Kamleshwar
Prasad Vs. Pradumanju Agrawal [1997] INSC 377 (2 April 1997)
K.
RAMASWAMY, G.B. PATTANAIK
ACT:
HEADNOTE:
PATTANAIK,
J.
Leave
Granted.
This
appeal by special leave to appeal is directed against the judgment dated
17.2.1997 of the Allahabad High Court dismissing the writ petition filed by the
appellant.
The
respondent landlord field a petition for eviction to the appellant under
Section 21(1)(a) of the U.P. Act XIII of 1972 inter alia on the ground at the
bona fide requires the premises for carrying on his own business and he has no
other means of livelihood. The tenant - appellant filed objections before the
prescribed authority stating there in that the application for eviction has
been filed on false and baseless allegation and in fact the respondent does not
need the premises bona fide for starting his own business.
The
prescribed authority on consideration of the materials on record came to the
conclusion that the landlord does not require the premises for his own use bonafide.
The said prescribed authority also came to the conclusion that the tenant would
be comparatively harrassed if an order of eviction for eviction having been
rejected, the landlord preferred an appeal. The appellate authority
re-appreciated the entire evidence on record and reversed the conclusion of the
prescribed authority. The said appellate authority came to the conclusion that
in the facts and circumstances to the case of the requirement of the landlord
to start a cloth bushiness must be a bona fide requirement entitling him to get
an order of eviction under Section 21(1)(a) of the Act.
The
appellate authority, therefore, set aside the order of the prescribed authority
and directed eviction of the appellant. Being aggrieved by the order of the
appellate authority, the tenant carried the matter to the High Court by filing
a writ petition. During the pendency of the writ petition in the High Court the
landlord died and was substituted by his legal heirs namely his widow, two sons
and the married daughter. On behalf of the tenant, it was urged before the High
Court that the landlord having died, the bona fide requirement which was found
to have existed by the appellate authority no more survives, and therefore,
taking into consideration the subsequent event the High Court must quash the
order of eviction passed by the appellate authority. On behalf of the landlord
it was contended that the order of the appellate authority in the eviction
proceeding, is a decree and the decree having become final, In a proceeding
under Article 226 of the Constitution, the High Court will not be entitled to
take into consideration any subsequent event that had occured and no that score
it would not be appropriate for the High Court to interfere with the decree
passed by the appellate authority. It was also contended that the requirement
in question must exist on the day the application for eviction was filed and
the same requirement having been found to be established by the competent forum
who was required to go into the said question, it is no longer open to the High
Court to interfere with the said finding in exercise of its supervisory
jurisdiction under Article 226 of the Constitution. The High Court by the
impugned judgment came the conclusion that the decree for eviction has become
final and the said finality cannot be disturbed on the application under
Article 226 of the Constitution by taking into account the facts that the
original landlord died during the pendency of the writ petition.
Mr. Manoj
Swarup, learned counsel appearing for the appellant in this Court urged that
the person for whose bona fide requirement the order of eviction has been
passed by the appellate authority having died during the pendency of the writ
petition. The said bonafide requirement no longer subsists and consequently the
High Court should have taken that fact into consideration and should have
interfered with the order passed by the appellate authority for the eviction of
the tenant. The learned counsel further urged that no doubt the proceedings
under Article 226 of the Constitution is not a continuation of the eviction
proceedings under the Act, but all the same the High Court while exercising its
power of supervisions under Article 226 of the Constitution is not denuded of
its power to take into consideration the subsequent event that had happened
which is necessary to be taken into consideration in the interest of justice.
Accordingly,
The High Court committed serious error in not taking into account the facts of
the death of the landlord for whose bona fide requirement the order of eviction
had been passed by the appellate authority, and therefore, this Court should
interfere with the said order of the High Court. Having given and anxious
consideration to the contention raised by the learned counsel for the appellant
and under the facts and circumstances of this case we are of the considered
opinion that this case does not warranted interference by this Court under
Article 136 of the constitution. Under the Act the order of the appellate
authority is final and the said order is a decree of the civil court and decree
to a competent Court having become final cannot be interfered with by the High
Court in exercise of its power of superintendence under Article 226 and 227 of
the Constitution by taking into account any subsequent event which might have
happened. That apart, the fact that the landlord needed the premises is
question for starting a bushiness which fact has been found by the appellate
authority. In 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 elder
son. In this view to the matter, we find no force in the contention of Mr, Manoj
Swarup, learned counsel appearing for the appellant and we do not find any
error in the impugned judgment of the High Court under Article 136 of the
Constitution. The appeal, accordingly, fails and is dismissed but in the
circumstances without any order as to costs.
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