Rajasthan High Court - Jaipur
Nand Kishore vs Smt Janki Devi And Ors on 23 August, 2018
Author: Prakash Gupta
Bench: Prakash Gupta
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 582/2003
1. Nand Kishore S/o Shri Kanhaiya Lal (Since deceased)
through legal heirs:-
1/1. Ratan Bai W/o Late Shri Nand Kishore, Resident of 39-A,
New Colony, Gumanpura, Kota (Raj.).
1/2. Jyoti Prakash Jain S/o Late Shri Nand Kishore, Resident of
39-A, New Colony, Gumanpura, Kota (Raj.).
1/3. Jambu Kumar Jain S/o Late Shri Nand Kishore, Resident
of 39-A, New Colony, Gumanpura, Kota (Raj.).
1/4. Smt. Chandrakanta Jain D/o Late Shri Buddhi Prakash
Jain, Resident of Adarsh Nagar-A, New Suraj Marriage
Garden, Opposite Aerodrome, Sawai Madhopur (Raj.).
1/5. Bhupendra Kumar Jain S/o Late Shri Nand Kishore,
Resident of A-429, Shreenathpuram, Kota (Raj.).
1/6. Mahendra Kumar Jain S/o Late Shri Nand Kishore,
Resident of 39-A, New Colony, Gumanpura, Kota (Raj.).
1/7. Smt. Rajni Gupta D/o Late Shri Nand Kishore W/o Shri
Mahaveer Prasad Gupta, Resident of Bajrang Sadan, Near
Jat Hostel, Mohan Ji Ki Bagichi, Shyopur Kalan (MP).
1/8. Smt. Chanchal Gupta D/o Late Shri Nand Kishore,
Resident of W/o Shri Sanjay Kumar Gupta, Resident of 1-
Kha-29, Dadabadi, Kota (Raj.).
---Defendants--Appellants
Versus
1. Janki Devi W/o Dhanna Lal (Since deceased) through
legal heirs:-
1/1. Satyajeet Sharma S/o Late Shri Mohan Sharma,
1/2. Ajay Sharma S/o Late Shri Mohan Sharma,
Both are resident of 164, Vallabhbadi, Kota (Raj.).
----Plaintiffs-Respondents
2. Ramgopal Bagliwal, Office of Joint Labour Commissioner
Bhilwara, Kota.
3.
Rajendra Mehnot, Resident of Instrumentation Private
4. Limited, Kota.
Devendra Chhajer, Resident of Chhajer Bhawan, Bada
Bazar, Kota.
----Proforma Respondents
(2 of 20) [CSA-582/2003]
For Appellant(s) : Mr. Harsh Sharma on behalf of
Mr. Anil Mehta
For Respondent(s) : Mr. R.K. Agarwal, Senior Counsel
assisted by Ms. Sunita Pareek
HON'BLE MR. JUSTICE PRAKASH GUPTA
Judgment
23/08/2018
1. Under challenge is the judgment and decree dated
30.07.2003 passed by the Additional District and Sessions Judge
No.4 (hereinafter referred to as 'the appellate court') whereby the
learned first appellate court confirmed the judgment and decree
dated 13.03.2002 passed by Additional Civil Judge (Junior
Division) No.3, Kota (hereinafter referred to as 'the trial court')
and dismissed the appeal preferred by the appellants.
2. The facts giving rise to this second appeal can be briefly
summarized as thus: The respondent No.1 plaintiff Janki Devi
(since deceased, hereinafter referred to as 'the plaintiff') filed a
suit for eviction in respect of the disputed property against the
defendant No.1 appellant Nand Kishore (since deceased,
hereinafter referred to as 'the defendant No.1'), on 15.01.1975. It
was alleged inter alia in the plaint that the defendant No.1, who
had taken the said property on rent from the plaintiff on
04.12.1971 at a monthly rent of Rupees 300, had defaulted in the
payment of rent right from the inception and that the plaintiff
required the said property to fulfill her bona fide and reasonable
needs. It was further alleged in the plaint that the defendant No.1
had sub-let the said property without the prior permission of the
(3 of 20) [CSA-582/2003]
plaintiff and had also done material alterations to the suit property
without seeking the permission of the plaintiff.
The defendant No.1 filed his written-statement, denying all
the averments made in the plaint.
3. The trial court on the basis of the pleadings of the parties
framed as many as eight issues.
While adjudicating the case finally, the learned trial court
decided issues No.1, 3, 7A and 8 in favour of the plaintiff and
decreed the suit for eviction filed by the plaintiff. Aggrieved by the
judgment and decree dated 13.03.2002 passed by the learned
trial court, defendant No.1 preferred a first appeal under Section
96 of the civil Procedure Code, 1908. The said appeal was
dismissed by the first appellate court vide its judgment and decree
dated 30.07.2003. Hence, this second appeal.
4. This court, while admitting the second appeal preferred by
the appellant-tenant framed the following substantial questions of
law:-
(i) Whether in view of the subsequent event i.e. after
demise of the plaintiff Smt. Janki Devi on 16.03.2003
the ground of bonafide personal necessity does not
exist and suit deserves to be dismissed ?
(ii) Whether the finding of courts below is perverse on
bonafide necessity of the plaintiff respondent the
courts below and were correct in decreeing the suit ?
(iii) Whether the judgment and decree of the courts
below are contrary to the rent note and agreement
between the parties and the suit was maintainable
within seven years in spite of the fact that the
defendant appellant was entitled to repurchase the
premises within seven years of sale to the plaintiff
(4 of 20) [CSA-582/2003]
and suit was filed for repurchase of the houses and
appeal is pending before the Hon'ble High Court ?
(iv) Whether the finding of the court below was
correct contrary to the evidence on record that the
property was purchased by the plaintiff for her need
after retirement without appreciating the agreements
which were executed along with the sale deed and
appellant had right repurchase. The plaintiff had also
no knowledge about the execution of the sale deed
and other documents and rent note which shows that
the property was purchases benami by her son who
was Executive Engineer ?
5. Before deciding the appeal on merits, application bearing
No.22748/2015 filed by the contesting respondents is being
decided. The said application has been filed under Section 151
CPC for decreeing the suit on the ground of default, denying the
benefit of first default to the appellants under Section 13 (6) of
the Rajasthan Premises (Control of Rent & Eviction) Act, 1950
(hereinafter referred to as 'the Act of 1950').
6. It is submitted by the learned counsel for the respondents
that during the pendency of this appeal, the appellants after depositing the rent for the month of June, 2008 on 07.07.2008 did not make any deposit of rent for the month of July, 2008 and straightaway deposited rent for the month of August, 2008 on 08.09.2008. Similarly, the appellants after depositing the rent for the month of June, 2009 on 03.07.2009 did not deposit the rent for the month of July 2009 and straightaway deposited rent for the month of August, 2009 on 07.09.2009. The appellants again having deposited the rent for the month of December, 2010 on 04.01.2011 did not deposit rent for the month of January, 2011 (5 of 20) [CSA-582/2003] and straightaway deposited rent for the month of February, 2011 on 07.03.2011. It is submitted that in view of the above, the appellants failed to comply with sub-section (4) of Section 13 of the Act of 1950. In support of his contentions, learned counsel for the respondent has placed reliance upon Shiv Dutt Jadia Vs. Ganga Devi, reported in (2002) 3 SCC 189.
7. On the other hand, learned counsel for the appellants has opposed the application and has submitted that the issue of default has attained finality and against which no appeal has been preferred by the respondents-plaintiffs, therefore, the appellants are not bound to deposit monthly rent during the pendency of this appeal as provided in Section 13 (4) of the Act of 1950.
8. I have considered the rival submissions made by the learned counsel for the parties and also the judgments cited by the learned counsel for the respondents.
9. Indisputably, in this appeal, ground of default has not been challenged by the either party and the question of default has attained finality. Therefore, in my considered view, provisions contained in Section 13 (4) of the Act of 1950 are not attracted and the appellants are not required to deposit monthly rent during the pendency of this appeal. Hence, the said application has no substance and is dismissed accordingly.
10. So far as the merits of the appeal is concerned, since the substantial questions No.2 to 4 have not been pressed by the counsel for the appellants. Therefore, the aforesaid substantial questions are decided against the appellants accordingly.
In view of the above, the only question that requires adjudication in the present appeal is whether in view of the (6 of 20) [CSA-582/2003] subsequent event i.e. death of the plaintiff Janki Devi, would personal bona fide necessity of the respondents still subsists?
11. It has been contended by Mr. Harsh Sharma, learned counsel appearing on behalf of appellants that the plaintiff Janki Devi passed away during the pendency of the appeal and hence, the bona fide and reasonable need averred in the plaint also stood extinguished. It was also submitted by the counsel that the court ought to take into consideration the events that have transpired after the filing of the appeal. The learned counsel relied on the decision of the Hon'ble Supreme Court reported in (2004) 8 Supreme Court Cases 76, Kedar Nath Agarwal (Dead) and Another Vs. Dhanraji Devi (Dead) by LR's. & Anr.
12. Per contra Mr. R.K. Agarwal, learned senior counsel appearing on behalf of the contesting respondents contended that the argument that the bona fide and reasonable need of the respondents came to an end with the demise of the plaintiff Janki Devi is absolutely misconceived and contrary to the well- entrenched law as laid down by the Hon'ble Supreme Court in a number of decisions. Mr. Agarwal contended that for finding out whether or not the landlord had reasonable and bona fide need of the tenanted premises, the need as it existed on the date of filing of the suit needs to be taken into consideration. To support his contention, Mr. Agarwal relied on the following decisions rendered by the Hon'ble Apex Court:
1. (1995) 6 Supreme Court Cases 733, Deva Ram and Another Vs. Ishwar Chand And Another.
2. (1997) 4 Supreme Court Cases 413, Kamleshwar Prasad Vs. Pradumanju Agarwal;
(7 of 20) [CSA-582/2003]
3. (1999) 7 Supreme Court Cases 435, Ravinder Kumar Sharma Vs. State of Assam and Others;
4. (2001) 2 Supreme Court Cases 604, Gaya Prasad Vs. Pradeep Srivastava;
5. (2002) 2 Supreme Court Cases 256, Om Prakash Gupta Vs. Ranbir B. Goyal;
6. (2004) 5 Supreme Court Cases 772, Shakuntala Bai And Others Vs. Narayan Das and Others;
7. (2008) 1 Supreme Court Cases 330, Usha P. Kuvelkar And Others Vs. Ravindra Subrai Dalvi;
8. (2010) 3 Supreme Court Cases 470, Sheshambal Vs. Chelur Corporation Chelur Building and Others;
9. (2010) 6 Supreme Court Cases 257, Speedline Agencies Vs. T. Stanes And Company Limited;
10. (2013) 14 Supreme Court Cases 179, Baldev Krishan Vs. Satya Narain.
13. I have considered the submissions by both the counsels and perused the material on record. Before I can finally adjudicate the dispute, it is not only apposite but also necessary to briefly discuss the various judgments cited by the learned counsels.
In Gaya Prasad (Supra), a suit for eviction had been filed by the landlord to fulfill his bona fide and reasonable need of using the tenanted premises as clinic for his son who had just done his graduation in Medicine and also for using the other part of the tenanted premises for running a radio-repair workshop. The suit was decreed by both the courts below. However, an appeal was filed by the disgruntled tenant before the Allahabad High Court, which granted stay to the tenant. The matter kept pending for 23 long years, after which the appeal filed by the tenant was dismissed. The indignant tenant filed a Review Petition before the High Court contending therein that since the son of the landlord (8 of 20) [CSA-582/2003] had joined the Provincial Medical Services, the bona fide and reasonable need of the landlord came to an end. The said Review Petition was dismissed, after which the vexed tenant approached the Hon'ble Supreme Court. Refuting the arguments of the tenant and following its earlier decisions, the Hon'ble Supreme Court in para 10 observed as follows:-
"10. We have no doubt that the crucial date for deciding as to the bona fides of the requirement of the landlord is the date of his application for eviction. The antecedent days may perhaps have utility for him to reach the said crucial date of consideration. If every subsequent development during the post-petition period is to be taken into account for judging the bona fides of the requirement pleaded by the landlord there would perhaps be no end so long as the unfortunate situation in our litigative slow- process system subsists. During 23 years, after the landlord moved for eviction on the ground that his son needed the building, neither the landlord nor his son is expected to remain idle without doing any work, lest, joining any new assignment or starting any new work would be at the peril of forfeiting his requirement to occupy the building. It is a stark reality that the longer is the life of the litigation the would be the number of developments sprouting up during the long interregnum. If a young entrepreneur decides to launch a new enterprise and on that ground he or his father seeks eviction of a tenant from the building, the proposed enterprise would not get faded out by subsequent developments during the traditional lengthy longevity of the litigation. His need may get dusted, patina might stick on its surface, nonetheless the need would remain intact. All that is needed is to erase the patina and see the gloss. It is pernicious, and we may say, unjust to shut the door before an applicant just on the eve of his reaching the finale, after passing through all the previous levels of the litigation, merely on the ground that certain developments (9 of 20) [CSA-582/2003] occurred pendente lite, because the party succeeded in prolonging the matter for such unduly long period."
In Om Prakash Gupta (Supra), the Hon'ble Supreme Court was dealing with an appeal filed by the tenant against a decree of eviction from the tenanted premises. Inter alia, it was contended on behalf of the appellant-tenant that the suit property had been allotted to the respondent by the Haryana Urban Development Authority (HUDA) and because of the installments to the HUDA, the possession over tenanted premises was sought to be resumed and the allotment made in the favour of the respondent-landlord was to be cancelled. It was further contended by the appellant- tenant that he was always ready and willing to pay the installments. Refuting the contentions of the appellants, the court observed that there was neither any order of resumption against the respondent-landlord nor could the court take note of a subsequent event unless three conditions are satisfied: (i) the relief claimed cannot be granted or becomes inappropriate because of e subsequent event (ii) taking note of the subsequent event would shorten the litigation and (ii) such subsequent event is brought to the notice of the court promptly.
In Kamleshwar Prasad (Supra), the appellant-tenant had approached the Hon'ble Apex Court, contending that the decree for eviction was bad in the eyes of law since the landlord for whose bona fide and reasonable need the suit was filed had passed away during the pendency of the appeal. Refuting the contention of the tenant, the Hon'ble Apex court observed that the crucial date for determining the bona fide and reasonable need is (10 of 20) [CSA-582/2003] the date of filing of the suit. The mere fact that the landlord died during the pendency of the appeal does not mean that his legal heirs cannot use the property or carry out the business that the landlord wished to carry out on the tenanted premises.
In Speedline Agencies (Supra), the appellant-tenant who had taken the disputed premises on rent from the respondent- company contended that the suit for eviction was filed by the original respondent i.e. Stanes Tea and Coffee Limited, which later merged with another company under Section 391 to 394 of the Companies Act, 1956. Since the company was no longer in existence pursuant to the merger/amalgamation, the newly formed company could not continue the eviction proceedings and the courts below erred in not taking cognizance of this subsequent event. The Hon'ble Supreme Court brushed aside the arguments of the appellant-tenant and held as under:-
22. Further, in Usha P. Kuvelkar v. Ravindra Subrai Dalvi [(2008) 1 SCC 330], this Court clearly brought out the distinction between the cases where death occurred after the decree and death occurring during the decree. It was held in para 14 that: (scc p. 337)
"14. ....... In the same decision a contrary note expressed by this court in P. V. Papanna v. K. Padmanabhaiah [(1994) 2 SCC 3161 was held to be in the nature of an obiter. This Court in Shakuntala Bai [(2004) 5 scc 772) referred to the decision in Shantilal Thakordas v. Chimanlal Maganlal Telwala (1976) 4 SCC 417] and specifically observed that the view expressed in Shantilal Thakordas case [(1976) 4 SCC 417] did not, in any manner, affect the view expressed in Phool Rani v. Naubat Rai Ahluwalia [(1973) SCC 688] to the effect that where the death of Landlord occurs after the decree for possession has been passed in his favour, his legal heirs are entitled (11 of 20) [CSA-582/2003] to defend the further proceedings like an appeal and the benefit accrued to them under the decree. Here in this case also it is obvious that the original landlord Prabhakar Govind Sinai Kuvelkar had expired only after the eviction order passed by the Additional Rent Controller. This is apart from the fact that the landlord had sought the possession not only for himself but also for his family members clear reference in Section 23 (1) (a) (i) of the Act regarding occupation of the family members of the landlord. In that view the contention raised by the learned counsel for the respondent must be rejected."
Further, the Hon'ble court also relied upon Gaya Prasad (Supra), and held that great injustice would be inflicted on the litigant if every subsequent event is taken into account especially when the lis is pending for a considerably long time.
In Shakuntla Bai (Supra), the husband of the appellant had brought a suit for eviction against the father of the respondent in relation to a non-residential premises. The suit was filed on the ground that the landlord required the disputed premises to carry out his own business. The suit had been decreed by the trial court, against which an appeal was preferred by the disgruntled tenant. But during the pendency of the appeal, the original landlord passed away. His legal heirs were duly taken on record. However, it was contended on behalf of the tenant that with the death of the original landlord, the bona fide need for which the suit for eviction was decreed stood extinguished. The first appellate court remanded the matter back for fresh adjudication. The trial court disregarded the submissions of the plaintiff-landlord and dismissed the suit, against which an appeal was preferred by the legal heirs of the plaintiff-landlord. The lower (12 of 20) [CSA-582/2003] appellate court allowed the appeal but the same was reversed by the High Court. Aggrieved by the judgment of the High Court, the legal heirs of the landlord preferred an appeal before the Hon'ble Supreme Court. The Hon'ble Court observed as thus:-
10. The effect of death of a landlord during the pendency of the proceedings has been considered in several decisions of this Court. In Phool Rani v. Naubat Rai Ahluwalia [(1973) 1 SCC 688: AIR 1973 SC 2110] the landlord filed an ejectment application under Section 14 (1) (e) of the Delhi Rent Control Act and eviction of the tenant was sought on the ground that the premises were required by the plaintiff "for occupation as a residence for himself and members of his family". The Additional Rent Controller dismissed the application on a preliminary ground that the notices to quit were not valid, without examining the case on merits. The plaintiff died during the pendency of the appeal preferred by him and his heirs substituted. The case was remanded and the Rent Controller passed an order of eviction. In appeal a contention was raised that the right to sue did not survive to the heirs of the plaintiff, which was rejected by the Rent Control Tribunal but was accepted in appeal by the High Court. This Court held that different results may follow according to the stage at which the death occurs.
One of situations considered in para 13 of the Report is as under: [SCC P.694, para 13 (i)] "13. (i) cases in which the death of the plaintiff occurred after a decree for possession was passed in his favour; say, during the pendency of an appeal filed by the unsuccessful Tenant:"
10.1. With regard to this category of cases, it was held that the estate is entitled to the benefit which, under a decree, has accrued in favour of the plaintiff and, therefore, the legal representatives are entitled to defend further proceedings, like an appeal, which constitutes a challenge to that benefit. Even otherwise, this appears to be quite logical. In normal circumstances after passing of the decree by the trial court, the original landlord would (13 of 20) [CSA-582/2003] have got possession of the premises. But if he does not and the tenant continues to remain in occupation of the premises it can only be on account of the stay order passed by the appellate court. In such a situation, the well-known maxim "actus curiae neminem gravabit" that "an act of the court shall prejudice no man" shall come into operation. Therefore, the heirs of the landlord will be fully entitled to defend the appeal preferred by the tenant and claim possession of the premises on the cause of action which had been originally pleaded and on the basis whereof the lower court had decided the matter and had passed the decree for eviction. However, in regard to the case before the court it was held that the requirement pleaded in the ejectment application on which the plaintiff founded his right to relief was his personal requirement and such a personal cause of action must perish with the plaintiff. On this ground it was held that the plaintiff's right to sue will not survive to his heirs and they cannot take the benefit of the original right to sue.
11. In Shantilal Thakordas v. Chimanlal Maganlal Telwala [(1976) 4 SCC 417], a larger bench overruled the decision rendered in Phool Rani v. Naubat Rai Ahluwalia [(1973) 1 SCC 688: AIR 1973 SC 2110] insofar as it held that the requirement of the occupation of the members of the family of the original landlord was his personal requirement and ceased to be the requirement of the members of his family on his death. The Court took the view that after the death of the original landlord the senior member of his family takes his place and is well competent to continue the suit for eviction for his occupation and occupation of the other members of the family. Thus, this decision held that the substituted heirs of the deceased landlord were entitled to maintain the suit for eviction of the tenant. The ratio of this decision by a larger Bench does not in any manner affect the view expressed in Phool Rani [(1973) 1 SCC 688: AIR 1973 SC 2110] that where the death of the landlord occurs after a decree for possession has been passed in his favour, his legal representatives are entitled to defend further proceedings like an appeal and the benefit accrued to (14 of 20) [CSA-582/2003] them under the decree. In fact the ratio of Shantilal Thakordas [(1976) 4 SCC 417] would reinforce the aforesaid view.........."
In Sheshambal (Supra), the Hon'ble Supreme Court was dealing with a case in which the eviction petition filed by the landlord had been dismissed both by the Rent Controller, the appellate authority and the High Court of Kerala. Before the appellate court, an argument was put forth on behalf of the respondent-tenant that since the landlord had died during the pendency of the appeal, the bona fide requirement ceased to subsist. An appeal was preferred by the wife of the deceased landlord. Even though the Hon'ble court dismissed the appeal, observing that since the deceased landlord did not have any dependents, his personal need came to an end with his death, the court re-affirmed the decisions rendered earlier. The observations of the court were as follows:-
27. We may in particular refer to the decision of this Court in Shantilal Thakordas case [(1976) 4 SCC 417] in which this Court had overruled the earlier decision rendered in Phool Rani v Naubat Rai Ahluwalia [(1973) 1 SCC 688] and held that 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.
28. 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 dependent or otherwise.
Indeed if the deceased landlords had any dependent (15 of 20) [CSA-582/2003] member of the family we may have even in the absence of a pleading assumed that the requirement pleaded extended also to the dependent 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 dependent member of the family for whose benefit they could have sought eviction on the ground that she required the premises for personal occupation." The judgment titled as Baldev Krishanan (Supra), in this case, the landlord had filed the suit for eviction on the ground that he wanted to start a small business from the tenanted premises. The suit was decreed by the trial court and upheld by the first appellate court. However, during the pendency of the appeal, the wife of the landlord (who wanted to do the business in the tenanted premises) died. This court has allowed the second appeal. The plaintiff-landlord went up to the Hon'ble Supreme Court. The Hon'ble Court discussed the various decisions on the point and allowed the appeal. The observations of the court are reproduced below:-
"8. Returning to the pleadings before us, we are not seized of an eviction action in which the bonafide need of only the deceased wife of the Appellant has been pleaded. It is for this reason that we have extracted above the relevant parts of the Plaint. Therefore, it required our careful cogitation as to whether the landlord could still claim bonafide need for himself as well as his dependents.
9. In these circumstances, mindful of the uncertainty of which manner we may decide, the parties through their counsel have arrived at a settlement before us. It has been agreed that the rent shall stand increased to Rs. 1500/- per month and that the Respondent-tenant shall be permitted to continue to occupy the tenanted premises for a further period of three years. The Appeal is accordingly allowed. The judgment of the High court is set (16 of 20) [CSA-582/2003] aside. However, the Respondent-tenant shall hand over peaceful and vacant possession to the landlord or his legal heirs in the event of his demise on or before 31st August 2016 provided the Respondent pays all the arrears of rent till date (if any); and with effect from September 2013 pays a sum of Rs. 1500/- per month towards damages for use and occupation."
14. The position of law regarding eviction, bona fide need of the landlord and the death of the landlord during the pendency of the appeal, as emerging from above discussed case-laws can be briefly summarized as thus:-
A. The crucial date for determining the bona fide need of the landlord is the date of institution of the eviction suit/proceeding.
B. The death of the original landlord during the pendency of the appeal does not necessarily result into the cessation of the bona fide and reasonable need. The appeal can be contested by the legal heirs the deceased landlord if the bona fide need pleaded in the plaint whether directly or indirectly relates to the landlord' s legal heirs and dependents.
C. Even in the absence of any explicit plea, the courts can assume that the bona fide need as pleaded by the landlord also extends to his dependents, if he has any.
D. The court should take note of subsequent events only if three conditions are fulfilled. First, the relief as originally claimed has by reason of the subsequent event, become inappropriate or cannot be granted. Second, taking note of the subsequent event would shorten the litigation and enable the court to do justice to both the parties. Third, (17 of 20) [CSA-582/2003] such subsequent event is brought to the notice or the court promptly and without any delay.
15. Coming to the facts of the instant case, it is undisputed that plaintiff-landlady had filed the suit for her bona fide and reasonable need and also that of her family members/dependents. The learned trial court decreed the suit in favour of the plaintiff- landlady, which was confirmed by the first appellate court. However, during the pendency of the second appeal, the landlady passed away. The only contention of the learned counsel appearing for the appellants is that since the plaintiff-landlady died, the bona feed need for which the suit was filed and decreed also ceased to subsist. This court is of the considered view that that this argument has little substance. The position of law regarding to death of the original landlord during the pendency of appeal and the consequent cessation or subsistence of the bona fide has already been discussed in the foregoing paragraphs. It is undisputed that the landlady passed away during the pendency of this appeal. However, it is also true that the suit was filed not only for the bona fide need of the plaintiff-landlady but also for that of her dependents/family members. It is true that the learned trial court has decided the issue of bona fide needs of her family members against the plaintiff-landlady. The trial court observed that since the family members of the plaintiff-landlady had their own independent houses, they did not need the suit premises for fulfilling their needs. However, looking to the fact that almost two decades have elapsed since this finding was recorded by the trial court, the needs of the family members of the plaintiff-landlady too must have grown exponentially. It is true that they had houses (18 of 20) [CSA-582/2003] that time to reside in but with the efflux of time, their families too must have grown, increasing their bona fides needs manifold. Thus, I am of the considered view that since the suit itself was filed for the bona fide needs of the plaintiff-landlady herself and also that of her family members, the family members are entitled to contest the appeal after the landlady's death and the bona fide need would not cease to subsist merely because of the death of the plaintiff-landlady. Moreover, this case is a quintessential case where the doctrine of Actus Curiae Neminem Gravabit i.e. an act of court shall not prejudice any one. Inordinate delay is a common deficiency permeating through all the tiers of the Indian judicial system. A disgruntled tenant who has lost from both the courts below should not be allowed to reap the benefit of the delay in the adjudication of the appeal merely because the landlady has passed away during the pendency of the appeal, especially when the suit was filed not only for her own bona fide need but also for the bona fide needs of her family members.
16. At this juncture, this court deems it necessary to discuss the only case-law cited on behalf of the defendants-appellants. The judgment is titled Kedar Nath Agarwal (Supra). In this case, it was held by the Hon'ble Apex Court that the rights of the parties should be determined on the basis of date of institution of the suit. In the suit/action should be tried at all stages on the cause of action as it existed at the commencement of the suit/action. However, it does not mean that events happening after institution of a suit/proceedings, cannot be considered at all. It is further held that it is the duty of the Court to consider changed (19 of 20) [CSA-582/2003] circumstances. In para 16 of the said judgment, the Hon'ble Apex Court observed as under:-
"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."
17. The said judgment does not help the case of the appellants in the facts and circumstances of the present case in anyway. In that case, the Hon'ble Court took note of the subsequent event i.e. the death of the original landlords since both of them had died during the pendency of the writ petition and the suit was filed only for the personal need of the landlords and not their dependents. It was explicitly observed in para 31 that since all three daughters of the plaintiff-landlord were married and staying with their in-laws, (20 of 20) [CSA-582/2003] the death of the landlord was a relevant and material fact. It was only in this backdrop that the Hon'ble Court had allowed the appeal. Thus, it is clear that the facts of that case are totally distinguishable from the instant case.
In view of the aforesaid discussions, substantial question No.1 is decided against the appellants and in favour of the contesting respondents.
18. In the result, this appeal is devoid of any merit and is liable to be dismissed and the same is dismissed accordingly.
There shall be no order as to costs.
(PRAKASH GUPTA),J SG Powered by TCPDF (www.tcpdf.org)