M/S. Variety Emporium Vs. V. R. M.
Mohd. Ibrahim Naina [1984] INSC 217 (27 November 1984)
CHANDRACHUD, Y.V. ((CJ) CHANDRACHUD, Y.V.
((CJ) THAKKAR, M.P. (J)
CITATION: 1985 AIR 207 1985 SCR (2) 102 1985
SCC (1) 251 1984 SCALE (2)829
CITATOR INFO :
R 1987 SC 741 (13) F 1987 SC2055 (13) RF 1988
SC1074 (7) RF 1991 SC1760 (20)
ACT:
Constitution of India, 1950, Article
136-Power to grant special leave in Rent cases where three courts have accepted
the plea of bona fide personal requirements-onus of proof lies on the
petitioner tuition to prove unjustness of t decisions o the court as to
bonafide personal need-Subsequent events must also be looked into by the Courts
as regards continued requirement for personal purposes-Tamil Nadu Buildings
(Lease and Rent Control) Act, 1960, Section 10 (3) (i) and (iii), scope of,
HEADNOTE:
The respondent-landlord through an instrument
inter vivos , filed seven petitions for ejectment under section 10 (3) (i) and
(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (Tamil
Nadu Act XVIII of 1960 as amended by Act I of 1980) against seven different
tenants. Four out of these occupied shop premises on the ground floor while the
other three occupied residential premises on the first floor of a building
situated at Door No. 14, Pursuawalkam High Road, Madras. The plea of bona fide
personal requirement was accepted by the trial Judge who decreed all the
petitioner and passed orders of eviction against every one of the seven
tenants. One of these, who occupied a so-called shop measuring 4' x 4' under a
stairway, and another tenant in the residential portion on the first floor
acquiesced in the decree of eviction passed against them. Five out of the seven
tenants filed appeals against the orders of their eviction. The Appellate
Authority dismissed all the three appeals of the tenants of the shop premises
on the ground floor, but allowed the appeals filed by the two tenants of the
residential premises on the first floor. Thus the respondent succeeded in
obtaining decrees for possession against all the four tenants on the ground
floor and one tenant on the first floor. Against the said orders of the
Appellate Court, the appellant alone preferred a Civil Revision Petition (CRP.
122 of 1979) before the High Court. The High Court dismissed the petition.
Hence the tenant's appeal by special leave of the Court.
Allowing the appeal, the Court
HELD: 1.1 The jurisdiction of the Supreme
Court to grant special leave to appeal under Article 136 of the Constitution
has to be exercised sparingly. Concurrence of three Courts, as in this case
that the respondent has proved that he requires the suit premises bona fide for
his personal need, UNDOUBTEDLY has relevance on the question whether the
Supreme Court should 103 exercise its jurisdiction under Article 136 of the
Constitution to review a particular decision of the Courts below. But, that
cannot possibly mean that injustice must be perpetuated because it has been
done three times in a case. [105-H]
1. 2 In the instant case, by drawing a priori
conclusions the Courts have denied justice to the appellant.
The trial court deluded itself into believing
as proved, what remained to be proved by the production of evidence which could
have been produced but was not only not produced but was suppressed. The first
appellate court decided the question of landlord's bonafide requirement by the
application of formula which confuses 'requirement' or 'need' with 'desire'.
And, the High Court refused to apply its mind to a question which, if examined,
could have altered the course of justice. [106E-F]
1. 3 The burden of showing that a concurrent
decision of two or more Courts or Tribunals is manifestly unjust Iies on the
appellant. But once that a burden is discharged, it is not only the right but
the duty of the Supreme Court to remedy the injustice. [IIIA-B]
1. 4 The argument that such an interference
by the Supreme Court may lead and in practice, does lead to different standards
being applied by different courts to find out whether a concurrent decision is
patently illegal or unjust is inevitable in the present dispensation.
Quantatively, the Supreme Court has a vast
jurisdiction which extends over matters as far apart as Excise to Elections and
Constitution to Crimes. The Court sits in Benches and not en banc, as the
American Supreme Court does. Indeed, even if the entire Court were to sit to
hear every one of the matters which have been filed during any year a certain
amount of individuality in the response to injustice cannot be avoided. It is a
well-known fact of constitutional history, even in countries where the whole
court sits to hear every case, that the composition of majorities is not
static. It changes from subject to subject though, perhaps, not from case to
case. Personal responses to injustice are not esotenic. Indeed, they furnish
refreshing assurance of close and careful attention which the Judges give to
the cases which come before them The litigating public will not prefer a
computerised system of administration of justice: only, that the Chancellor's
foot must treadwarily. [lO6A-D]
1. S In appropriate cases the Court must have
regard to events as they present themselves at the time when it is hearing the
proceeding before it and mould the relief in the light of those events.[lIIE] Hasmat
Rai v. Raghunarh Prasad [1981] 3 SCR 605 followed OBSERVATlON: [It is quite
disparaging to describe a tenant's attempt to resist eviction by lawful means
as a "hue and cry". And, it is inequitous in the extreme that any
court of law, and least of all a Rent Act tribunal which has to deal with a
human problem of great magnitude, should regard it as a matter of no moment
that an order of eviction will throw the tenant on the street. A judge does not
have to wear a shoe in order to know where it pinches. Therefore, he does not
have to face the prospect of being driven to the street in order 104 to realise
what it means. His training legal equipment and experience of life are his
tools of education and social awareness. This does not mean that a decree of
eviction can never be passed against a tenant but, whether the provisions of a
law specifically require it or not the court has to have regard for all the
aspects of the matter before it and the foreseeable consequences of the order
which it proposes to pass]. [IO8D- F]
CIVIL APPELLATE JURISDlCTlON: Civil Appeal
No. 3358 of 1979.
Appeal by Special leave form the Judgment and
order dated the 31st October, 1979 of the Madras High Court in C. R. P. No. 122
of 1979.
C. S. Vaidyanathan for the appellant.
V. M. Tarkunde and Shakeel Ahmed for the
Respondent.
The Judgment of the Court was delivered by
CHANDRACHUD, C.J.: The respondent-landlord filed 7 petitions for ejectment
against 7 different tenants. Four out of these occupied shop premises on the
ground floor and the other 3 occupied residential premises on the first floor
of a building situated at Door No. 14, Pursuawalkam High Road, Madras. The
appellant is one of the four tenants of a shop on the ground floor.
The case of the respondent is that he is running
a wholesale business in textiles on the first floor of a building at 93,Godown
Street, Madras; that it is inconvenient and uneconomical for him to carry on
his business there; that he was incurring heavy losses in his wholesale
business by reason of conditions peculiar to the location of his business and
that, therefore, he wanted to wind up the wholesale business and start a retail
business in the building which was in the occupation of his tenants.
The learned trial Judge decreed all the
petitions and passed orders of eviction against every one of the 7 tenants. One
of these, who occupied a so-called shop measuring 4' x 4' under a stairway,
acquiesced in the decree of eviction passed against him. The other 3 tenants of
the shop premises challenged the decrees of eviction passed against them by
filing appeals before the Appellate Authority.
105 In so far as the residential premises are
concerned, 2 out of the 3 a tenants on the first floor filed appeals against
the eviction decrees. The third tenant, like the ground floor tenant under the
stairway, acquiesced in the decree.
In short, S out of the 7 tenants against whom
decrees for eviction were passed, filed appeals while the remaining two did
not.
The Appellate Authority dismissed all the 3
appeals of the tenants of the shop premises on the ground floor but, allowed
the appeals filed by the two tenants of the residential premises on the first
floor. The combined result of the proceedings in the trial Court and the first
appellate Court was that the respondent succeeded in obtaining decrees for
possession against all the 4 tenants on the ground floor and 1 tenant on the
first floor.
Out of the 3 tenants on the ground floor
against whom decrees for eviction were confirmed by the Appellate Authority (the
fourth tenant not having appealed), only one, namely, the appellant herein,
went to the High Court by way of a civil revision petition (C.R.P. No. 122 of
1979). The other two tenants on the ground floor accepted the decree of
eviction confirmed by the Appellate Authority.
Thus, the position which obtained during the
tendency of the civil revision petition before the High Court was that the
respondent had succeeded, finally and conclusively, in establishing his right
to recover or in recovering possession from 3 out of the 4 tenants of the shop
premises on the ground floor and 1 out of the 3 tenants of the residential
premises on the first floor. The High Court having dismissed the civil revision
petition, the appellant has filed this appeal by special leave.
It cannot be overlooked that three courts
have held concurrently in this case that the respondent has proved that he
required the suit premises bona fide for his personal need. Such concurrence,
undoubtedly, has relevance on the question whether this Court should exercise
its jurisdiction under Article 136 of the Constitution to review a particular
decision. That jurisdiction has to be exercised sparingly. But, that cannot
possibly mean that injustice must be perpetuated because it has been done three
times in a case. The burden of showing that a concurrent decision of two or
more Courts or Tribunals is manifestly unjust lies on the appellant. But once
that burden is discharged, it is not only the right but the duty of this Court
to remedy the injustice. Shri Tarkunde, who appears 106 for the respondent,
argued that this may lead and, in practice, does lead to different standards
being applied by different courts to find out whether a concurrent decision is
patently illegal or unjust. That in the present dispensation, is inevitable.
Quantitatively, the Supreme Court has a vast jurisdiction which extends over
matters as far apart as Excise to Elections and Constitution to Crimes. The
Court sits in Benches and not en banc, as the American Supreme Court does.
Indeed, even if the entire Court were to sit to hear every one of the
eighty-thousand matters which have been filed this year, a certain amount of
individuality in the response to injustice cannot be avoided. It is a
well-known fact of constitutional history, even in countries where the whole
court sits to hear every case, that the composition of majorities is not
static. It changes from subject to subject though, perhaps, not from case to
case. Personal responses to injustice are not esoteric. Indeed, they furnish
refreshing assurance of close and careful attention which the Judges give to
the cases which come before them. We do not believe that the litigating public
will prefer a computerised system of administration of justice: only, that the
Chancellor's foot must tread warily.
Counsel for the appellant, Shri Vaidyanathan,
has discharged admirably the heavy onus which lies upon him to establish that
the decision come to by three courts in this case is such as cannot possibly be
accepted. We will proceed to show immediately how by drawing a priori
conclusions, the courts, with great respect, have denied justice to the
appellant. The trial court deluded itself into believing as proved, what
remained to be proved by the production of evidence which could have been
produced but was not produced. The first appellate court decided the question
of landlord's bona fide requirement by the application of a formula which
confuses 'requirement' or 'need' with 'desire'. And, the High Court refused to
apply its mind to a question which, if examined, could have altered the course
of justice.
The firm called 'Artex company' of which the
respondent is a partner, is in occupation of business premises situated at 93,
Go down Street, Madras. The firm took those premises on a lease dated December
21, 1973 for a period of 21 years ending with December21, 1994.
Even to-day that lease is good for another
ten years. The reasons given by the respondent for seeking the eviction of the
appellant and the other six tenants are these. The main gate of the Godown
Street premises is opened at 9.OO a.m. and 107 is closed at 5.OO p.m., making
it impossible for him to receive his A customers before 9.OO A.M. Or after 5.00
P.M.; there is severe competition amongst the wholesale businessmen in the
Godown Street; and, there is a great deal of traffic congestion on the Godown
Street. These circumstances have enormously affected the business and since,
the firm is incurring losses day by day, it wanted to wind up the wholesale
business and start a retail business in the premises which are in the
occupation of the tenants.
The appellant challenged the contention of
the respondent that he was incurring losses in his wholesale business at Godown
Street and called upon him to produce the balance-sheet, Incometax returns and
account books of the firm. instead of producing these documents which would
have reflected the financial position of the wholesale business, the appellant
offered the lame excuse that the balance-sheet was in the custody of his auditor
who was out of station. It seems to us surprising that, instead of drawing an
adverse inference against the respondent for non-production of documents which
he was called upon to produce, the trial court accepted the ipse dixit of the
respondent that he was incurring losses in his wholesale business, wherefor it
had become necessary for him to obtain possession of the suit premises in order
to start a retail business. The sole or, at least, the main reason why the '
respondent requires the suit premises is that his present place of business is
so located as to cause loss to the business. Evidence showing that the business
was running into a loss was not only not produced but t suppressed.
Having seen that the trial Court accepted the
case of the respondent without an objective and careful assessment of the
evidence bearing upon the so-called requirement of the landlord, we will turn
to the judgment of the Appellate Authority. The learned appellate Judge says
that the single circumstance that the respondent was running his business in
tenanted premises was sufficient to justify the conclusion that his requirement
of the suit premises was bonafide. After recording this conclusion, the learned
appellate Judge proceeds to say:
"The hue and cry of the tenants in the
ground floor portion of the petition-mentioned premises that they will be
thrown to the street in the event of an order of eviction being passed need not
at all be considered. The very fact H 108 that the respondent had filed this
petition immediately after his purchase of the property in the year 1975 goes a
long way to prove that his very purpose of purchasing the premises must have
been to set up his business whether wholesale or retail in the petition mentioned
premises." The appellate Court went one step ahead of the respondent by
making out a case for him which he himself did not think it proper to make. It
was not his case that he wanted possession of the suit premises for the reason
that he was carrying on his business in tenanted premises. His case was that it
had become uneconomical to run the wholesale business in the Godown Street
premises and therefore he wanted to start a retail business in his own building
which was in possession of the appellant and other tenants.
Apart from this, it is quite disparaging to
describe a tenant's attempt to resist eviction by lawful means as a "hue
and cry". And, it is inequitous in the extreme that any court of law, and
least of all a Rent Act tribunal which has to deal with a human problem of
great magnitude, should regard it as a matter of no moment that an order of
eviction will throw the tenant on the street. A judge does not have to wear a
shoe in order to know where it pinches. Therefore, he does not have to face the
prospect of being driven to the street in order to realise what it means. His
training, legal equipment and experience of life are his tools education and
social awareness. We do not suggest that a decree of eviction can never be
passed against a tenant but, whether the provisions of a law specifically
require it or not, the court has to have regard for all the aspects of the
matter before it and the foreseeable consequences of the order which it
proposes to pass. Finally, it is impossible to subscribe to the view of the
appellate Court that the very fact that the respondent had filed the eviction
petitions immediately after he purchased the property, proves that the purpose
of purchasing the property was to set up a business there, "whether
wholesale or retail" The judgment of the High Court is in the nature of an
order of summary dismissal of the revision petition.
After allotting a page and three quarters to
the re- statement of the arguments made before it, the High Court disposed of
the proceeding in the following I few lines:
109 "l am afraid that once the
authorities below have taken into account all these circumstances and have come
A to the conclusion that the requirement of the respondent is bonafide, it is
not for this Court, as if a court of appeal, to go into these facts again and
hold against the respondent herein. Consequently, the civil revision petition
fails and is dismissed." B the High Court is right that, sitting in
revision, it could not have re-appreciated the evidence in the case as if it
were a court of appeal. But, in saying so, the High Court, with respect, missed
the real point in the case.
The main contention of the appellant before
the High Court was that so long as the eviction petitions were pending in the
trial Court and the first appellate Court, it could not be predicated with
certainty as to in how many cases the respondent would succeed finally. That
position had crystallized after the Appellate Authority had rendered its
judgment. As stated by us at the beginning of this judgment, I out of the 3
tenants on the first floor did not challenge the decree for eviction passed by
the trial Court. The landlord had, therefore, succeeded finally against him.
Out of the 4 tenants of the shop premises on the ground floor, the tenant under
the stairway did not challenge the decree for eviction passed against him by
the trial Court. We will, however, leave that gentleman alone, since he was in
possession of an area measuring 4' x 4' only. The remaining 3 tenants on the
ground floor, including the appellant, had filed appeals against the decrees of
eviction but, all the three appeals were dismissed by the Appellate Authority.
Two out of these 3 tenants did not challenge the decrees passed by the
appellate Authority, with the result that the respondent succeeded finally and
conclusively against those 2 tenants.
The position which thus emerged for the first
time when the civil revision petition was being argued before the High Court
was that, the landlord had succeeded finally in obtaining orders for eviction
against 3 out of the 4 tenants on the ground floor and 1 out of the 3 tenants
on the first floor. This position had undoubtedly brought about a change in the
state of affairs which existed at the inception of the ejectment proceedings
and which existed partly during the tendency of the proceedings before the
Appellate Authority. Erasing himself on the change in the factual position
which had come about after the Appellate Authority gave its decision, the
appellant argued before the High 110 Court that the subsequent events ought to
be taken into account for the purpose of finding out whether the landlord still
required the shop premises in possession of the appellant, which, it would
appear, admeasure about 308 square feet. That contention was brushed aside by
the High Court with the short order extracted above.
No authority is needed for the proposition
that, in appropriate cases, the Court must have regard to events as they
present themselves at the time when it is hearing the proceeding before it and
mould the relief in the light of those events. We may, however, draw attention
to a decision of this Court in Hasmat Rai v. RaghuC nath Prasad,(l) the ratio
of which may be stated thus:
When an action is brought by a landlord for
the eviction of a tenant on the ground of personal requirements, the landlord's
need must not only be shown to exist at the date of the suit, but it 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 landlord, the
court has to examine and evaluate those events and mould the decree
accordingly. The tenant is entitled to show that the need or requirement of the
landlord no more exists by pointing out such subsequent events, to the court,
including the appellate court. In such a situation, it would be incorrect to
say that as a decree or order for eviction is passed against the tenant, he
cannot invite the Court to take into consideration subsequent events. The
tenant can be precluded from so contending only when a decree or order for
eviction has become final. (See pages 606-607).
Justice R.S. Pathak, who concurred with
Justice D.A. Desai and Justice Venkataramiah, expressed the same view thus:
It is well settled now that 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 to
the contrary, the requirement must (1) [1911] 3 S.C.R. 605 111 continue to
exist on the date when the proceeding is finally A disposed of either in appeal
or revision, by the relevant authority. That position is indisputable. (See
page 624).
The High Court having failed to consider the
circumstances which had arisen before it for the first time, it becomes our
duty to have regard to them. Having considered the evidence in the case,
particularly the fact that the landlord has obtained decrees for possession
against 3 out of the 4 tenants on the ground floor and 1 out of the 3 tenants
on the first floor, we do not see any justification for evicting the appellant
from the premises in his occupation. The landlord's requirement, such as it is,
is more than adequately met by the eviction of those 4 tenants.
It is doubtful whether the respondent would
have at all succeeded in any one of the 7 cases if, the trial court had
correctly appreciated the effect of suppression of the material documentary
evidence by him. But, the eviction decrees passed against 6 out of the 7
tenants are now an accomplished fact and those matters, having been finally
determined, cannot be reopened.
For these reasons, we allow this appeal and
set aside the judgments of the High Court, the Appellate Authority and the trial
Court. The respondent's petition for eviction of the appellant will stand
dismissed.
Respondent shall pay to the appellant the
costs of all the three Courts, which we quantify at rupees five thousand. F
S.R. Appeal allowed.
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