Punjab-Haryana High Court
Raj Kumar Vij vs Hem Raj Singla And Ors. on 25 July, 2007
Equivalent citations: (2008)149PLR618
JUDGMENT Vinod K. Sharma, J.
CM. No. 3412-CII of 2007.
1. For the reasons stated in the application, the order dated 14.2.2007 is recalled and the case is restored to its original number.
CM. stands allowed.
C.R. No. 6748 of 2001 The present revision petition has been filed against the order of eviction passed by the learned Rent Controller and affirmed by the learned appellate authority.
2. The landlord respondent had filed a petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as 'the Act') for eviction of the petitioner from the premises situated at Sirhind Mandi, Tehsil and District Fatehgarh Sahib. The case set up by the respondent-landlord was that petitioner was tenant in a portion of the house on a monthly rent of Rs. 100/- (Rs. one hundred only) and the tenant was in arrears of rent. It was also claimed that the petitioner tenant had made material alterations in the tenanted premises. A ground of personal necessity was also taken. ¦ The application was contested and on the pleadings of the parties, the following issues were framed:
1. Whether the tender made by the respondent on the first date of hearing is not valid? OPA 1-A. Whether the premises in dispute is required to the petitioner for her personal. necessity? OPA
2. Whether the respondent has materially changed the value and utility of the demised premises? OPP
3. Whether the petition is not maintainable? OPR
4. Relief.
3. As tender having been made, issue No. l was not pressed whereas landlord respondent did not press eviction on the ground of material impairment of value and utility of the demised premises. The case was contested only on issue No. 1-A. The learned Rent Controller found the need to be bona fide and ordered ejectment of the petitioner from the premises in dispute. The petitioner went in appeal before the appellate authority. During the pendency of the appeal Smt. Shanti Devi landlord of the premises, for whom premises was sought, died. The petitioner, therefore, contend that due to the subsequent event the order of ejectment passed against the petitioner is not sustainable. However, the said plea was rejected by the learned appellate authority for the reason that by the death of landlord during the pendency of the petition the requirement does not cease to exist and other senior members of the family can continue the proceedings and execute the order of ejectment and take possession from the tenant. The Court also took note of the fact that no party could be given benefit for the delay on account of proceedings in the Court to give benefit to one of the party. The contention of the learned Counsel for the petitioner that the landlord had failed to prove even bona fide requirement, was also rejected. The primary ground for that was that it was for the landlord to decide as to how to she has to live and not for the tenant or the Court to form its opinion. The learned Counsel appearing on behalf of the petitioner has challenged the order passed by the learned Rent Controller and affirmed by the appellate Authority primarily on the ground that the authorities below have failed to take into consideration the subsequent events. The contention of the learned Counsel for the petitioner is that eviction (petition) was filed for personal requirement of Smt. Shanti Devi alone and not for other family members and thus with the death of Smt. Shanti Devi the purpose of seeking eviction was lost. In support of this contention he has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Kedar Nath Agrawal (dead) and Anr. v. Dhanraji Devi (dead) by LRs. and another , wherein it has been held that:
13. The question then remains as to effect of subsequent events. It is not in dispute between the parties that during the pendency of the writ petition before the High Court, both the applicants died and their three daughters were brought on record. It is also not in dispute that all the three daughters are married and they are at their marital homes with their in-laws. In view of the said fact an argument was advanced on behalf of the tenants before the High Court that the said circumstance was an eloquent one and must be taken into account which had occurred during the pendency of the proceedings which would affect the final outcome. According to the tenants, in view of death of both the applicants, the requirement as pleaded by the applicants in the application did not survive and the application was liable to be rejected. It was the power and the duty of the High Court to take into account subsequent events which emerged during the pendency of the writ petition and pass an appropriate order taking into consideration such development. In support of the said contention, reliance was placed by the learned Counsel on several decisions of this Court.
16. In our opinion, by not taking into account the subsequent event, the High Court has committed an error of law and also an error of jurisdiction. In our judgment, the law is well settled on the point, and it is this: the basic rule is that the rights of the parties should be determined on the basis of the 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.
4. In this very judgment the Hon'ble Supreme Court has been pleased to lay down that ground for personal necessity must continue to exist till the final determination of the case. He has further placed reliance on the judgment of this Court in the case of Om Parkash Uppal of Sonepat v. Desh Raj of Sonepat 1986(2) R.C.R. (Rent) 320, which is to the similar effect.
5. The learned Counsel for the petitioner further argued that in the present case the respondent-landlord had failed to prove the bona fide necessity for the reason that the landlady had failed to appear in the witness box and, therefore, the evidence of the attorney qua her personal need could not be taken into consideration. In support of this contention he has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Janki Vashdeo Bhojwani and Anr. v. Indusind Bank Ltd. and Ors. , wherein the Hon'ble Supreme Court has been pleased to lay down as under:
12. Order III, Rules 1 and 2 C.P.C., empowers the holder of power of attorney to "act" on behalf of the principal. In our view the word "acts" employed in Order III, Rules 1 and 2 CPC, confines only in respect of "acts" done by the power of attorney holder in exercise of power granted by the instrument. The term "acts" would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some "acts" in pursuance to power or attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he can not depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined.
14. Apart from what has been stated, this Court in the case of Vidhyadhar v. Manikrao and Anr. observed at page 583 S.C.C. that "where a party to the suit does not appear in the witness-box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct.
6. The learned Counsel appearing on behalf of the respondents, however, has supported the order passed by the learned Courts below. The learned Counsel for the respondent placed reliance on the judgment of the Hon'ble Supreme Court in the case of Shakuntala Bai and Ors. v. Narayan Das and Ors. to contend that the need of the landlord is to be seen on the date of filing of suit and the subsequent events have no effect on the rights of ejectment and. thus, according to the learned Counsel for the petitioner once an order of eviction was passed the same cannot be set aside on the subsequent event.
7. The learned Counsel for the respondent further argued that the power of attorney of the landlady had appeared in the Court and supported the case and, therefore, no fault can be found with the findings recorded by the learned courts below.
8. After hearing learned Counsel for the parties, I find no force in the contention raised by the learned Counsel for the respondents. In the present case the case set up by the landlady was that the premises was required for her own personal use and occupation as her husband was stated to have died. It was also proved on record that the other legal heirs of Smt. Shanti Devi were settled at Chandigarh and Ludhiana and had not shown any intention to shift to Sirhind. So, the case set up was for her need and not for the need of other family members and, therefore, the judgment of the Hon'ble Supreme Court in the case of Kedar Nath Agrawal (dead) and Anr. v. Dhanraji Devi (dead) by LRs. and Anr. (supra) would be applicable to the facts of the present case and the judgment of the Hon'ble Supreme Court relied upon by the learned Counsel for the respondents in the case of Shakuntala Bai and Ors. v. Narayan Das and Ors. (supra) would not be applicable as in the present case legal heirs would not be entitled to maintain the order of eviction for their personal need. Even on other ground the order deserves to be set aside as, Shanti Devi had not appeared in the witness box in support of her case of bona fide requirement. It was not open to the Court to accept her plea merely on the statement of the attorney. Thus, it is not a case of bona fide necessity.
Consequently, this revision is allowed, the orders passed by the learned Courts below are set aside and the petition under Section 13 of the East Punjab Urban Rent Restriction Act is dismissed.