Sheshambal
(Dead) Through L.R.S. VS. M/S. Chelur Corporation Chelur Bld. & Ors. [2010]
INSC 135 (17 February 2010)
Judgment
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICITION CIVIL APPEAL NO. 565 OF
2005 Seshambal (dead) Through L.Rs. ...Appellants Versus M/s Chelur Corporation
Chelur Building & Ors. ...Respondents
T.S.
THAKUR, J.
1.
This appeal by Special Leave arises out of an order passed by the
High Court of Kerala at Ernakulam whereby C.R.P. No.558 of 1994 has been
dismissed and the orders passed by the Rent Controller and the Rent Control
Appellate Authority dismissing the eviction petition filed against the tenant
wife affirmed. In a nutshell, the facts giving rise to the controversy are as
under:
2.
Late Shri K. Sachindanda Iyer and his wife late Smt. A Sheshambal
Sachindanda Iyer owners of the premises in dispute let out the same to
respondent No.1 for a period of three years in terms of a lease dated 12th
April, 1983. On the expiry of the lease period the owners filed RCP No.116 of
1986 before the Rent Controller at Ernakulam seeking eviction of the
tenant-occupant on the ground that they required the same for their bona fide
personal occupation within the meaning of Section 11(3) of the Kerala Buildings
(Lease and Rent Control Act), 1965. The prayer for eviction was opposed by the
tenant, inter alia, on the ground that the owners did not require the demised
premises and that the tenant would find it difficult to shift its business to
any other premises on account of non-availability of a suitable accommodation
for being so. The Rent Controller eventually came to the conclusion that the
owners had failed to establish their bona fide requirement of premises. The
Rent Controller held that the owners had shifted their residence from Cochin and
were living with their daughter and son-in-law who were running a nursing home
in that city.
3.
Aggrieved by the order passed by the Rent Controller, the owners
appealed to the Appellate Authority who affirmed the decision taken by the Rent
Controller holding that the owners were residing with their daughter and
son-in-law at Ernakulam in a building owned by the owners. The Appellate
Authority also found that the owners had a cottage at Kodaikanal and that being
fairly old had no reason to shift back to Ernakulam in search of better medical
facilities especially when their own son-in-law was running a nursing home at
Coimbatore where such facilities were available to them. Absence of any medical
evidence to show that the owners suffered from any illness was also cited as a
ground for dismissal of the prayer for eviction.
4.
Aggrieved by the orders passed by the Rent Controller and the
Appellate Authority the owners brought up the matter before the High Court of
Kerala in a revision with a view to have the concurrent findings recorded by
the Courts below set aside. The High Court, as noted earlier, has refused to
intervene in the matter and dismissed the revision petition.
The High
Court held that it was not expected to reappraise the evidence produced by the
parties in the exercise of its revisional jurisdiction and that the limited
question that fell for its consideration was whether the procedure followed by
the Rent Controller and the Appellate Authority was illegal, irregular or
improper. The High Court noted that the rent of the premises paid by the tenant
had not been revised since the year 1973. The same was, therefore, enhanced to
Rs.10,000/- p.m. w.e.f. 1.11.2003 onwards with liberty to the parties to
approach the competent Court for fixation of fair rent for the demised
premises. The present appeal, as seen earlier, calls in question the
correctness of the above orders.
5.
It is not in dispute that during the pendency of the revision
petition before the High Court the landlord Shri K. Sachindanda Iyer passed
away on 24th April, 1996 leaving behind his wife Smt. A. Sheshambal Sachindanda
Iyer as the sole revision petitioner seeking eviction of the respondent-
tenant. Consequent upon the dismissal of the revision petition the present
appeal was filed by Smt. A. Sheshambal Sachindanda Iyer alone who too passed
away before this appeal could be heard for final disposal. IA No.7/2008 filed
on 14th November, 2008 sought substitution of the legal representatives of the
appellant on the basis of a Will left behind by the deceased according to which
the property in question has to devolve upon the three daughters left behind by
the deceased. It is common ground that two of the daughters are living in India
one each at Coimbatore and Bihar the third daughter is settled in America.
6.
The short question that was, in the above backdrop, argued by
learned counsel for the parties at considerable length was whether the
proceedings instituted by the deceased-owners of the demised property could be
continued by the legal heirs left behind by them. Mr. K.V. Vishwanathan,
learned senior counsel, appearing for the legal heirs of the deceased-appellant
contended that it was permissible for the legal heirs to continue the present
proceedings and seek eviction of the tenant on the basis of the requirement
pleaded by the erstwhile owners in the eviction petition filed by them.
The
rights and obligations of the parties, argued Mr. Vishwanathan, get
crystallized as on the date of the filing of the petition. Any subsequent
development, according to the learned counsel, would be irrelevant to the
maintainability or the continuance of the proceedings after the death of the
original petitioners. Reliance in support of that submission was placed by the
learned counsel upon the decisions of this Court in Shamshad Ahmad vs. Tilak
Raj Bajaj (2008 (9) (1976 (4) SCC 417).
7.
On behalf of the respondent-tenants Mr. L. Nageswara Rao, learned
senior counsel, placed heavy reliance on the Motor and General Traders (1975
(1) SCC 770), Om Supp (3) SCC 698). It was argued by Mr. Rao that the legal
position as to whether the Court could take note of the subsequent developments
stood settled by the above decisions which left no manner of doubt that all
such developments as have an impact on the rights and obligations of the
parties must be taken into consideration by the Court and the relief suitably
moulded.
8.
The eviction petition, as noted earlier, was filed in terms of
Section 11(3) of the Kerala Buildings (Lease and Rent Control Act), 1965, which
reads:
"Section
11(3): A landlord may apply to the Rent Control Court for an order directing
the tenant to put the landlord in possession of the building if he bona fide
needs the building for his own occupation or for the occupation by any member
of his family dependent on him.
Provided
that the Rent Control Court shall not give any such direction if the landlord
has another building of his own in his possession in the same city, town or
village except where the Rent Control Court is satisfied that for special
reasons, in any particular case it will be just and proper to do so;
Provided
further that the Rent Control Court shall not give any direction to a tenant to
put the landlord in possession, if such tenant is depending for his livelihood
mainly on the income derived from any trade or business carried on in such
building and there is no other suitable building available in the locality for
such person to carry on such trade or business:
Provided
further that no landlord whose right to recover possession arises under an
instrument of transfer inter vivos shall be entitled to apply to be put in
possession until the expiry of one year from the date of the instrument:
Provided
further that if a landlord after obtaining an order to be put in possession
transfer his rights in respect of the building to another person, the
transferee shall not be entitled to be put in possession unless he proves that
he bona fide needs the building for his own occupation or for the occupation by
any member of his family dependent on him."
9.
It is not in dispute that in the eviction petition the owners had
pleaded their own requirement for the premises to be occupied by them for
residential as well as commercial purposes. The eviction petition was totally
silent about the requirements of any member of the family of the owners-
petitioners leave alone any member of their family who was dependent upon them.
That being so the parties went to trial before the Rent Controller on the basis
of the case pleaded in the petition and limited to the requirement of the
owners for their personal occupation. Neither before the Rent Controller nor
before the Appellate Authority was it argued that the requirement in question
was not only the requirement of the petitioner-owners of the premises but also
the requirement of any other member of their family whether dependent upon them
or otherwise. Not only that, even in the petition filed before this Court the
requirement pleaded was that for the deceased-widowed owner of the demised
premises and not of any member of her family. Super added to all this is the
fact that the legal representatives who now claim to be the family members of
the deceased are all married daughters of the deceased couple each one settled
in their respective matrimonial homes in different cities and at different
places.
That none
of them was dependent upon the deceased- petitioner is also a fact undisputed
before us. Even otherwise in the social milieu to which we are accustomed,
daughters happily married have their own families and commitments financial and
otherwise. Such being the position we find it difficult to see how the legal
representatives of the deceased- appellant can be allowed to set up a case
which was never set up before the Courts below so as to bring forth a
requirement that was never pleaded at any stage of the proceedings.
Allowing
the legal heirs to do so would amount to permitting them to introduce a case
which is totally different from the one set up before the Rent Controller the
Appellate Authority or even the High Court. The position may indeed have been
differentiated if in the original petition the petitioner-owners had pleaded
their own requirement and the requirement of any member of their family dependent
upon them. In such a case the demise of the original petitioners or any one of
them may have made little difference for the person for whose benefit and bona
fide requirement the eviction was sought could pursue the case to prove and
satisfy any such requirement.
10.
Confronted with the above position Mr. Vishwanathan made in
generous submission. He contended that the rights and obligations of the
parties get crystalized at the time of institution of the suit so that any
subsequent development is not only inconsequential but wholly irrelevant for
determination of the case before this Court. Learned counsel sought to extend
that principle to the case at hand in an attempt persuade us to shut out the
subsequent event of the death of the original petitioners from consideration.
We regret to say that we do not see any basis for the submission so vehemently
urged before us by Mr. Vishwanathan. While it is true that the right to relief
must be judged by reference to the date suit or the legal proceedings were
instituted, it is equally true that if subsequent to the filing of the suit,
certain developments take place that have a bearing on the right to relief
claimed by a party, such subsequent events cannot be shut out from
consideration. What the Court in such a situation is expected to do is to
examine the impact of the said subsequent development on the right to relief
claimed by a party and, if necessary, mould the relief suitably so that the
same is tailored to the situation that obtains on the date the relief is actually
granted. That proposition of law is, in our view, fairly settled by the
decisions of this Court in Pasupuleti Venkateswarlu case (supra). Krishna Iyer
J. (as His Lordship then was) has in his concurring judgment lucidly summed up
legal position in the following words:
"....................If
a fact, arising after the lis has come to court and has a fundamental impact on
the right to relief or the manner of moulding it, is brought diligently to the
notice of the tribunal, it cannot blink at it or be blind to events which
stultify or render inept the decretal remedy. Equity justifies bending the
rules of procedure, where no specific provision or fairplay is violated, with a
view to promote substantial justice - subject, of course, to the absence of other
disentitling factors or just circumstances. Nor can we contemplate any
limitation on this power to take note of updated facts to confine it to the
trial court. If the litigation pends, the power exists, absent other special
circumstances repelling resort to that course in law or justice. Rulings on
this point are legion, even as situations for applications of this equitable
rule are myriad.
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 cognisance of
events and developments subsequent to the institution of the proceeding
provided the rules of fairness to both sides are scrupulously
obeyed............."
11.
To the same effect is the decision of this Court in Om Prakash
Gupta's case (supra) where the Court declared that although the ordinary rule
of civil law is that the rights of the parties stand crystalised on the date of
the institution of the suit yet the Court has power to mould the relief in case
the following three conditions are 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; and (iii) that such subsequent
event is brought to the notice of the court promptly and in accordance with the
rules of procedural law so that the opposite party is not taken by
surprise......"
12.
In Hasmat Rai's case (supra), this Court observed that if the
tenant is in a position to show 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 upon the same.
13.
To the same effect is the decision of this Court in Baba Kashinath
Bhinge's case (supra) where relying upon the decision in Hasmat Rai's case
(supra) this Court held that in a case of bona fide requirement it is necessary
to establish that the landlord needs the premises and the need subsists till a
decree is passed in his favour. In a case where such need is available at the
time of the filing of the petition but becomes extinct by the time the matter
attains finality in appeal for revision no decree will be justified. For that
purpose the Court should take all the subsequent events into consideration and
mould the relief accordingly. Following passage provides a complete answer to
the question raised before us:
"Equally
it is settled by this Court in series of judgments and a reference in this
behalf would be sufficient by citing Hasmat Rai v. Raghu Nath Prasad that in a
case of bona fide requirement, it is always necessary, till the decree of
eviction is passed that the landlord should satisfy that the need is bona fide
and the need subsists. In a case where the need is available at the time of filing
the petition, but at the time of granting decree it may not continue to
subsist, in that event, the decree for eviction could not be made. Similarly
pending appeal or revision or writ petition, the need may become more acute.
The court should take into account all the subsequent events to mould the
relief. The High Court may not be justified in omitting to consider this aspect
of the matter but that does not render the judgment illegal for the subsequent
discussion we are going to make."
(emphasis
supplied) Kesho Ram (1992 Supp (2) SCC 623) where Venkatachaliah, J. (as His
Lordship then was) expressed a similar view in the following words:
"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."
14.
Similarly, in Maganlal's case (supra) all that this Court held was
that if the litigation keeps extending and number of developments sprouting up
during the long interregnum, the Court should adopt a pragmatic approach in the
matter and determine whether or not the development pending finalization of the
litigation is such as would completely non-suit the party concerned. This
decision is, in our view, no authority for this proposition that subsequent
developments having material impact on the rights and obligations of the
parties can be ignored by a Court simply because such rights and obligations
have to be determined by reference to the date on which the litigation was
instituted.
15.
The decision of this Court in Kedar Nath Agrawal (dead) (8) SCC
76) has reiterated the legal position after a detailed review of the case law
on the subject. That was also a case where two applicants seeking eviction of
the tenant had passed away during the pendency of the eviction petition and the
question was whether the three married daughters left behind by the couple
could continue with the same. This Court observed:
16.
In view of the settled legal position as also the decisions in
Pasupuleti Venkateswarlu5 and Hasmat Rai1, in our opinion, the High Court was
in error in not considering the subsequent event of death of both the
applicants. In our view, it was power as well as the duty of the High Court to
consider the fact of death of the applicants during the pendency of the writ
petition. Since it was the case of the tenant that all the three daughters got
married and were staying with their in-laws, obviously, the said fact was relevant
and material....."
17.
The decisions of this Court in Pratap Rai Tanwani's case (supra),
Gaya Prasad's case (supra), Kamleshwar Prasad's case (supra), Shakuntala Bai's
case (supra), G.C. Kapoor's Padma Kashypa (1990 (2) SCC 431) do not, in our
opinion, lend any support to the proposition that subsequent developments
cannot be noticed by the Court especially when such developments have an impact
on the right of a party to the relief prayed for.
18.
We may in particular refer to the decision of this Court in
Shantilal Thakordas's case (supra) in which this Court had overruled the
earlier decision rendered in Phool Rani & Ors.the law permitted the
eviction of the tenant for the requirement of the landlord for occupation of
the landlord as residence for himself and members of his family and that such a
requirement was both of the landlord and the members of his family so that upon
the death of this landlord the right to sue survived to the members of the
family of the deceased.
That is
not the position in the instant case. As noticed earlier, the requirement
pleaded in the eviction petition by the original petitioners was their own
personal requirement and not the requirement of the members of their family
whether dependant or otherwise. Indeed if the deceased landlords had any
dependant member of the family we may have even in the absence of a pleading
assumed that the requirement pleaded extended also to the dependant member of
their family. That unfortunately, for the appellants is neither the case set up
nor the position on facts. The deceased couple did not have any dependant
member of the family for whose benefit they could have sought eviction on the
ground that she required the premises for personal occupation.
19.
In the light of what we have stated above, we have no hesitation
in holding that on the death of the petitioners in the original eviction
petition their right to seek eviction on the ground of personal requirement for
the demised premises became extinct and no order could on the basis of any such
requirement be passed at this point of time.
20.
There is one other aspect to which we must advert at this stage.
The High Court had, while disposing of the revision petition filed before it,
come to the conclusion that the demised premises is large and located in a
popular commercial area of the city of Cochin. It has found that the rent for
the premises was very low and had not been revised since the year 1973. The
High Court accordingly revised the rent to Rs.10,000/- per month payable w.e.f.
1.11.2003 onwards leaving it open to the parties to get the fair rent
determined for the demised premises.
21.
During the pendency of this appeal, the appellants had filed an
application seeking a direction against the respondent for payment of rent @
Rs.50,000/- per month. The application supported by an affidavit, inter-alia,
alleges that the market rent of the premises in question was not less than
Rs.50,000/- per month as in September 2005 when the application was filed. A
Valuation Certificate issued by Shri K. Radhakrishnan Nair, Chartered Engineer
& Approved Valuer, is also enclosed with the application, according to
which the market value of the plot in question was not less than Rs.7,00,000/-
per cent and the current market rent for the building not less than Rs.8/- per
square feet. As per the lease deed entered between the deceased owners and the
respondents, the premises in question is constructed over an area measuring
about 20 cents. The covered area is said to be 5000 sq. ft. or so. In the
circumstances while the High Court was justified in tentatively revising the
rent for the premises, the revision was not, in our opinion, adequate. Keeping
in view the totality of the circumstances, we are of the view that instead of
Rs.10,000/- determined by the High Court, the respondents shall pay Rs.15,000/-
per month towards rent w.e.f. 1.11.2003. The same shall stand revised to
Rs.25,000/- per month w.e.f.1.1.2009. The differential amount thus payable
shall be deposited by the respondents before the Rent Controller within six
months from today whereupon the Rent Controller shall take steps to disburse
the same to the appellants, the current owners of the premises. Needless to say
that the revision ordered by us is also tentative and shall not prevent the
parties from seeking determination of the fair rent for the premises by
instituting proceedings before the competent Court/authority in accordance with
law.
22.
With the above modification, this appeal is disposed of leaving
the parties to bear their own costs.
.................................J.(MARKANDEY KATJU)
.................................J.
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