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CASE NO.:

Appeal (civil) 1071 of 2001

Appeal (civil) 1072 of 2001

PETITIONER:

GAYA PRASAD

Vs.

RESPONDENT:

SHRI PRADEEP SRIVASTAVA

DATE OF JUDGMENT: 07/02/2001

BENCH:

K.T. Thomas & Doraiswamy Raju.

JUDGMENT:

THOMAS, J.

Leave granted.

This case presents a sample scenario of the tormenting

plight of an average litigant who approaches the court with

all expectations of getting relief for his urgent need. But

the snail paced litigation creeping through all the tiers of

the judicial hierarchical forums would have frustrated all

his expectations, though others could admire the tenacity

with which he persisted with the cause. Twenty three years

ago, the litigant in this case wanted accommodation for his

son, who then became a medical graduate, to start a clinic

so that from the stage of a fledgling in the profession of

medicine he could fly higher up. His father who owns the

building moved for eviction of the tenant from the building

for the said purpose. Although he won the battle at all

tiers the urgently needed eviction is till now eluding him

as a mirage.

Appellant is the tenant of a shop building situate at

Khalsa Gali, Agra. In 1978, the respondent-landlord filed

an application under Section 21(1)(a) of the U.P. Urban

Buildings (Regulation of Letting, Rent and Eviction) Act,

1972 (for short the U.P. Act) on a twin need. One is

that his son who passed his medical examination wanted to

carry on medical practice and this building was needed for

housing his clinic. The other is, the landlord himself had

just retired from Railway service and he too did not want to

waste his time, talent and energy and hence he wanted to

start a radio repairing work which he thought could be

performed by using a portion of the building. The first

forum, called the Prescribed Authority, where the

application was filed, found the claim bona fide and ordered

eviction on 25.3.1982. It was further found by the said

authority that the tenant has alternative accommodation in

the same city for doing his business.

Appellant filed an appeal but it took only 3 years for

the appellate court to dismiss the appeal on 10.10.1985.

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Though three years of pendency of an appeal is too much for

a litigant it is not considered unduly long by the standards

now developed regarding the pendency position of cases in

the courts in India.

The lengthiest leap which appellant secured was

thereafter when he approached the High Court. He filed a

writ petition challenging the order of eviction before the

High Court of Allahabad in 1985 and the High Court after

entertaining the writ petition granted stay of operation of

the eviction order. With the said initial dosage

administered by the High Court at the entry stage, the

hibernated writ petition seemed to have been consigned to

records where it remained in torpidity for a record period

of 15 years. The dust stricken writ petition was taken up

and disposed of only thereafter and the High Court found no

ground to interfere with the order challenged before it.

Appellant who gained such a record time did not hesitate to

make a plea to the High Court to grant him six months time

more to vacate and that too was acceded to on a condition

that appellant should give an undertaking before original

authority that he would vacate the premises within six

months.

The appellant who lost at all levels and yet succeeded

during all these years by keeping the order of eviction at

bay, lately discovered that the landlords son, for whom the

eviction was sought, joined the Provincial Medical Service

after 12 years of the institution of the lis. On that

premise appellant ventured to move the same High Court once

again, and this time for a review of the order. However,

the review petition was dismissed by the High Court as per

its order which is also impugned now.

In the appeal petition filed in this Court appellant

stated that the son of the landlord who joined the

Provincial Medical Service is posted at a place situated 200

kilometers from Agra, whereat the building is situate, and

that he is now getting a pay of Rs.15,000/- per month.

The point sought to be urged is that, subsequent

developments may also be taken into account in eviction

proceedings, particularly when the eviction is sought by a

landlord on the ground that he bona fide needs the building

for his own use or for the use of any member of his family.

Section 21(1) of the U.P. Act deals with proceedings

for release of building under occupation of tenant. Clause

(a) of the sub-section alone is germane in the present

proceedings. The said clause is, therefore, extracted

below:

The prescribed authority may, on an application of the

landlord in that behalf, order the eviction of a tenant from

the building under tenancy or any specified part thereof if

it is satisfied that any of the following grounds exists

namely-

(a) required either in its existing form or after

demolition and new construction by the landlord for

occupation by himself or any member of his family, or any

person for whose benefit it is held by him, either for

residential purposes or that the building is bona fide for

purposes of any profession, trade or calling, or where the

landlord is the trustee of a public charitable trust, for

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the objects of the trust;

We have no doubt that the crucial date for deciding as

to the bona fides of the requirement of the landlord is the

date of his application for eviction. The antecedent days

may perhaps have utility for him to reach the said crucial

date of consideration. If every subsequent development

during the post petition period is to be taken into account

for judging the bona fides of the requirement pleaded by the

landlord there would perhaps be no end so long as the

unfortunate situation in our litigative slow process system

subsists. During 23 years after the landlord moved for

eviction on the ground that his son needed the building,

neither the landlord nor his son is expected to remain idle

without doing any work, lest, joining any new assignment or

starting any new work would be at the peril of forfeiting

his requirement to occupy the building. 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 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.

We cannot forget that while considering the bona fides

of the need of the landlord the crucial date is the date of

petition. In Remesh Kumar vs. Kesho Ram [1992 Suppl. (2)

SCC 623] a two-Judge Bench of this Court (M.N.

Venkatachalia, J., as he then was, and N.M. Kasliwal, J.)

pointed out that the normal rule is that rights and

obligations of the parties are to be determined as they were

when the lis commenced and the only exception is that the

court is not precluded from moulding the reliefs

appropriately in consideration of subsequent events provided

such events had an impact on those rights and obligations.

What the learned Chief Justice observed therein is this:

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.

This Court reiterated the same principle in Kamleshwar

Prasad vs. Pradumanju Agarwal [1997 (4) SCC 413] that the

crucial date normally is the date of filing the petition.

In that case, a two-Judge Bench (K. Ramaswamy and G.B.

Pattanaik, JJ) has held that even the subsequent event of

death of the landlord who wanted to start a business in the

tenanted premises is not sufficient to dislodge the bona

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fide need established by him earlier. This is what

Pattanaik J. has observed for the Bench:

That apart, the fact that the landlord needed the

premises in question for starting a business which fact has

been found by the appellate authority, in the eye of law, it

must be that on the day of application for eviction which is

the crucial date, the tenant incurred the liability of being

evicted from the premises. Even if the landlord died during

the pendency of the writ petition in the High court the bona

fide need cannot be said to have lapsed as the business in

question can be carried on by his widow or any other son.

In our opinion, the subsequent events to overshadow 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. A three-Judge Bench of this Court in Pasupuleti

Venkateswarlu vs. Motor and General Traders [1975 (1) SCC

770] which pointed to the need for re-moulding the reliefs

on the strength of subsequent events affecting the cause of

action in the field of rent control litigation, forewarned

that cognizance of such subsequent events should be taken

very cautiously. This is what learned Judges of the Bench

said then:

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

cognizance of events and developments subsequent to the

institution of the proceedings provided the rules of

fairness to both sides are scrupulously obeyed.

The next three-Judge Bench of this Court, which approved

and followed the above decision, in Hasmat Rai vs.

Raghunath Prasad [1981 (3) SCC 103] has taken care to

emphasise that the subsequent events should have wholly

satisfied the requirement of the party who petitioned for

eviction on the ground of personal requirement. The

relevant passage is extracted below:

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 landlords 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.

(Emphasis supplied)

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,

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despite the impairment already caused.

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.

Considering all the aforesaid decisions, we are of the

definite view that the subsequent events pleaded and

highlighted by the appellant are too insufficient to

overshadow the bona fide need concurrently found by the fact

finding courts.

We wish to add, as an epilogue, that this case can

provide a catalytic agent for the High Courts to evolve some

concrete schemes for winching to the fore similar long

pending matters, lying in torpidity at the bottom of the

crammed list of pending cases in the High Courts after

passing the initial orders, keeping the operative part of

decrees in abeyance. It is worth considering whether a cell

can be set up in each of such High Courts where the piles of

backlog are a stirring problem, to pick out such cases to be

brought to the notice of the Chief justice of the High Court

concerned so that he could take appropriate steps in the

matter.

The above is not an advice, but only a suggestion. If

any alternative suggestion would appear better the same can

be resorted to. The time is running out for doing something

to solve the problem which has already grown into monstrous

form. If a citizen is told that once you resort to legal

procedure for realisation of your urgent need you have to

wait and wait for 23 to 30 years, what else is it if not to

inevitably encourage and force him to resort to extra legal

measures for realising the required reliefs. A Republic,

governed by rule of law, cannot afford to compel its

citizens to resort to such extra legal means which are very

often contra legal means with counter-productive results on

the maintenance of law and order in the country.

We dismiss these appeals.