the landlord. [610 H, 611 A, 612 D and F]
2. The application under Order VI Rule 17, Civil Procedure Code, in view
of the averments in the written statement is wholly superfluous. However, in
view of the pleadings in the instant case, it must be granted because "the burden
of proof of establishing that the landlord was not in possession of a reasonably
suitable accommodation in the same town was on the plaintiff" it was wrongly
rejected by the High Court on untenable ground that the defendant-appellant
was guilty of delay and !aches ignoring incontrovertible admitted position which
would non-suit the respondent-plaintiff. [613 E-G]
3:1. The definition of expression "tenant" in the Madhya Pradesh
Accommodation Control Act, 1961 excludes from its operation a person in
possession against whom any order or decree for eviction has been made.
The decree means the decree of the final court. This is so because once an
appeal against decree or order of eviction is preferred, the appeal is a continuation of suit. (615 C, 616 BJ
3:2. When an action is brought by the landlord under Rent Restriction Act
for eviction on the ground of personal requirement, his need must not only be
shown to exist at the date of the suit, but must exist on the date of appellate
decree, or the date when a higher court deals with the matter. During the prog·
ress and passage of proceeding from court to court if subsequent events occur
which if noticed would non-suit the plaintiff. the court has to examine and
evaluate the same and mould the decree accordingly. The tenant is entitled to
show that the need or requirement no more exists by pointing out such subsequent
events, to the court including the appellate court. Otherwise the landlord would
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HASMAT RAJ V. RAGHUNATH
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derive an unfair advantage, and it would be against the spirit -or intendment of
Rent Restriction Act which was enacted to fetter the unfettered right of re-entry,
In such a situation it would be incorrect to say that as decree or order for
eviction is passed against the tenant he cannot invite the court to take into
consideration subsequent events. But the tenant can be precluded from so.
contending when decree or order for eviction has become final. [616 C-G]
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Pasupuleti Venkateswarlu v. The Motor and. General Traders, [1975] 3
B
S.C.R. 958, followed.
Taramal v. Laxman Sewak and Ors., 1971 Madhya Pradesh Law Journal
p. 888, overruled.
3:3. In the instant case ; (i) relying on the admission of the plaintiff
himself that be bas in his possession a shop admeasuring 18 1x90/ plus 7'x68'
forming part of the same building and his failure to state that the space with
18' frontage is neither suitable nor reasonably suitable nor sufficient for starting
his business as Chemist and Druggist, the plaintiff's suit for eviction on the
ground mentioned in section 12(1 )(f) of the Madhya Pradesh Act must fail ;
(ii) the finding of the courts below that the respondent requires possession of
the whole of the building including the one occupied by the tenant for starting
his business as Chemist and Druggist as also for bis residence is vitiated
beyond repair. The observation of the High Court that the remaining portion
of the premises would be used by the landlord for his residence and even
though the portion utilised for the purpose of running the business would be
smaller compared to the one to be utilised for the residence it would still not
be violative of sub-section (7) of section 12 because such a composite user
would not radically change the purpose for which the accommodation was let,
is contrary to records and pleadings. (618 B-C, D-F, 619 B-C]
4:1. In order to obtain possession under section 12(1)(h) of the Madhya
Pradesh Act the landlord has to establish his bona fide requirement of the
accommodation in possession of the tenant for the purpose of building or rebuilding or making thereto any substantial additions or alterations and must
further show that such building or re-building or alterations cannot be carried
out without the accommodation being vacated. If the landlord succeeds in his
prayer for possession on the ground mentioned in section 12(l)(h), it would. be
necessary for the court to give appropriate directions under section 18 of the
Act.
[619 F-G, 621 BC]
4:2. Here, as the matter has not been examined from this angle by any
court, even though the litigation is pending for a long time, the case requires
to be remanded to the first appellate court to ascertain : (i) whether the landlord is interested in re-constructing that portion of the building which is .in
possession of the tenant as demised premises ; (ii) whether the landlord would
be in a position to reconstruct foe building in his possession without the- tenant
being required to vacate the demised premises and (iii) if the first two queries
are answered in favour of the landlord, what should be the appropriate
directions to be given in favour of the tenant as enjoined by section 18 of
the Act.
[621 C-F]
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Per Pathak, J. (Concurring)
I. In a proceeding for the ejectment of a tenant on the ground of personal
requirement under a statute controlling the eviction of tenants, unless the statute
prescribes the contrary the requirement must continue to exist on the date when
the proceeding is finally disposed of, either in appeal or revision, by the
relevant authority. Here, the High Court should have allowed the application
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for amendment of the written statement under Order VI Rule 17, Civil
Procedure Code. [624 E-F]
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2. Before the need for per~onal residence can be held proved, several
considerations need to be proved under section 12(1)(e) of the Act. The omission
to draw the attention of the High Court to the fact that the need for ipersonal
residence was never pleaded in the plaint led the High Court to fall into error
in taking this element into account. [625 B-C]
Per Contra:
3:1. In the instant case, it is clear from the concurrent findings of the
courts below that (a) the respondent has made out his case under section 12
(l)(h) of the Act that he requires the building including the portion occupied by
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the appellants for the re-construction of the front portion and repairs to the
rear portion and that necessitates that the appellants vacate their accommodation and (b) the respondent needs a portion of the building for starting the
business of a medicine shop. [625 E-G]
3:2. Whether or not the shop should be located in the front portion of
the building and what should be the dimensions of the proposed Chemist and
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Druggist shop will tum on the evidence adduced by the parties in that behalf,
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· Giving a finding on this point, in the circumstances of thii case, is pre-eminently
a task to be entrusted to a subordinate court. The questions for consideration
by the appellate court are : (i) what should be the location of the shop and what
should be the dimensions in the matter and (ii) availability of [the benefit under
section 18 of the Act to the appellants. [625 D-E]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1108 of
1976.
Appeal by special leave from the judgment and order dated
the 17th April 1976 of the Madhya Pradesh High Court in Second
Appeal No. 113 of 1969.
S.K. Mehta, P.N. Puri and E.M.S. Anam for the Appellants.
P.P. Juneja for the Respondent.
The following Judgments were delivered
DESAI, J.
A tenant m;ider a decree of eviction is the appellant.
in this appeal by special leave.
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HASMAT RAI v. RAGHUNATH (Desai, J.)
609
Respondent landlord filed a suit for recovery of possession of
premises being a small shop admeasuring 7' X 22' forming part of
a big non-residential building situated in Sadar Bazar, Bilaspur town
in Madhya Pradesh on two grounds, to wit : (i) that he (landlord)
intended to open a medicine shop and he had no other reasonably
suitable accommodation for the same in the town ; and (ii) that he
(landlord) required the suit building for the purpose of reconstruction and repairs which could not be carried out unless it was vacated
by the defendant. The tenant resisted the suit pointing out that the
landlord on his own admission as set out in plaint para 4 was in
possession of a major portion of a non-residential building of which
he acquired possession from the firm of Goraldas Parmanand which
accommodation was sufficient for starting the business of Chemists
and Druggists shop. It was also contended that the building was
not in a dilapidated condition and did not need reconstruction and
repairs.
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The trial court recorded a finding that the building was in a
dilapidated condition and reconstruction of it was essential and the
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landlord had sufficient funds to undertake reconstruction.
On the
question of personal requirement of plaintiff to start a medicine
shop, the trial court recorded a finding that in the front pJrtion .of
building landlord would start his business as Chemists and Druggists
and the rear of the building would be utilized by him for his
residence. It was further held that as the landlord's requirement
was a composite one in that he wanted to reconstruct the building
and then use the whole of it for himself, therefore, the tenant was
not entitled to be inducted in the reconstructed building which he
would have been entitled to claim under section· 18 of the Madhya
Pradesh Accommodation Control Act, 1961 ('Act' for short).
An appeal by the tenant to the District Court elicited in para
20 a finding that though the landlord was studying he might choose
his career for business after he completed his education and he had
got Rs. 8,000 in a fixed deposit account in a bank and even though
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he obtained a decree against the firm of M(s. Goral Parmanand he
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had not got actual possession as the litigation was still pending and,
therefore, the plaintiff's requirement of the whole building was
established. The finding that the house was in dilapidated condition
and ·required reconstruction was affirmed.
When the matter reached the High Court in second appeal by
the tenant an application under Order VI, rule 17, Code of Civil
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Procedure, was made praying for an amendment to the written statement alleging that the firm Goraldas Parmanand has vacated the
whole of the remaining portion of the building excluding the premises
in possession of the tenant measuring T x 22' and that the plaintiff
has obtained actual possession of the same and if this aspect was
taken into consideration the plaintiff landlord would not be entitled to
a decree for eviction under s. 12(l}(f) of the Act The High Court
rejected the application observing that the adjoining portion occupied
by firm Goraldas Parmanand was vacated by the firm as far back as
in the year 1972 and therefore the application for amendment filed 3!
years after the filing of the appeal must be rejected on the ground
of delay and !aches. Further, despite the judgment of this Court
in Pasupuleti Venkateswarlu v. The Motor and General Traders,(1) the
High Court felt considerable hesitation in faking note of this event
subsequent to the passing of the decree for eviction by the trial
court because of its earlier decision in Taramal v. Laxaman Sewak
and Ors (2) in which it was held that the di;finition of 'tenant' in
the Act would not enable a tenant, though in possession but against
whom a decree or order for eviction has been made, to invite the
Court to take notice of events subsequent to the passing of the
the decree for eviction by the trial court. The decision of· this
Court was distinguished on the ground that the definition of the
expression 'tenant' in Andhra Pradesh Building (Lease Rent and
Eviction) Control Act, 1960, was somewhat different and was wide
enough to include such persons.
The High Court accordingly
rejected the application and dismissed the second appeal confirming
the decree for eviction.
Section 12(l}(f) under which eviction of the tenant is sought
by the landlord reads as under :-
"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."
In order to be able to seek eviction of a tenant under s. 12(1)(f) the
landlord has not only to establish that he bona fide requires the
(1) [1975] 3 S.C.R. 958.
(2) 1971 M.P. Law Journal 888.
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HASMAT RAI v. RAGHUNATH (Desai, J.)
611
accommodation let to the tenant for non-residential purposes for the
purpose of continuing or starting his busine~s but he must further
show that the landlord has no other reasonably suitable non·
residential accommodation of his own in his occupation in the city
or the town concerned.
The landlord in this case seeks eviction of the tenant from a
building let for non-residential purpose. He can obtain possession
either for continuing or starting his business.
He was a student
at the relevant time. He appeared to have completed his education
thereafter. It is stated in the plaint unambiguously that he wanted
to start business by opening a medicine shop. In other words, he
wanted to start a Chemist and Druggist shop.
He must, therefore,
show that he has not got in his possession a reasonably suitable
non-residential accommodation of his own in his occupation in the
town of Bilaspur.
The suit building, as earlier observed, is in the city of Bilaspur
and situated in Sadar Bazar, obviously a business locality. Respondent:landlord claims to be the owner of the whole building.
The suit premises in possession of the tenant in which he is
carrying on a small kirana shop admittedly admeasures 7' frontage
on the main road and 22' in depth.
In other words it is 7' x 22'.
The whole building of which demised premises form a small part
appears to be having a frontage of 28'.
3' passage has to be excluded. The premises in possession of the tenant has a frontage of 7'.
The length of the building or what is styled as depth was given out
to us as 90' by learned counsel for respondent-landlord. 18' frontage
with 90' depth was thus in possession of firm Goraldas Parmanand.
Respondent landlord had also initiated proceedings for obtaining
possession of the premises occupied by firm Goraldas Parmanand
on the same ground, namely, that he wanted to start his business
of Chemists and Druggists in the building.
The question is whether the premises occupied by firm
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Goraldas Parmanand has been vacated by the firm. If the answer
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is in affirmative, the respondent landlord has thus obtained vacant
possession of the whole of the premises occupied by firm Goraldas
Parmanand. Looking to the map annexed to the plaint and the
evidence led in the case and the dimensions of the premises stated
at the hearing of this appeal the area vacated by the previous
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tenant would be 18' x 90' plus portion at the back of the premises
occupied by the present appellant which would be 7' x 68' and it
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SUPREME COURT REPORTS
[1981] 3 S.C.R.
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has come in possession of the respondent. The last question would
be if landlord obtained vacant possession subsequent to the decree
passed against the present appellant tenant by the Trial Court,
whether the subsequent event could be noticed by the court for
moulding the decree against the present appellant tenant.
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Section 12 starts with a non-obstante clause thereby curtailing
the right of the landlord to seek eviction of the tenant which he
might have under any other law and the right of eviction is made
subject to the overriding provision of section 12. It is thus an
enabling section. In order to avail of the benefit conferred by
section 12 to seek eviction of the tenant the landlord must satisfy
the essential ingredients of the section. The landlord in this case
seeks eviction of the tenant under section 12(l)(f). He must, therefore, establish (i) that he requires bona fide possession of a building
let for non-residential purpose for continuing or starting his business; and (ii) that he has no other reasonably suitable non-residential
accommodation of his own in his occupation in the city or town
concerned. The burden to establish both the requirements of section
12(l)(f) is squarely on the landlord. And before an allegation of
fact to obtain the relief required is permitted to be proved, the law
of pleadings require that such facts have to be alleged and must
be put in issue.
Ordinarily, therefore, when a landlord seeks
eviction under section 12( I )(f) the court after satisfying itself that
there are proper pleadings must frame two issues namely (i) whether
the plaintiff landlord proves that he bona fide requires possession
of a building let to the tenant for non-residential purpose for continuing or starting his business, and (ii) whether he proves that he
has no other reasonably suitable non-residential accommodation of
his own in the city or town concerned. With out elaborating we
must notice a well established proposition that any amount of proof
offered without pleadings is generally of no relevance.
Turning to the pleadings in this case the plaintiff in para 6 of
the plaint has stated as under :-
"The plaintiff intends to start his own business in the
said building after the said reconstruction. He intends to
open a medicine shop therein. The plaintiff bona fide
requires the suit house for the above purpose. He has no
other suitable accommodation for the same in the town."
The cryptic averment is that the plaintiff has not got any other
reasonably suitable accommodation in the same town.
However,
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HASMAT RAI v. RAGHUNATH (Desai, J.)
613
in para 4 of the plaint it is stated 'that the major portion of the
building is in occupation of the firm Goraldas Parmanand and the
plaintiff has already obtained a decree for its eviction therefrom'.
The defendant in his written statement has in term stated that the
defendant is in possession of a small portion of the building, the
remaining p~rtion of which was in possession of firm M/s. Goraldas
Parmanand. In para 6 of the written statement it is further stated
that on his own admission, the plaintiff has got a suitable alternative accommodation being the premises for which a decree of
eviction is obtained for doing business and which is more than
sufficient for his requirement. The learned Trial Judge framed Issue
No. 2(a) on the question whether the plaintiff landlord had no other
reasonably suitable accommodation of his own in his occupation in
the city. While recording finding on this issue the cryptic observation
in para 19 of the judgment is that the plaintiff is a student and he
has no other accommodation for starting his own business. There
is not the slightest reference to the decree admittedly obtained by
the plaintiff against firm M/s. Goraldas Parmanand which firm was
carrying on business in a portion of the building which the plaintiff
himself has described as the major portion of the building, the suit
premises being a small portion of the whole building. In the first
appeal this contention is disposed of by observing that the alternative
accommodation which the defendant has pleaded in his written
statement is under litigation and therefore it cannot be treated as
available to the plaintiff.'
In the second appeal in the High Court the defendant appellant moved an application under Order VI Rule 17 for amendment
of the written statement for elaborating what was already stated
that not only the decree obtained by the plaintiff against the
adjoining tenant of the same building namely firm of M/s. Goraldas
Parmanand has become final but the plaintiff in execution of the
decree way back in I 972 obtained actual possession of the whole of
area occupied by that firm and that forms major portion of the whole
building. This application, though, in our opinion, to be whoily
superflous in view of the pleadings hereinbefore set out and in view
of the fact that the burden of proof of establishing that the landlord
was not in possession of a reasonably suitable accommodation in
the same town was on the plaintiff was rejected on untenable
ground that the defendant appellant was guilty of delay and !aches.
This application for amendent deserves to be granted, and we grant
the same.
What is its impact ? Even while rejecting the application
the High Court in terms observed in para 4 of its judgment as
under:-
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'Adjoining portion was vacated by firm Goraldas
Parmanand as far back as in the year 1972'.
The High Court thus had before it a fact beyond dispute and beyond
controversy that the major portion of the building was vacated by
the adjoining tenant way back in 1972.
This was an uncontroverted
fact.
Therefore remand on this point is an exercise in futility
because the fact alleged in the application for amendment is
admitted. After rejecting the application on wholly untenable ground
the High Court in 1976 affirmed the finding wholly contrary to
record as available at that stage that the plaintiff landlord had no
other reasonably suitable non-residential accommodation of his own
in his occupation in the city even though on landlord's own admission he had acquired vacant possession of a major portion of the
building let for non-residential purpose as far back as 1972.
In the
course of hearing we were repeatedly told that the finding of facts
are sacrosanct. The finding of fact ignoring
incontrovertible
admitted position which would non-suit the plaintiff if upheld
would be travesty of justice. The burden being on the plaintiff to
show that he had no other reasonably suitable accommodation for
carrying on the business which he wanted to start in the suit
premises, it was for the plaintiff to show that he had not acquired
possession from firm
Goraldas Parmanand.
Alternatively the
plaintiff should have shown that the said adjacent accommodation
was not reasonably suitable for the business he wanted to start.
He
has done neither.
On the contrary plaintiff has admittedly adopted
a position in the plaint that he not only wanted suit premises but
also the adjoining premises of which he had obtained possession for
starting his business. In such a situation i · the High Court had
kept in view that the plaintiff had already with him viz. possession
of a building having 18' frontage on the main road and 90' depth
plus portion at the back of the suit premise~ in his possession it
would have to come to an affirmative conclusion that the plaintiff
had sufficient accommodation for starting his business as a Chemists
and Druggists. It was no where pointed out by the plaintiff that the
shop of Chemists and Druggists or a medicine shop would require
frontage of more than 18'.
18' frontage on a main road in a city
like Bilaspur is sufficiently attractive and accommodating. The depth
of the shop as given out to us being 90' ; therefore landlord has now
in his possession shop admeasuring 18' X 90' plus the area of 7' X 90'
at the back of the suit premises being part of the same buildin.g.
Would this not provide more than ample accommodation _to the
plaintiff to start his business as a Chemists and Druggists ? Not one
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HASMAT RAJ v. RAGHUNATH (Desai, J.)
615
word has been said that the accommodation which is already in possession of the plaintiff is neither suitable nor reasonably suitable nor
sufficient for starting his business. In fact the very stand of plaintiff
landlord as accepted by the High Court that some portion at the
back would be utilised by landlord for residence would affirmatively
establish that landlord has more than enough vacant accommodation
in possession for starting his business.
The difficulty which the High Court experienced was whether
a tenant under a decree of eviction could invite the Court to take
into consideration the events .subsequent to passing of the decree
which if noticed would non-suit the landlord.
The definition of expression 'tenant' in the Act excludes from
its operation a person in possession against whom any order or
decree for eviction has been made.
The High Court referred to its
earlier judgment in Taramal's case wherein it was held that the
protection to a statutory tenant lapsed with the passing of a decree
and such a person had no right to bring on record new circumstances
which were not in existence at the date of the passing of the decree.
This approach wholly overlooks the scheme of the Rent Restriction
Act. The M.P. Act enables a landlord to seek eviction of a tenant
and obtain possession under various circumstances set out in section
12. If a Ian dlord bona fide requires possession of a premises let
for residential purpose for his own use, he can sue and obtain
possession.
He is equally entitled to obtain possession of the
premises let for non-residential purposes if he wants to continue or
start his business. If he commences the proceedings for eviction on
the ground of personal requirement he must be able to allege and
show the requirement on the date of initiation of action in the Court
which would be his cause of action.
But that is not sufficient.
This requirement must continue throughout the progress of the
litigation and must exist on the date of the decree and when we say
decree we mean the decree of the final court. Any other view
would defeat the beneficial provisions of a welfare legislation like
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the Rent Registration Act. If the landlord is able to show his
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requirement when the action is commenced and the requirement
continued till the date of the decree of the Trial Court and thereafter
during the pendency of the appeal by the tenant if the landlord comes
in possession of the premises sufficient to satisfy his requirement,
on the view taken by the High Court, the tenant should be able
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to show that the subsequent events disentitled the plaintiff, on the
only ground that here is tenant against whom a decree or order for
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SUPREME COURT REPORTS
(1981] 3 S.C.R.
A
eviction has been passed and no additional evidence was admissible
to take note of subsequent events.
When a statutory right of appeal
is conferred against the decree or the order and once in exercise of
the right an appeal is preferred the decree or order ceases to be final.
What the definition of 'tenant' excludes from its operation is the
person against whom the decree or order for eviction is made and
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the decree or order has become final in the sense that it is not
open to further adjudication by a court or heirarachy of courts. An
appeal is a continuation of suit. Therefore a tenant against whom a
decree for eviction is passed by Trial Court does not lose protection
if he files the appeal because if appeal is allowed the umbrella of
statutory protection shields him. Therefore it is indisputable that the
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decree or order for eviction referred to in the definition of tenant must
mean final decree or final order of eviction. Once an appeal
against decree or order of eviction is preferred the appeal being
a continuation of suit, landlord's need must be shown to continue
to exist at appellate stage. If the tenant is in a position to show
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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 including the appellate court has to examine, evaluate and
adjudicate
the same.
Otherwise the landlord would derive an
unfair advantage.
An illustration would clarify what we want to
convey. A landlord was in a position to show he needed possession
of demised premises on the date of the suit as well as on the date
of the decree of the trial court. When the matter was pending in
appeal at the instance of the tenant, the landlord built a house or
bungalow which would fully satisfy his requirement. If this subsequent event is taken into consideration, the landlord would have
to be non-suited. Can the court shut its eyes and evict the tenant ?
Such is neither the spirit nor intendment of Rent Restriction Act
which was enacted to fetter the unfettered right of re-entry. Therefore when an action is brought by the landlord under Rent Restriction Act for eviction on the ground of personal requirement, his
need must not only be shown to exist at the date of the suit, but
must exist on the date of the appellate decree, or the date when a
higher court deals with the matter. During the progress and passage
of proceeding from court to court if subsequent events occur which
if noticed would non suit the plaintiff, the court has to examine and
evaluate the same and mould the decree accordingly. This position
is no more in controversy in view of a decision of this Court in
Pasupuleti Venkateswarlu (supra) where Justice Krishna Iyer speeking
for the Court observed as under :-
"We affiirm the proposition that for making the right
or remedy clain;ed by the party just and meaningfully as
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HASMAT RAJ v. RAGHUNATH (Desai, J.)
617
also legally and factually in accord with the current realities,
the court can, and in many cases must, take cautions
cognisance of events and development subsequent to the
institution of the proceeding provided the rules of fairness
to both sides are scrupulously observed."
In order to fully evaluate the law laid down in the aforementioned
extracted passage it is worthwhile to give the background of facts
in which it was made. The appellant landlord in that case was the
owner of a large building which was leased out in separate portions
to several tenants. One of such tenants was the respondent. The
landlord wanted to start a business in automobile spares and
claimed eviction of the respondent under the Rent Restriction Act
being Andhra Pradesh Buildings (Lease, Rent and Eviction) Control
Act, 1960.
The petition was resisted and the Rent Controller
dismissed the petition. The appeal of the landlord failed. But in
revision the High Court chose to remand the case to the appellate
authority and the appellate authority in turn remitted the case to
the Trial Court for fresh disposal in accordance with certain
directions. The landlord preferred a revison petition against the
order of remand by the first appellate court. The High Court
dismissed the action of the landlord taking cognisance of a sub·
sequent event namely that the landlord acquired possession of a
reasonable suitable non-residential building in the same town. In
appeal to this Court it was seriously contended that it was improper
for the High Court to take into consideration the subsequent events
and this contention was negatived inter alia on the ground in the
passage extracted above. Therefore, it is now incontrovertible that
where possession is sought for personal requirement it would be
correct to say that the requirement pleaded by the landlord must
not only exist on the date of the action but must subsist till the
final decree or an order for eviction is made. If in the meantime
events have cropped up which would show that the landlord's
requirement is wholly satisfied then in that case his action must fail
and in such a situation it is incorrect to say that as ·decree or order
for eviction is passed against the tenant he cannot invite the court to
take into consideration subsequent events.
He can be precluded
from so contending when the decree or order for eviction has
become final. In view of the decision in Pasupuleti's case (supra)
the decision of the Madhya Pradesh High Court in TartJmal' s case
must be taken to have been overruled and it could not be distinguished only on the ground that the definition of 'tenant' in the
Madhya Pradesh Act is different from the one in Andhra Pradesh
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SUPREME COURT REPORTS
( [981) 3 S.C.R.
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Act.
Therefore, the High Court was in error in declining to take
this subsequent event which was admittedly put forth in the plaint
itself into consideration.
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The landlord wants to start his business as Chemists and
Druggists. On his own admission he has in his possession a. shop
admeasuring 18' x 90' plus 7' x 68' forming part of the same building
the remaining small portion of 7' x 22 is occupied by the tenant.
The landlord has not stated that so much space with 18' frontage
is not reasonably suitable for starting his business as Chemist and
Druggist. In that view of the matter the plaintiff's suit for eviction
on the ground mentioned in section 12(l)(f) must fail and this is
being done by not disturbing any finding of fact but relying upon
the admission of the plaintiff himself.
There is an err0r apparent on the face of the record inasmuch
as when the High Court was faced with a dilemma whether
the landlord required the whole of the building including demised
premises now. in possession of the appellant tenant for starting his
business of Chemists and Druggists and when the High Court had
before it an indisputable fact that the respondent landlord has
obtained vacant possession of a major portion of the building which
was in possession of firm M/s. Goraldas Parmanand, was it necessary
for him to have any additional accommodation ? The High Court
got over this dilemma by observing and by affirming the finding of
the subordinate courts that the remaining portion of the premises
would be used by the landlord for his residence and even though
the portion utilised for the purpose of running the buisness would
be smaller compared to the one to be utilized for the residence it
would still not be violative of sub-section (7) of sec. 12 because
such a composite user would not radically .change the purpose for
which the accommodation was Jet.
This finding is contrary to
record and pleadings.
Minutely scanning the plaint presented by
the landlord there is not the slightest suggestion that he needs any
accommodation for his residence.
He has not even stated whether
at present he is residing in some place of his own though he claimed
to be residing in the same town.
He does not say whether he
is under any obligation to surender that premises.
Section 12(l)(e)
specifically provides for a landlord obtainiHg possession of a building
Jet for residential purposes if he bona fide requires the same for his
own use and occupation.
But there is an additional condition
he must fulfil namely he must further show that he has rio other
reasonably suitable residential accommodation of his own in, his
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HASMAT RAI v. RAGHUNATH (Desai, J.)
619
occupation in the city or town concerned. Utter silence of the
landlord on this point would be a compelling circumstance for the
court not to go in search for some imaginary requirement of the
landlord of accommodation for his residence. In the context of
these facts the Trial Court and the first Appellate Court committed
a manifest error apparent on the record by upholding the plaintiff's
case by awarding possession also on the ground neither pleaded nor
suggested.