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CASE NO.:

Appeal (civil) 5460 of 1999

PETITIONER:

OM PRAKASH GUPTA

Vs.

RESPONDENT:

RANBIR B. GOYAL

DATE OF JUDGMENT: 18/01/2002

BENCH:

R.C. Lahoti & Brijesh Kumar

JUDGMENT:

R.C. Lahoti, J.

The suit premises are described as booth no.13, Sector 8, Panchkula. These premises

were let out by the plaintiff-respondent to the defendant-appellant sometime in August, 198

9 on a monthly rent of Rs.2650/-, excluding electricity charges. Since then the defendant-a

ppellant has been running therein a shop of provision goods and general stores. He fell int

o arrears of rent and electricity charges with effect from 1st April, 1990. The plaintiff-r

espondent served on him a notice demanding payment of arrears and terminating his tenancy. O

n failure to comply with the notice a suit for eviction was filed in the Court of Civil Judg

e on 12.9.1990. The defendant-appellant contested the suit mainly on the ground of notice o

f ejectment being defective. The Trial Court, by its judgment dated 11th June, 1998, answer

ed all the issues in favour of the plaintiff-respondent and directed the suit for eviction a

nd recovery of arrears to be decreed. First and second appeals preferred by the defendant-a

ppellant have been dismissed. This is an appeal filed by special leave.

It has been common case at the Bar that the suit premises are situated in the State

of Haryana where the provisions of the Transfer of Property Act are not applicable and the r

ights and obligations of the parties are to be worked out and governed under common law of t

he land. At the time of hearing it was conceded by the learned counsel for the appellant th

at no fault can be found with the decree of the Trial Court as confirmed by the First Appell

ate Court and the High Court. However, the learned counsel for the appellant submitted that

there has been a subsequent event having a material bearing on the judgment under appeal an

d the right of the respondent to decree. Such subsequent event is now the core of controver

sy, the relevant facts relating to which, are stated in the succeeding paragraphs.

It appears that the suit premises have been constructed by Haryana Urban Development

Authority (HUDA, for short), governed by the provisions of The Haryana Urban Development Au

thority Act, 1977 (the Act, for short). The premises have been allotted by HUDA to the plai

ntiff-respondent and the latter is required to pay certain instalments to HUDA and a failure

in payment of instalments renders the allotment liable to cancellation with recovery of arr

ears, imposition of penalty and resumption of possession under Section 17 of the Act. The H

igh Court rendered its judgment in Second Appeal on 15.12.1998. The only contention dealt w

ith by the High Court, in view of the singular submission made before it, was to allow the a

ppellant three months' time for vacating the premises subject to an undertaking for vacating

the premises on expiry of three months. SLP was filed on 8.3.1999. On 30.3.1999 this Cour

t directed a notice on SLP to be issued to the respondent and at the same time passed an int

erim order staying the operation of the decree appealed against. On 15.3.1999, the date on

which the time appointed by the High Court for vacating the premises was coming to an end, t

he tenant-appellant moved an application before the High Court seeking one month's extension

of time for compliance with the direction of the High Court on two grounds: firstly, that t

hough the SLP was filed in this Court it was yet to be taken up for hearing; and secondly, H

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UDA had initiated proceedings for resumption of the suit premises against the plaintiff-resp

ondent. It appears that the High Court extended the time for vacating the premises till 20

.4.1999. In the meantime, as already stated, this Court granted interim relief to the appel

lant although the factum of extension of time granted by the High Court and the grounds ther

efor were not brought to the notice of this Court. All these facts were brought to the noti

ce of this Court through an affidavit filed (by way of counter-affidavit to the special leav

e petition) on 11th May, 1999 by the plaintiff-respondent submitting that the conduct of th

e defendant-appellant did not entitle him to any relief in the discretionary jurisdiction of

this Court under Article 136 of the Constitution.

An additional affidavit by way of rejoinder was filed by the appellant on 8th June,

1999 wherein it has been stated that after the filing of SLP in this Court the appellant had

received a notice dated 7.4.1999 from the Estate Officer, HUDA asking him to vacate the sui

t premises. On 19.5.1999 the appellant has submitted an application to HUDA requesting

them to allot the suit premises to the appellant on the same terms and conditions or any oth

er terms and conditions as may be thought fit by HUDA. It was submitted that in these circum

stances, as the plaintiff-respondent has ceased to be owner of the suit premises, he was not

entitled to execute the decree for eviction and the same was liable to be set aside.

At the time of hearing the learned counsel for the plaintiff-respondent brought to t

he notice of this court an order dated 22.6.2000 passed by Chief Administrator, HUDA, an App

ellate Authority over the Estate Officer, HUDA whereby an appeal filed by the respondent has

been allowed and the respondent has been allowed an extension of time for payment of the ar

rears of instalments to HUDA.

The relevant facts emerging from a perusal of the documents placed on record by the

parties insofar as they relate to the proceedings before HUDA may briefly be noticed.

On 12.2.1999 the Estate Officer, HUDA passed an order recalling the allotment of the

suit premises for failure of the respondent to pay the amount of instalments in arrears and

the interest accrued thereon, forfeiting the amount already paid. On 7.4.1999 the appella

nt was served with a notice by the Estate Officer to remove his unauthorized occupation of t

he premises. On 19.5.1999 the appellant proposed to HUDA that he was ready and willing to p

ay the Authority the entire amount which was to be paid by the respondent to it along with i

nterest and to have the suit premises allotted to himself. In between, the plaintiff respon

dent had preferred an appeal under Section 18 of the Act, putting in issue the order of Esta

te Officer, which appeal came to be allowed and the order of resumption has been set aside.

It appears that there was a dispute as to the rate at which the interest was levied by HUDA

on the amount of instalments in arrears, as to which the High Court of Punjab & Haryana had

issued some directions which the Authority was required to comply. The Appellate Autho

rity directed the Estate Officer to calculate interest consistently with the decision of the

High Court and to allow 30 days' time to the respondent to make payment failing which the r

esumption may follow. On 3.11.2000 the respondent has written to the Estate Officer invitin

g his attention to the appellate order, his failure to act thereon and expressing the willin

gness of the respondent to pay the amount subject to its being calculated by the Estate Offi

cer as per the appellate order of the Administrator. What has happened thereafter is not kno

wn.

It is common case of the parties that the rights and obligations of the parties as l

andlord and tenant are not to be worked out as statutorily enacted by Transfer of Property A

ct as the same is not applicable to the State of Haryana. However, still, the learned couns

el for the parties have not disputed that the principles flowing from the provisions of the

Transfer of Property Act may safely be taken as a guide to work out the mutual rights and ob

ligations of the parties under the general law. A tenant inducted into possession of the te

nancy premises is ordinarily bound to restore possession over the tenancy premises to the la

ndlord on the tenancy coming to an end. Such obligation comes to an end either by actually

fulfilling the obligation or by proving that the landlord's title stands extinguished by the

landlord's eviction by title paramount. The burden of proving eviction by title paramount

lies on the party who sets up such defence. In a recent decision by us in Vashu Deo Vs. Bal

Kishan (C.A. Nos.5467-5468 of 1998 decided on January 11, 2002) we have held :

"To constitute eviction by title paramount so as to discharge the obligation of the

tenant to put his lessor into possession of the leased premises, three conditions must be sa

tisfied: (i) the party evicting must have a good and present title to the property; (ii) the

tenant must have quitted or directly attorned to the paramount title holder against his wi

ll; (iii) either the landlord must be willing or be a consenting party to such direct attor

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nment by his tenant to the paramount title holder or there must be an event, such as a chang

e in law or passing of decree by a competent court, which would dispense with the need of co

nsent or willingness on the part of the landlord and so bind him as would enable the tenant

handing over possession or attorning in favour of the paramount title holder directly; or, i

n other words, the paramount title holder must be armed with such legal process for eviction

as cannot be lawfully resisted. The burden of raising such a plea and substantiating the sa

me, so as to make out a clear case of eviction by paramount title holder, lies on the party

relying on such defence."

In Vashu Deo's case (supra) the landlord-owner of the tenancy premises was a Trust. The Tru

st had let out the premises to a tenant and the tenant had inducted a sub-tenant in the prem

ises. The Trust had instituted a suit for eviction against the tenant subsequent to the ins

titution of the suit by tenant against sub-tenant claiming arrears of rent and eviction of t

he latter. Immediately on institution of suit by the principal owner, i.e. the Trust, the s

ub-tenant had voluntarily attorned in favour of the principal owner and without the consent

of the tenant. Suit by the principal owner against the tenant was still pending. This Cour

t noticed the provisions of local rent control law whereunder entitlement of the tenant to h

old the suit premises as tenant would not come to an end unless a decree for eviction agains

t him was passed by a court of law in a suit for eviction instituted by the principal owner

against the tenant and then held - 'till then he would remain a tenant of the Trust. Mere i

nstitution of a suit for eviction by the Trust, the owner of the property, against the respo

ndent does not bring the tenancy of the respondent to an end. The respondent cannot be said

to have been evicted by title paramount. It cannot be said that the respondent-tenant does

not have any defence nor can he lawfully resist the suit filed by the owner Trust. The pla

in and simple legal position which flows is that the appellant must discharge his statutory

obligation to put his landlord, that is, the respondent, in possession of the premises in vi

ew of the latter's entitlement to hold the tenancy premises until his own right comes to an

end and the respondent must discharge his statutory obligation to put his own landlord, that

is, the Trust, in possession of the tenancy premises on his entitlement to hold the tenancy

premises coming to an end. The plea of eviction by paramount title is not available to th

e appellant for three reasons: firstly, it cannot be said that the Trust is armed with a leg

al process for eviction which cannot be lawfully resisted by the tenant-respondent or to whi

ch he has no defence; secondly, the attornment by the appellant in favour of the Trust is vo

luntary and not under any compulsion; and thirdly, it cannot be said that the Trust has such

good and present title against the tenant-respondent so as to hold the appellant liable to

be evicted against his will'.

For two reasons we do not think that the defendant-appellant is entitled to any reli

ef and for setting aside of the decree for eviction. Firstly, there is neither any order of

resumption and forfeiture within the meaning of Section 17 of the Act passed by HUDA agains

t the respondent nor is there an allotment by HUDA directly in favour of the appellant. In

view of the order of the Estate Officer having been set aside by the Appellate Authority und

er the Act the allotment made by HUDA in favour of the respondent continues to subsist. His

title, under which he had inducted the appellant in possession of the suit premises, has no

t come to an end. The triple test, laid down by this court in Vashu Deo's case is not satis

fied. Secondly, the appellant is placing reliance on an event happening after the instituti

on of suit, i.e. a subsequent event and a case for taking notice of such subsequent event by

court so as to impair the judgment under appeal is not made out.

The ordinary rule of civil law is that the rights of the parties stand crystalised o

n the date of the institution of the suit and, therefore, the decree in a suit should accord

with the rights of the parties as they stood at the commencement of the lis. However, the

Court has power to take note of subsequent events and mould the relief accordingly subject t

o the following conditions being satisfied : (i) that the relief, as claimed originally has,

by reason of subsequent events, become inappropriate or cannot be granted; (ii) that taking

note of such subsequent event or changed circumstances would shorten litigation and enable

complete justice being done to the parties; (iii) that such subsequent event is brought to t

he notice of the Court promptly and in accordance with the rules of procedural law so that t

he opposite party is not taken by surprise. In Pasupuleti Venkateswarlu Vs. The Motor &

General Traders - AIR 1975 SC 1409 this Court held that a fact arising after the lis, comin

g to the notice of the Court and having a fundamental impact on the right to relief or the m

anner of moulding it and brought diligently to the notice of the Court cannot be blinked at.

The Court may in such cases bend the rules of procedure if no specific provision of law or

rule of fairplay is violated for it would promote substantial justice provided that there i

s absence of other disentitling factors or just circumstances. The court speaking through Kr

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ishna Iyer, J. affirmed the proposition that court can, so long as the litigation pends, tak

e note of updated facts to promote substantial justice. However, the court cautioned: (i) t

he event should be one as would stultify or render inept the decretal remedy, (ii) rules of

procedure may be bent if no specific provision or fairplay is violated and there is no other

special circumstance repelling resort to that course in law or justice, (iii) such cognizan

ce of subsequent events and developments should be cautions, and (iv) the rules of fairness

to both sides should be scrupulously obeyed.

Such subsequent event may be one purely of law or founded on facts. In the former c

ase, the Court may take judicial notice of the event and before acting thereon put the parti

es on notice of how the change in law is going to affect the rights and obligations of the p

arties and modify or mould the course of litigation or the relief so as to bring it in confo

rmity with the law. In the latter case, the party relying on the subsequent event, which co

nsists of facts not beyond pale of controversy either as to their existence or in their impa

ct, is expected to have resort to amendment of pleadings under Order 6 Rule 17 of the CPC.

Such subsequent event the Court may permit being introduced into the pleadings by way of ame

ndment as it would be necessary to do so for the purpose of determining real questions in co

ntroversy between the parties. In Messrs. Trojan & Co. Vs. RM. N.N. Nagappa Chettiar - AIR

1953 SC 235 this Court has held that the decision of a case cannot be based on grounds outsi

de the pleadings of the parties and it is the case pleaded that has to be found; without the

amendment of the pleadings the Court would not be entitled to modify or alter the relief.

In Sri Mahant Govind Rao Vs. Sita Ram Kesho & Ors. - (1898) 25 Indian Appeals 195 (PC),

their Lordships observed that, as a rule, relief not founded on the pleadings should not be

granted.

Power of the Court to take note of subsequent events, specially at the appellate sta

ge, came up for the consideration of a Full Bench of Nagpur High Court presided over by Just

ice Sinha (as His Lordship then was) in Chhote Khan Vs. Mohammad Obedulla Khan, AIR 1953 Nag

361. Hidayatullah, J. (as His Lordship then was) held, on a review of judicial opinion, th

at an action must be tried in all its stages on the cause of action as it existed at the com

mencement of the action. No doubt, Courts 'can' and sometimes 'must' take notice of subseque

nt events, but that is done merely 'inter partes' to shorten litigation but not to give to a

defendant an advantage because a third party has acquired the right and title of the plaint

iff. The doctrine itself is of an exceptional character only to be used in very special cir

cumstances. It is all the more strictly applied in those cases where there is a judgmen

t under appeal. His Lordship quoted the statement of law made by Sir Asutosh Mookerjee, J.

in a series of cases that merely because the plaintiff loses his title 'pendente lite' is

no reason for allowing his adversary to win if the corresponding right has not vested in the

adversary but in a third party. In the case at hand, the defendant-appellant has simply st

ated the factum of proceedings initiated by HUDA against the plaintiff-respondent in an affi

davit very casually filed by him. He has not even made a prayer to the Court to take notice

of such subsequent event and mould the relief accordingly, or to deny the relief to the pla

intiff-respondent as allowed to him by the judgment under appeal, much less sought for an am

endment of the pleadings. The subsequent event urged by the defendant-appellant is basicall

y a factual event and cannot be taken cognizance of unless brought to the notice of the Cour

t in accordance with established rules of procedure which if done would have afforded the pl

aintiff-respondent an opportunity of meeting the case now sought to be set up by the appella

nt. We do not think this Court would be justified in taking notice of a fact sought to

be projected by the appellant in a very cavalier manner. The fact remains that the present

one is a landlord-tenant dispute and we cannot upset the relief granted by the courts below

and the High Court to the plaintiff-respondent by relying on the doctrine of eviction by tit

le paramount as it cannot be said that the proceedings initiated by HUDA against the plainti

ff-respondent have achieved a finality or are such proceedings wherein the plaintiff-respon

dent cannot possibly have any sustainable defence.

For the foregoing reasons the appeal is held liable to be dismissed and is dismissed accordi

ngly with costs throughout. The appellant is allowed three months time to deliver vacan

t and peaceful possession to the plaintiff respondent subject to his filing usual undertakin

g and clearing all the arrears under the decree within 3 weeks.

............................J.

( R.C. Lahoti )

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............................J.

( Brijesh Kumar)

January 18, 2002