Allahabad High Court
Kishan Lal And Ors. vs Xiith A.D.J. And Anr. on 15 April, 2005
Equivalent citations: 2005(3)AWC2856
Author: Mukteshwar Prasad
Bench: Mukteshwar Prasad
JUDGMENT Mukteshwar Prasad, J.
1. This petition under Article. 226 of the Constitution of India has been filed by the tenants for quashing the judgment and order dated 17.8.1996, passed by Additional District Judge, Meerut (Annexure-4 to the writ petition), whereby Rent Control Appeal No. 455 of 1991 was allowed and order-dated 25.11.1991, passed by the prescribed authority was set aside and application for release under Section 21(1) of U. P. Act No. XIII of 1972 was allowed.
2. Heard Km. Anuradha Asthana, holding brief of Sri R. K. Asthana, learned counsel for the petitioners and Sri Amitabh Agrawal, holding brief of Sri P. K. Jain, learned counsel for the respondents.
3. With the consent of the learned counsel for the parties, this petition is being disposed of finally at this stage.
4. Brief facts, giving rise to this petition are as under :
Admittedly, the petitioners resided on the ground floor of House No 188 situate at Arvindpuri, Meerut, as tenants and paid Rs. 37.50 P. per month as rent to their landlord-respondent No. 2. The tenanted accommodation consisted of three rooms, kitchen, bathroom, verandah and open courtyard on the ground floor. The family of landlord had four members including his wife and two major sons Smt. Kamal Agnihotri, wife of the landlord, was suffering from high blood pressure and had developed a gout (pain in her knees) and she had been advised bed rest and not to go upstairs. The landlord had settled the married of his elder son, Neeraj also and wanted to provide him a separate room. The younger son was a student of class XI and needed a room for the purpose of his studies. The petitioner No. 1 was occupying a room in Meerut Cantt. which was provided to him by Ganga Motors Committee, Bhasali. The need for additional accommodation on the ground floor for the landlord was real, bona fide and pressing. Hence, landlord requested his tenants to vacate the portion in their possession but they paid no attention. The landlord alleged that he was an educated and reputed man and as such, needed one drawing room and one room for himself and wife and one room for his elder son and another room for his younger son.
5. The tenants-petitioners contested the release application on the grounds inter alia that the application for release was mala fide and was moved with a view to enhance the rent to Rs. 100 per month, They, however, admitted, that landlord had a baithaka towards road on the ground floor and Durga Dutt Shastri was a tenant on the first floor. The petitioners denied that the landlord's wife was suffering from serious ailment or had problem in going upstairs. It was also pleaded that landlord's elder son had married and had joined Government job in Delhi and had got a suitable accommodation there. It was admitted by the petitioners that a small room has been allotted to petitioner No. 1 by the Committee for discharging his duties and the requirement of landlord was not bona fide and the petitioners would suffer more hardship than the landlord in case the release application is allowed.
6. The parties filed affidavit in support of their case and led documentary evidence also.
7. After having considered the evidence on record led by the parties and arguments advanced on their behalf, learned prescribed authority found that the requirement of additional accommodation by the landlord was real, bona fide and pressing. It was, however held that the tenants would suffer great hardship than the landlord and with these findings, the application for release was dismissed.
8. Aggrieved by the aforesaid judgment and order passed by the prescribed authority, the landlord filed an appeal, which was allowed, and the application for release was also allowed The appellate court confirmed the finding of the prescribed authority on the ground that the requirement of landlord for additional accommodation was quite genuine and bona fide. The appellate court disagreeing with the finding of the Court below on the point of comparative hardship found that the landlord would suffer great hardship in case the prayer for release was refused and as such, the appeal was allowed.
9. Learned counsel for tenants-petitioners has assailed the judgment of the appellate court mainly on the grounds that the prescribed authority had rightly held that the petitioners would suffer great hardship in case they were evicted from the accommodation in dispute as they have a large family and they have no means to purchase a house in the city of Meerut. According to him, the appellate court did not take into consideration the subsequent events although an application supported by affidavit was moved alleging therein that the big room on the first floor of the house in question which was in occupation of Durga Dutt was vacated and landlord with his family had occupied the accommodation for the purpose of their residence. It was contended that need of the petitioners for the accommodation in question was bona fide and they would suffer great hardship in comparison to landlord.
10. Reliance was placed by petitioners' counsel on the following decisions :
(1) Kedar Nath Agarwal (dead) and Anr. v. Dhanraji Devi (dead) by L.Rs. and Anr., 2004 (4) AWC 3709 (SC) : 2004 (2) ARC 764 (SC).
(2) Shipping Corporation of India Ltd. v. Machado Brothers, .
(3) Gaya Prasad v. Pradeep Srivastava, .
11. On the other hand, learned counsel for landlord has supported the judgment passed by the court below and contended that both the prescribed authority as well as Additional District Judge clearly held that the requirement of additional accommodation by the landlord was bona fide and genuine and after considering the evidence of the parties in detail as well as decisions relied upon, the appellate court set aside the findings of the prescribed authority on the point that tenants would suffer great hardship in comparison to landlord. He placed reliance on the following three decisions of Supreme Court :
(1) Surya Dev Rai v. Ram Chander Rai, 2003 (2) ARC 385.
(2) Ranjeet Singh v. Ravi Prakash, .
(3) Arun Kumar Sinha v. State of West Bengal, .
12. I have considered the submissions made on behalf of the parties and have gone through the decisions relied upon by them. After having considered the rival contentions of the parties, I find that contention of the petitioner's counsel is not well founded and cannot be accepted and appellate court committed no illegality in allowing the appeal as well as application for release. As mentioned above, the requirement of additional accommodation by landlord on the ground floor (of the portion in possession of the petitioners) was found to be real and bona fide by the Courts below and there is concurrent finding of the prescribed authority as well as appellate authority. This finding was arrived at after proper appraisal of the evidence led by the parties. The prescribed authority, however, found that the petitioners had very large family and are poor person and as such they would suffer more hardship than landlord but the appellate court did not agree with this conclusion of prescribed authority that the landlord would suffer more hardship. He placed reliance on a decision of this Court in P.R. Narang v. District Judge, Dehradun and Ors., 1992 (1) ARC 18.
13. Admittedly, when the petitioners filed their written statement/objection before the prescribed authority, respondent's family consisted of five members, including him, his wife, two sons, and daughter-in-law and he had a small baithak only on the ground floor. In the counter-affidavit filed on behalf of the landlord-respondent, it was stated that wife of the petitioner, Smt. Nanhi Devi expired on 6.6.1998, i.e., after the impugned judgment and order was passed. It was also claimed that both the sons of landlord got married during pendency of the application in the Court below and in this Court. In the Supplementary Affidavit, it was asserted by the landlord that elder son of respondent was blessed with two sons during pendency of the writ petition in this Court and a copy of Pariwar Register was filed. The petitioners filed rejoinder-affidavit admitting therein that there are 13 members in all in the family of petitioners. On the other hand, landlord-respondent has nine members in all and accommodation in their possession is more than sufficient. Smt. Nanhi Devi was the first wife of petitioner No. 1 and his second wife is still alive. The landlord had filed his affidavit in the appellate court to the effect that one room, which was in occupation of Durga Dutt Joshi on the second floor, fell down and as such, he vacated the room and that room was not fit for residence. The Apex Court in the case of Kedar Nath Agarwal (dead) and Anr. v. Dhanji Devi, (supra) clearly held that law is well settled on the point and it is this. The basic rule is that rights of the parties should be determined on the basis of date of institution of the suit or proceeding and the suit/action should be tried at all stages on the cause of action as it existed at the commencement of the suit/action. This, however, does not mean that events happening after institution of a suit/proceeding cannot be considered at all. It is the power and duty of the Court to consider changed circumstances. A Court of law may take into account subsequent events, inter alia, in the following circumstances :
(i) The relief claimed originally has by reason of subsequent change of circumstances become inappropriate ; or
(ii) It is necessary to take notice of subsequent events in order to shorten litigation ; or
(iii) It is necessary to do so in order to do complete justice between the parties.
14. I have also gone through the decision of Supreme Court in Shipping Corporation of India, (supra) and Gaya Prasad, (supra), I find that subsequent events can be taken into consideration in the above-mentioned circumstances. So far as the facts of this case are concerned, it is clear that need of additional accommodation by the landlord is not completely eclipsed. The application was filed mainly on the ground that the wife of landlord was an old lady having hypertension, diabetes and continuous pain in her knees and was advised by the doctor not to go upstairs. The landlord, therefore, needed accommodation in possession of tenants situate at first floor. Admittedly, number of family members of landlord has increased since filing of the petition and he requires more accommodation to accommodate his family members. The wife of respondent No. 2 is still alive. She must have become older during the last 15 years. The application was filed in the year 1990, she must have developed more complications. I, therefore, hold that the court below committed no illegality or perversity in recording finding that need for additional accommodation on the ground floor was real and genuine. So far as the comparative hardship is concerned, in view of increase in number of members of family of the landlord during last 15 years, it is quite obvious that the landlord would suffer more hardship than the petitioners in case this petition is allowed and application for release is dismissed. In my opinion, the finding of the appellate court does not suffer from any error of law and is not perverse. Now, it is well-settled that High Court cannot act like an appellate court and re-appreciate evidence while exercising certiorari jurisdiction. It was also held that even if two opinions on the same material are reasonably possible, the finding arrived at one way or other cannot be called a patent error.
15. For the reasons stated above, I hold that this petition lacks merit and is liable to be dismissed. I find no ground to interfere with the judgment of court below impugned in this petition.
16. In the result, the petition fails and is dismissed. However, there will be no order as to costs.