{"id":102650,"date":"1981-04-28T00:00:00","date_gmt":"1981-04-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/hasmat-rai-anr-vs-raghunath-prasad-on-28-april-1981"},"modified":"2017-07-24T20:25:13","modified_gmt":"2017-07-24T14:55:13","slug":"hasmat-rai-anr-vs-raghunath-prasad-on-28-april-1981","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/hasmat-rai-anr-vs-raghunath-prasad-on-28-april-1981","title":{"rendered":"Hasmat Rai & Anr vs Raghunath Prasad on 28 April, 1981"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Hasmat Rai & Anr vs Raghunath Prasad on 28 April, 1981<\/div>\n
Equivalent citations: 1981 AIR 1711, \t\t 1981 SCR (3) 605<\/div>\n
Author: D Desai<\/div>\n
Bench: Desai, D.A.<\/div>\n
           PETITIONER:\nHASMAT RAI & ANR.\n\n\tVs.\n\nRESPONDENT:\nRAGHUNATH PRASAD\n\nDATE OF JUDGMENT28\/04\/1981\n\nBENCH:\nDESAI, D.A.\nBENCH:\nDESAI, D.A.\nPATHAK, R.S.\nVENKATARAMIAH, E.S. (J)\n\nCITATION:\n 1981 AIR 1711\t\t  1981 SCR  (3) 605\n 1981 SCC  (3) 103\t  1981 SCALE  (1)714\n CITATOR INFO :\n R\t    1985 SC 207\t (16)\n E&D\t    1987 SC 406\t (6)\n R\t    1987 SC 741\t (12,13)\n D\t    1988 SC  30\t (5)\n RF\t    1991 SC1760\t (20,23)\n RF\t    1992 SC 700\t (4)\n\n\nACT:\n     Madhya Pradesh Accommodation Control Act, 1961-Scope of\nsection\t 12(1)\t (f)-Bonafide  requirement   under   section\n12(1)(f)-Landlord filing  two eviction\tsuits and  acquiring\npossession of  a major\tportion of the suit premises through\nan  eviction  order  passed  in\t one  of  them-Whether\tthis\nacquisition  amounts  to  the  landlord\t \"has  a  reasonably\nsuitable non-residential  accommodation of  his own  in\t his\noccupation in the city or town concerned' within the meaning\nof section  12(1)(f)  of  the  Act-Noticing  of\t such  event\nsubsequent to  the passing of the decree for eviction in the\nother eviction\tsuit, whether  a must by the Court-Propriety\nof refusal  of leave  to amend\tthe written  statement under\norder VI rule 17 Civil Procedure Code by the High Court.\n\n\n\nHEADNOTE:\n     The respondent-landlord  filed two\t eviction suits\t for\nrecovery of  possession of  a non-residential building which\nwere in\t occupation of\ta firm\tGoraldas Parmanand  and\t the\nappellant-tenant. The  portion\toccupied  by  the  appellant\nincluding the  frontage was  7x22. In  the view\t of the fact\nthat the  landlord obtained  eviction order against the firm\nGoraldas Parmanand  on the  ground  that  the  building\t was\nrequired for  the purpose  of reconstruction and repairs and\nalso for  bona fide  requirement, in the later eviction suit\nfiled against  the appellant,  in para\t4 of  the plaint the\nlandlord stated that he was in possession of a major portion\nof the\tnon-residential building  which he obtained from the\nfirm M\/s.  Goraldas Parmanand.\tThe appellant  contested the\neviction suit  filed against him on the ground, (a) that the\npremises was  not in  dilapidated  condition  and  did\tnot,\ntherefore, need\t reconstruction and repairs and (b) that the\nlandlord in  view of his own admission in the plaint at para\n4 has a reasonable suitable non-residential accommodation of\nhis own\t and  therefore\t cannot\t claim\this  eviction  under\nsection\t (12)(1)(f)  of\t the  Madhya  Pradesh  Accommodation\nControl Act, 1961.\n     The trial\tcourt rejected the tenant's pleas and passed\nan eviction  order. In\tappeal the  first  appellate  court,\nwhile confirming  the finding  of the  trial court  that the\nbuilding was  in a  dilapidated condition  and required\t re-\nconstruction and repairs, held that even though the landlord\nobtained a  decree against  the firm  Goraldas Parmanand, he\nhad not\t got actual  possession, as the litigation was still\npending and,  therefore, the plaintiff's requirements of the\nwhole building was established.\n     In\t the   second  appeal  before  the  High  Court,  an\napplication  under   Order  VI,\t  Rule\t17,  Code  of  Civil\nProcedure, was\tmade praying for an amendment to the written\nstatement alleging  that the  firm  Goraldas  Parmanand\t has\nvacated the entire portion of the premises in his possession\nand the plaintiff-landlord has obtained actual possession of\na major portion of the building and if this aspect was taken\ninto  consideration  the  plaintiff-landlord  would  not  be\nentitled to  a decree for eviction under section 12(1)(f) of\nthe Act. The High Court rejected\n606\nthe  application   observing  that   the  adjoining  portion\noccupied by  firm Goraldas Parmanand was vacated by the firm\nas for\tback  as  in  the  year\t 1972  and,  therefore,\t the\napplication for amendment filed 3-1\/2 years after the filing\nof the second appeal must be rejected. Further it was of the\nview that  the definition  of \"tenant\" in the Madhya Pradesh\nAct would  not enable  a tenant,  though in  possession\t but\nagainst whom  a decree\tor order for eviction has been made,\nto invite  the court  to take notice of events subsequent to\nthe passing  of the  decree for eviction by the trial court.\nThe  High   Court,  accordingly\t confirmed  the\t decree\t for\neviction hence,\t the appeal  by the  tenant after  obtaining\nspecial leave of the Court.\n     Allowing the  appeal and  remanding the  matter to\t the\nfirst appellate court with directions, the Court\n^\n     HELD: 1.  Before an  allegation of\t fact to  obtain the\nrelief required\t is permitted  to  be  proved,\tthe  law  of\npleadings require  that such  facts have  to be\t alleged and\nmust be\t put in\t issue. Any  amount of proof offered without\npleadings is  generally of no relevance. In order to be able\nto seek\t eviction of  a tenant under section 12(1)(f) of the\nMadhya Pradesh Accommodation Control Act, 1961, the landlord\nhas to\tallege and  establish (i)  that he bonafide requires\nthe accommodation  let to  the\ttenant\tfor  non-residential\npurposes for  the purpose  of  continuing  or  starting\t his\nbusiness and  (ii) that\t he has no other reasonably suitable\nnon-residential accommodation  of his  own in his occupation\nin the\tcity or\t the town concerned. The burden to establish\nboth the requirements of section 12(1)(f) is squarely on the\nlandlord. [610 H, 611 A, 612 D and F]\n     2. The  application  under\t Order\tVI  Rule  17,  Civil\nProcedure Code,\t in view  of the  averments in\tthe  written\nstatement is  wholly superfluous.  However, in\tview of\t the\npleadings in  the instant  case, it  must be granted because\n\"the burden  of proof  of establishing that the landlord was\nnot in\tpossession of a reasonably suitable accommodation in\nthe same  town was on the plaintiff\" it was wrongly rejected\nby the\tHigh Court  on untenable  ground that the defendant-\nappellant  was\t guilty\t of   delay  and   laches   ignoring\nincontrovertible admitted  position which would non-suit the\nrespondent-plaintiff. [613 E-G]\n     3:1. The  definition  of  expression  \"tenant\"  in\t the\nMadhya Pradesh Accommodation Control Act, 1961 excludes from\nits operation  a person in possession against whom any order\nor decree  for eviction\t has been made. The decree means the\ndecree of the final court. This is so because once an appeal\nagainst decree or order of eviction is preferred, the appeal\nis a continuation of suit. [615 C, 616 B]\n     3:2. When\tan action  is brought  by the landlord under\nRent Restriction  Act for eviction on the ground of personal\nrequirement, his need must not only be shown to exist at the\ndate of\t the suit,  but must  exist on the date of appellate\ndecree, or  the date  when a  higher court  deals  with\t the\nmatter. During\tthe progress  and passage of proceeding from\ncourt to  court if  subsequent events occur which if noticed\nwould non-suit\tthe plaintiff.\tthe court has to examine and\nevaluate the  same and\tmould the  decree  accordingly.\t The\ntenant is  entitled to\tshow that the need or requirement no\nmore exists  by pointing  out such subsequent events, to the\ncourt including\t the appellate court. Otherwise the landlord\nwould\n607\nderive an  unfair advantage,  and it  would be\tagainst\t the\nspirit or  intendment of  Rent\tRestriction  Act  which\t was\nenacted to  fetter the unfettered right of re-entry. In such\na situation  it would  be incorrect to say that as decree or\norder for  eviction is\tpassed against\tthe tenant he cannot\ninvite the  court  to  take  into  consideration  subsequent\nevents. But  the tenant\t can be precluded from so contending\nwhen decree  or order for eviction has become final. [616 C-\nG]\n     Pasupuleti\t Venkateswarlu\tv.  The\t Motor\tand  General\nTraders,<\/a> [1975] 3 S.C.R. 958, followed.\n     Taramal v.\t Laxman Sewak  and Ors., 1971 Madhya Pradesh\nLaw Journal p. 888, overruled.\n     3:3. In  the instant case; (i) relying on the admission\nof the\tplaintiff himself  that he  has in  his possession a\nshop admeasuring  18\/x68 plus 7\/x68 forming part of the same\nbuilding and  his failure  to state  that the  space with 18\nfrontage is  neither suitable  not reasonably  suitable\t nor\nsufficient  for\t  starting  his\t  business  as\tChemist\t and\nDruggist, the  plaintiff's suit\t for eviction  on the ground\nmentioned in section 12(1)(f) of the Madhya Pradesh Act must\nfail;  (ii)  the  finding  of  the  courts  below  that\t the\nrespondent requires  possession of the whole of the building\nincluding the  one occupied  by the  tenant for starting his\nbusiness as  Chemist and  Druggist as also for his residence\nis vitiated beyond repair. The observation of the High Court\nthat the  remaining portion of the premises would be used by\nthe landlord  for his  residence and even though the portion\nutilised for  the purpose  of running  the business would be\nsmaller compared to the one to be utilised for the residence\nit would  still not  be\t violative  of\tsub-section  (7)  of\nsection 12 because such a composite user would not radically\nchange the  purpose for\t which the accommodation was let, is\ncontrary to records and pleadings. [618 B-C, D-F, 619 B-C]\n     4:1.  In  order  to  obtain  possession  under  section\n12(1)(h) of  the Madhya\t Pradesh Act  the  landlord  has  to\nestablish his  bonafide requirement  of the accommodation in\npossession of  the tenant  for the  purpose of\tbuilding  or\nrebuilding or  making thereto  any substantial\tadditions or\nalterations and\t must further show that such building or re-\nbuilding or  alterations cannot\t be carried  out without the\naccommodation being vacated. If the landlord succeeds in his\nprayer for  possession on  the ground  mentioned in  section\n12(1)(h), it  would be\tnecessary  for\tthe  court  to\tgive\nappropriate directions\tunder section 18 of the Act. [619 F-\nG, 621 BC]\n     4:2. Here,\t as the\t matter has  not been  examined from\nthis angle  by any  court, even\t though\t the  litigation  is\npending for a long time, the case requires to be remanded to\nthe first  appellate court  to ascertain:  (i)\twhether\t the\nlandlord is  interested in  re-constructing that  portion of\nthe building which is in possession of the tenant as demised\npremises; (ii)\twhether the  landlord would be in a position\nto reconstruct\tthe building  in his  possession without the\ntenant being  required to  vacate the  demised premises\t and\n(iii) if the first two queries are answered in favour of the\nlandlord, what\tshould be  the appropriate  directions to be\ngiven in  favour of  the tenant as enjoined by section 18 of\nthe Act. [621 C-F]\n608\n     Per Pathak, J. (Concurring)\n     1. In a proceeding for the ejectment of a tenant on the\nground of  personal requirement\t under a statute controlling\nthe eviction  of tenants,  unless the statute prescribes the\ncontrary the  requirement must continue to exist on the date\nwhen the proceeding is finally disposed of, either in appeal\nor revision, by the relevant authority. Here, the High Court\nshould have  allowed the  application for  amendment of\t the\nwritten statement  under Order\tVI Rule\t 17, Civil Procedure\nCode. [624 E-F]\n     2. Before\tthe need  for personal residence can be held\nproved, several\t considerations\t need  to  be  proved  under\nsection 12(1)(e)  of the  Act.\tThe  omission  to  draw\t the\nattention of  the High\tCourt to  the fact that the need for\npersonal residence  was never  pleaded in the plaint led the\nHigh Court  to fall  into error\t in taking this element into\naccount. [625 B-C]\n     Per Contra:\n     3:1.  In  the  instant  case,  it\tis  clear  from\t the\nconcurrent  findings  of  the  courts  below  that  (a)\t the\nrespondent has\tmade out his case under section 12 (1)(h) of\nthe Act\t that he requires the building including the portion\noccupied by  the appellants  for the  re-construction of the\nfront portion  and repairs  to the  rear  portion  and\tthat\nnecessitates that  the appellants vacate their accommodation\nand (b)\t the respondent\t needs a portion of the building for\nstarting the business of a medicine shop. [625 E-G]\n     3:2. Whether  or not  the shop should be located in the\nfront portion  of  the\tbuilding  and  what  should  be\t the\ndimensions of  the proposed  Chemist and  Druggist shop will\nturn on\t the evidence adduced by the parties in that behalf,\nGiving a finding on this point, in the circumstances of this\ncase,  is   pre-eminently  a  task  to\tbe  entrusted  to  a\nsubordinate court.  The questions  for consideration  by the\nappellate court\t are: (i) what should be the location of the\nshop and  what should  be the  dimensions in  the matter and\n(ii) availability of the benefit under section 18 of the Act\nto the appellants. [625 D-E]\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1108 of
\n1976.\n<\/p>\n
     Appeal by\tspecial leave  from the\t judgment and  order
\ndated the  17th April  1976 of the Madhya Pradesh High Court
\nin Second Appeal No. 113 of 1969.\n<\/p>\n
     S.K.  Mehta,   P.N.  Puri\t and  E.M.S.  Anam  for\t the
\nAppellants.\n<\/p>\n
     P.P. Juneja for the Respondent.\n<\/p>\n
     The following Judgments were delivered
\n     DESAI, J.\tA tenant  under a  decree of eviction is the
\nappellant in this appeal by special leave.\n<\/p>\n
609<\/span><\/p>\n
     Respondent\t landlord  filed  a  suit  for\trecovery  of
\npossession of  premises being  a small\tshop admeasuring 7’X
\n22′ forming  part of a big non-residential building situated
\nin Sadar  Bazar, Bilaspur  town in  Madhya  Pradesh  on\t two
\ngrounds, to  wit: (i)  that he (landlord) intended to open a
\nmedicine shop  and  he\thad  no\t other\treasonably  suitable
\naccommodation for  the same  in the  town; and\t(ii) that he
\n(landlord) required  the suit  building for  the purpose  of
\nreconstruction and  repairs which  could not  be carried out
\nunless it  was vacated by the defendant. The tenant resisted
\nthe suit pointing out that the landlord on his own admission
\nas set\tout in\tplaint para  4 was  in possession of a major
\nportion of  a non-residential  building of which he acquired
\npossession  from   the\tfirm  of  Goraldas  Parmanand  which
\naccommodation was  sufficient for  starting the\t business of
\nChemists and  Druggists shop. It was also contended that the
\nbuilding was not in a dilapidated condition and did not need
\nreconstruction and repairs.\n<\/p>\n
     The trial\tcourt recorded\ta finding  that the building
\nwas in\ta dilapidated condition and reconstruction of it was
\nessential and the landlord had sufficient funds to undertake
\nreconstruction. On  the question  of personal requirement of
\nplaintiff to start a medicine shop, the trial court recorded
\na finding  that in  the front  portion of  building landlord
\nwould start  his business  as Chemists and Druggists and the
\nrear of\t the building  would be\t utilized  by  him  for\t his
\nresidence. It  was  further  held  that\t as  the  landlord’s
\nrequirement was\t a  composite  one  in\tthat  he  wanted  to
\nreconstruct the\t building and  then use\t the whole of it for
\nhimself, therefore,  the  tenant  was  not  entitled  to  be
\ninducted in  the reconstructed\tbuilding which he would have
\nbeen entitled  to claim\t under\tsection\t 18  of\t the  Madhya
\nPradesh Accommodation Control Act, 1961 (‘Act’ for short).\n<\/p>\n
     An appeal\tby the tenant to the District Court elicited
\nin para\t 20 a  finding that though the landlord was studying
\nhe might  choose his  career for business after he completed
\nhis education  and he  had got\tRs. 8,000 in a fixed deposit
\naccount in  a bank  and even  though he\t obtained  a  decree
\nagainst the  firm of  M\/s. Goral  Parmanand he\thad not\t got
\nactual possession  as the  litigation was still pending and,
\ntherefore, the plaintiff’s requirement of the whole building
\nwas  established.   The\t finding   that\t the  house  was  in
\ndilapidated  condition\t and  required\t reconstruction\t was
\naffirmed.\n<\/p>\n
     When the matter reached the High Court in second appeal
\nby the\ttenant an  application under Order VI, rule 17, Code
\nof Civil
\n610<\/span>
\nProcedure, was\tmade praying for an amendment to the written
\nstatement alleging  that the  firm  Goraldas  Parmanand\t has
\nvacated the  whole of  the remaining portion of the building
\nexcluding the premises in possession of the tenant measuring
\n7′  X  22′  and\t that  the  plaintiff  has  obtained  actual
\npossession of  the same\t and if\t this aspect  was taken into
\nconsideration the  plaintiff landlord  would not be entitled
\nto a  decree for  eviction under s. 12(1)(f) of the Act. The
\nHigh Court  rejected  the  application\tobserving  that\t the
\nadjoining portion  occupied by\tfirm Goraldas  Parmanand was
\nvacated by  the firm  as far  back as  in the  year 1972 and
\ntherefore the  application for\tamendment filed\t 3 1\/2 years
\nafter the  filing of  the appeal  must be  rejected  on\t the
\nground of delay and laches. Further, despite the judgment of
\nthis Court  in Pasupuleti  Venkateswarlu v.  The  Motor\t and
\nGeneral Traders, the High Court<\/a> felt considerable hesitation
\nin taking  note of  this event\tsubsequent to the passing of
\nthe decree  for eviction  by the  trial court because of its
\nearlier decision  in Taramal  v. Laxaman  Sewak and  Ors  in
\nwhich it was held that the definition of ‘tenant’ in the Act
\nwould not  enable a tenant, though in possession but against
\nwhom a decree or order for eviction has been made, to invite
\nthe Court to take notice of events subsequent to the passing
\nof the\tdecree for eviction by the trial court. The decision
\nof this\t Court was  distinguished on  the  ground  that\t the
\ndefinition of  the expression  ‘tenant’\t in  Andhra  Pradesh
\nBuilding (Lease\t Rent and  Eviction) Control  Act, 1960, was
\nsomewhat different  and was  wide  enough  to  include\tsuch
\npersons. The High Court accordingly rejected the application
\nand dismissed  the second  appeal confirming  the decree for
\neviction.\n<\/p>\n
     Section 12(1)(f)  under which eviction of the tenant is
\nsought by the landlord reads as under:-\n<\/p>\n
\t  “that the  accommodation let\tfor  non-residential
\n     purposes is  required bona fide by the landlord for the
\n     purpose of\t continuing or starting his business or that
\n     of any  of his  major sons or unmarried daughters if he
\n     is the  owner thereof  or\tfor  any  person  for  whose
\n     benefit the accommodation is held and that the landlord
\n     or such  person has  no other  reasonably suitable\t non
\n     residential accommodation\tof his own in his occupation
\n     in the city or town concerned.”\n<\/p><\/blockquote>\n
In order  to be\t able to  seek eviction of a tenant under s.
\n12(1)(f) the landlord has not only to establish that he bona
\nfide requires the
\n611<\/span>
\naccommodation let to the tenant for non-residential purposes
\nfor the\t purpose of  continuing or starting his business but
\nhe  must  further  show\t that  the  landlord  has  no  other
\nreasonably suitable  nonresidential accommodation of his own
\nin his occupation in the city or the town concerned.\n<\/p>\n
     The landlord  in this case seeks eviction of the tenant
\nfrom a\tbuilding let  for non-residential  purpose.  He\t can
\nobtain possession  either for  continuing  or  starting\t his
\nbusiness. He was a student at the relevant time. He appeared
\nto have\t completed his education thereafter. It is stated in
\nthe plaint unambiguously that he wanted to start business by
\nopening a  medicine shop. In other words, he wanted to start
\na Chemist  and Druggist\t shop. He must, therefore, show that
\nhe has\tnot got in his possession a reasonably suitable non-
\nresidential accommodation  of his  own in  his occupation in
\nthe town of Bilaspur.\n<\/p>\n
     The suit  building, as earlier observed, is in the city
\nof  Bilaspur  and  situated  in\t Sadar\tBazar,\tobviously  a
\nbusiness locality.  Respondent-landlord\t claims\t to  be\t the
\nowner of the whole building. The suit premises in possession
\nof the tenant in which he is carrying on a small kirana shop
\nadmittedly admeasures  7 frontage on the main road and 22 in
\ndepth. In  other words\tit is 7’X 22′. The whole building of
\nwhich demised  premises form  a small  part  appears  to  be
\nhaving a  frontage of  28. 3 passage has to be excluded. The
\npremises in  possession of  the tenant\thas a frontage of 7.
\nThe length  of the  building or\t what is styled as depth was
\ngiven out  to us  as 90\t by learned  counsel for respondent-
\nlandlord. 18′ frontage with 90′ depth was thus in possession
\nof firm\t Goraldas Parmanand.  Respondent landlord  had\talso
\ninitiated  proceedings\t for  obtaining\t possession  of\t the
\npremises occupied  by firm  Goraldas Parmanand\ton the\tsame
\nground, namely,\t that he  wanted to  start his\tbusiness  of
\nChemists and Druggists in the building.\n<\/p>\n
     The question  is whether  the premises occupied by firm
\nGoraldas Parmanand  has been  vacated by  the firm.  If\t the
\nanswer is  in affirmative,  the respondent landlord has thus
\nobtained vacant\t possession of\tthe whole  of  the  premises
\noccupied by  firm Goraldas  Parmanand. Looking\tto  the\t map
\nannexed to  the plaint\tand the evidence led in the case and
\nthe dimensions of the premises stated at the hearing of this
\nappeal the  area vacated  by the  previous tenant  would  be
\n18’X90′ plus portion at the back of the premises occupied by
\nthe present appellant which would be 7’X 68′ and it
\n612<\/span>
\nhas come  in possession of the respondent. The last question
\nwould be  if landlord  obtained vacant possession subsequent
\nto the decree passed against the present appellant tenant by
\nthe Trial  Court, whether  the\tsubsequent  event  could  be
\nnoticed by  the court  for moulding  the decree\t against the
\npresent appellant tenant.\n<\/p>\n
     Section 12\t starts with  a non-obstante  clause thereby
\ncurtailing the right of the landlord to seek eviction of the
\ntenant which he might have under any other law and the right
\nof eviction  is made  subject to the overriding provision of
\nsection 12.  It is  thus an  enabling section.\tIn order  to
\navail of  the  benefit\tconferred  by  section\t12  to\tseek
\neviction  of  the  tenant  the\tlandlord  must\tsatisfy\t the
\nessential ingredients  of the  section. The landlord in this
\ncase seeks eviction of the tenant under section 12(1)(f). He
\nmust, therefore,  establish (i)\t that he  requires bona fide
\npossession of a building let for non-residential purpose for
\ncontinuing or starting his business; and (ii) that he has no
\nother reasonably  suitable non-residential  accommodation of
\nhis own in his occupation in the city or town concerned. The
\nburden\tto   establish\tboth  the  requirements\t of  section
\n12(1)(f)  is   squarely\t on  the  landlord.  And  before  an
\nallegation  of\t fact  to  obtain  the\trelief\trequired  is
\npermitted to  be proved,  the law  of pleadings require that
\nsuch facts  have to  be alleged\t and must  be put  in issue.
\nOrdinarily, therefore,\twhen a landlord seeks eviction under
\nsection 12(1)(f)  the court  after  satisfying\titself\tthat
\nthere are  proper pleadings must frame two issues namely (i)
\nwhether the  plaintiff landlord\t proves that  he  bona\tfide
\nrequires possession of a building let to the tenant for non-
\nresidential purpose for continuing or starting his business,
\nand (ii)  whether he  proves that he has no other reasonably
\nsuitable non-residential  accommodation of  his own  in\t the
\ncity or town concerned. Without elaborating we must notice a
\nwell  established  proposition\tthat  any  amount  of  proof
\noffered without pleadings is generally of no relevance.\n<\/p>\n
     Turning to\t the pleadings in this case the plaintiff in
\npara 6 of the plaint has stated as under:-\n<\/p>\n
\t  “The plaintiff  intends to  start his own business
\n     in the  said building after the said reconstruction. He
\n     intends to\t open a medicine shop therein. The plaintiff
\n     bona  fide\t requires  the\tsuit  house  for  the  above
\n     purpose. He has no other suitable accommodation for the
\n     same in the town.”\n<\/p><\/blockquote>\n
The cryptic  averment is  that the plaintiff has not got any
\nother reasonably  suitable accommodation  in the  same town.
\nHowever,
\n613<\/span>
\nin para 4 of the plaint it is stated ‘that the major portion
\nof the\tbuilding is  in\t occupation  of\t the  firm  Goraldas
\nParmanand and  the plaintiff  has already  obtained a decree
\nfor its\t eviction therefrom’.  The defendant  in his written
\nstatement has  in term\tstated\tthat  the  defendant  is  in
\npossession of a small portion of the building, the remaining
\nportion of  which was  in possession  of firm  M\/s. Goraldas
\nParmanand. In  para 6 of the written statement it is further
\nstated that  on his  own admission,  the plaintiff has got a
\nsuitable alternative  accommodation being  the premises\t for
\nwhich a\t decree of  eviction is\t obtained for doing business
\nand which  is more  than sufficient for his requirement. The
\nlearned Trial  Judge framed  Issue No.\t2(a) on the question
\nwhether the  plaintiff\tlandlord  had  no  other  reasonably
\nsuitable accommodation\tof his\town in his occupation in the
\ncity. While  recording finding\ton this\t issue\tthe  cryptic
\nobservation in para 19 of the judgment is that the plaintiff
\nis a  student and he has no other accommodation for starting
\nhis own\t business. There  is not  the slightest reference to
\nthe decree admittedly obtained by the plaintiff against firm
\nM\/s. Goraldas  Parmanand which firm was carrying on business
\nin a portion of the building which the plaintiff himself has
\ndescribed as  the major\t portion of  the building,  the suit
\npremises being a small portion of the whole building. In the
\nfirst appeal  this contention  is disposed  of by  observing
\nthat the  alternative accommodation  which the defendant has
\npleaded in  his written\t statement is  under litigation\t and
\ntherefore  it\tcannot\tbe   treated  as  available  to\t the
\nplaintiff.’
\n     In the  second appeal  in the  High Court the defendant
\nappellant moved\t an application\t under Order  VI Rule 17 for
\namendment of  the written statement for elaborating what was
\nalready stated\tthat not  only the  decree obtained  by\t the
\nplaintiff against  the adjoining tenant of the same building
\nnamely firm  of M\/s. Goraldas Parmanand has become final but
\nthe plaintiff  in execution  of the  decree way back in 1972
\nobtained actual\t possession of the whole of area occupied by
\nthat  firm  and\t that  forms  major  portion  of  the  whole
\nbuilding. This\tapplication, though,  in our  opinion, to be
\nwholly superfluous in view of the pleadings hereinbefore set
\nout and\t in view  of the  fact that  the burden\t of proof of
\nestablishing that  the landlord\t was not  in possession of a
\nreasonably suitable  accommodation in  the same\t town was on
\nthe plaintiff  was rejected  on untenable  ground  that\t the
\ndefendant appellant  was guilty\t of delay  and laches.\tThis
\napplication for\t amendent deserves  to be  granted,  and  we
\ngrant the  same. What  is its  impact ? Even while rejecting
\nthe application\t the High  Court in terms observed in para 4
\nof its judgment as under:-\n<\/p>\n
614<\/span><\/p>\n
\t  ‘Adjoining portion  was vacated  by firm  Goraldas
\n     Parmanand as far back as in the year 1972’.\n<\/p>\n
The High  Court thus had before it a fact beyond dispute and
\nbeyond controversy  that the  major portion  of the building
\nwas vacated  by the  adjoining tenant way back in 1972. This
\nwas an\tuncontroverted fact.  Therefore remand on this point
\nis an  exercise in  futility because the fact alleged in the
\napplication for\t amendment is  admitted. After rejecting the
\napplication on\twholly untenable  ground the  High Court  in
\n1976 affirmed  the finding  wholly  contrary  to  record  as
\navailable at  that stage  that the plaintiff landlord had no
\nother reasonably  suitable non-residential  accommodation of
\nhis own\t in his\t occupation  in\t the  city  even  though  on
\nlandlord’s own\tadmission he  had acquired vacant possession
\nof a  major portion  of the building let for non-residential
\npurpose as  far back  as 1972.\tIn the\tcourse of hearing we
\nwere  repeatedly   told\t that\tthe  finding  of  facts\t are
\nsacrosanct. The\t finding of  fact ignoring  incontrovertible
\nadmitted position  which would\tnon-suit  the  plaintiff  if
\nupheld would be travesty of justice. The burden being on the
\nplaintiff to  show that\t he had no other reasonably suitable
\naccommodation for  carrying on\tthe business which he wanted
\nto start  in the  suit premises, it was for the plaintiff to
\nshow that  he had not acquired possession from firm Goraldas
\nParmanand. Alternatively  the plaintiff\t should\t have  shown
\nthat the  said adjacent\t accommodation\twas  not  reasonably
\nsuitable for  the business  he wanted  to start. He has done
\nneither. On  the contrary plaintiff has admittedly adopted a
\nposition in the plaint that he not only wanted suit premises
\nbut also  the adjoining\t premises of  which he\thad obtained
\npossession for starting his business. In such a situation if
\nthe High  Court had  kept in  view that\t the  plaintiff\t had
\nalready with  him viz.\tpossession of  a building  having 18
\nfrontage on  the main  road and 90 depth plus portion at the
\nback of the suit premises in his possession it would have to
\ncome to\t an affirmative\t conclusion that  the plaintiff\t had
\nsufficient accommodation  for starting\this  business  as  a
\nChemists and  Druggists. It  was no where pointed out by the
\nplaintiff that\tthe shop  of Chemists  and  Druggists  or  a
\nmedicine shop  would require  frontage of more than 18′. 18′
\nfrontage  on  a\t main  road  in\t a  city  like\tBilaspur  is
\nsufficiently attractive\t and accommodating. The depth of the
\nshop as\t given out  to us  being 90′; therefore landlord has
\nnow in\this possession\tshop admeasuring  18′ x 90′ plus the
\narea of 7′ x 90′ at the back of the suit premises being part
\nof the same building. Would this not provide more than ample
\naccommodation to  the plaintiff\t to start  his business as a
\nChemists and Druggists ? Not one
\n615<\/span>
\nword has  been said  that the accommodation which is already
\nin possession  of the  plaintiff  is  neither  suitable\t nor
\nreasonably  suitable   nor  sufficient\t for  starting\t his
\nbusiness. In  fact the\tvery stand  of plaintiff landlord as
\naccepted by  the High  Court that  some portion\t at the back
\nwould  be   utilised  by   landlord  for   residence   would
\naffirmatively establish\t that landlord\thas more than enough
\nvacant\taccommodation\tin  possession\t for  starting\t his
\nbusiness.\n<\/p>\n
     The difficulty  which the\tHigh Court  experienced\t was
\nwhether a tenant under a decree of eviction could invite the
\nCourt to  take into  consideration the\tevents subsequent to
\npassing of  the decree\twhich if  noticed would non-suit the
\nlandlord.\n<\/p>\n
     The  definition  of  expression  ‘tenant’\tin  the\t Act
\nexcludes from  its operation  a person in possession against
\nwhom any  order or  decree for\teviction has  been made. The
\nHigh Court  referred to\t its earlier  judgment in  Taramal’s
\ncase wherein  it was held that the protection to a statutory
\ntenant lapsed with the passing of a decree and such a person
\nhad no right to bring on record new circumstances which were
\nnot in\texistence at  the date of the passing of the decree.
\nThis approach  wholly  overlooks  the  scheme  of  the\tRent
\nRestriction Act.  The M.P.  Act enables\t a landlord  to seek
\neviction of  a tenant  and obtain  possession under  various
\ncircumstances set out in section 12. If a landlord bona fide
\nrequires  possession  of  a  premises  let  for\t residential
\npurpose for  his own  use, he can sue and obtain possession.
\nHe is  equally entitled to obtain possession of the premises
\nlet for\t non-residential purposes if he wants to continue or
\nstart his  business. If\t he commences  the  proceedings\t for
\neviction on  the ground\t of personal  requirement he must be
\nable to\t allege and  show the  requirement on  the  date  of
\ninitiation of  action in  the Court which would be his cause
\nof action. But that is not sufficient. This requirement must
\ncontinue throughout  the progress of the litigation and must
\nexist on  the date  of the  decree and when we say decree we
\nmean the  decree of  the final\tcourt. Any  other view would
\ndefeat the  beneficial provisions  of a\t welfare legislation
\nlike the  Rent Registration  Act. If the landlord is able to
\nshow his  requirement when  the action\tis commenced and the
\nrequirement continued  till the\t date of  the decree  of the
\nTrial Court and thereafter during the pendency of the appeal
\nby the\ttenant if  the landlord\t comes in  possession of the
\npremises sufficient  to satisfy his requirement, on the view
\ntaken by  the High  Court, the tenant should be able to show
\nthat the subsequent events disentitled the plaintiff, on the
\nonly ground  that here\tis tenant  against whom\t a decree or
\norder for
\n616<\/span>
\neviction has  been passed  and no  additional  evidence\t was
\nadmissible  to\ttake  note  of\tsubsequent  events.  When  a
\nstatutory right of appeal is conferred against the decree or
\nthe order  and once  in exercise  of the  right an appeal is
\npreferred the  decree or  order ceases to be final. What the
\ndefinition of  ‘tenant’ excludes  from its  operation is the
\nperson against whom the decree or order for eviction is made
\nand the\t decree or  order has become final in the sense that
\nit is  not open\t to  further  adjudication  by\ta  court  or
\nheirarachy of  courts. An  appeal is a continuation of suit.
\nTherefore a  tenant against  whom a  decree for\t eviction is
\npassed by  Trial Court\tdoes not lose protection if he files
\nthe appeal  because if\tappeal is  allowed the\tumbrella  of
\nstatutory  protection\tshields\t  him.\t Therefore   it\t  is
\nindisputable that  the decree or order for eviction referred
\nto in  the definition  of tenant  must mean  final decree or
\nfinal order  of eviction.  Once an  appeal against decree or
\norder  of   eviction  is   preferred  the   appeal  being  a
\ncontinuation of\t suit, landlord’s  need\t must  be  shown  to
\ncontinue to  exist at appellate stage. If the tenant is in a
\nposition to show that the need or requirement no more exists
\nbecause of  subsequent events,\tit would  be open  to him to
\npoint out  such events and the Court including the appellate
\ncourt has  to examine,\tevaluate and  adjudicate  the  same.
\nOtherwise the  landlord would derive an unfair advantage. An
\nillustration  would  clarify  what  we\twant  to  convey.  A
\nlandlord was  in a  position to show he needed possession of
\ndemised premises  on the  date of the suit as well as on the
\ndate of\t the decree  of the trial court. When the matter was
\npending in  appeal  at\tthe  instance  of  the\ttenant,\t the
\nlandlord built a house or bungalow which would fully satisfy
\nhis requirement.  If this  subsequent event  is\t taken\tinto
\nconsideration, the landlord would have to be non-suited. Can
\nthe court  shut its  eyes and  evict the  tenant ?  Such  is
\nneither the  spirit nor\t intendment of\tRent Restriction Act
\nwhich was  enacted to  fetter the  unfettered right  of\t re-
\nentry. Therefore  when an  action is brought by the landlord
\nunder Rent  Restriction Act  for eviction  on the  ground of
\npersonal requirement,  his need\t must not  only be  shown to
\nexist at the date of the suit, but must exist on the date of
\nthe appellate  decree, or the date when a higher court deals
\nwith  the   matter.  During  the  progress  and\t passage  of
\nproceeding from\t court to  court if  subsequent events occur
\nwhich if noticed would non suit the plaintiff, the court has
\nto examine  and evaluate  the  same  and  mould\t the  decree
\naccordingly. This position is no more in controversy in view
\nof a  decision of  this Court  in  Pasupuleti  Venkateswarlu
\n(supra) where  Justice Krishna\tIyer speaking  for the Court
\nobserved as under:-\n<\/p>\n
\t  “We affirm  the proposition  that for\t making\t the
\n     right  or\t remedy\t claimed   by  the  party  just\t and
\n     meaningfully as
\n617<\/span>
\n     also legally  and factually  in accord with the current
\n     realities, the  court can, and in many cases must, take
\n     cautions\tcognisance   of\t  events   and\t development
\n     subsequent\t to   the  institution\t of  the  proceeding
\n     provided the  rules  of  fairness\tto  both  sides\t are
\n     scrupulously observed.”\n<\/p><\/blockquote>\n
In order  to  fully  evaluate  the  law\t laid  down  in\t the
\naforementioned extracted  passage it  is worthwhile  to give
\nthe background\tof facts in which it was made. The appellant
\nlandlord in  that case\twas the\t owner of  a large  building
\nwhich  was  leased  out\t in  separate  portions\t to  several
\ntenants.  One  of  such\t tenants  was  the  respondent.\t The
\nlandlord wanted to start a business in automobile spares and
\nclaimed\t eviction   of\tthe   respondent  under\t  the\tRent
\nRestriction Act\t being Andhra Pradesh Buildings (Lease, Rent
\nand Eviction)  Control Act,  1960. The petition was resisted
\nand the\t Rent Controller  dismissed the petition. The appeal
\nof the landlord failed. But in revision the High Court chose
\nto remand  the case  to\t the  appellate\t authority  and\t the
\nappellate authority  in turn  remitted the case to the Trial
\nCourt  for   fresh  disposal   in  accordance  with  certain
\ndirections.  The  landlord  preferred  a  revision  petition
\nagainst the  order of  remand by  the first appellate court.
\nThe High  Court dismissed  the action of the landlord taking
\ncognisance of  a subsequent  event namely  that the landlord
\nacquired possession of a reasonable suitable non-residential
\nbuilding in  the same  town. In\t appeal to this Court it was
\nseriously contended  that it was improper for the High Court
\nto take\t into consideration  the subsequent  events and this
\ncontention was\tnegatived inter\t alia on  the ground  in the
\npassage\t  extracted    above.\tTherefore,    it   is\t now
\nincontrovertible  that\t where\tpossession   is\t sought\t for
\npersonal requirement  it would\tbe correct  to say  that the
\nrequirement pleaded  by the  landlord must not only exist on
\nthe date  of the  action but  must subsist  till  the  final
\ndecree or  an order for eviction is made. If in the meantime
\nevents have  cropped up which would show that the landlord’s
\nrequirement is wholly satisfied then in that case his action
\nmust fail  and in  such a  situation it\t is incorrect to say
\nthat as\t decree or  order for eviction is passed against the
\ntenant he cannot invite the court to take into consideration
\nsubsequent events.  He can  be precluded  from so contending
\nwhen the  decree or  order for eviction has become final. In
\nview of\t the  decision\tin  Pasupuleti’s  case\t(supra)\t the
\ndecision of  the Madhya Pradesh High Court in Taramal’s case
\nmust be\t taken to  have been  overruled and  it could not be
\ndistinguished only  on the  ground that\t the  definition  of
\n‘tenant’ in the Madhya Pradesh Act is different from the one
\nin Andhra Pradesh
\n618<\/span>
\nAct. Therefore,\t the High Court was in error in declining to
\ntake this subsequent event which was admittedly put forth in
\nthe plaint itself into consideration.\n<\/p>\n
     The landlord  wants to  start his\tbusiness as Chemists
\nand Druggists. On his own admission he has in his possession
\na shop\tadmeasuring 18′\t X 90′ plus 7′ X 68′ forming part of
\nthe same  building the remaining small portion of 7′ X 22 is
\noccupied by  the tenant. The landlord has not stated that so
\nmuch space  with 18′ frontage is not reasonably suitable for
\nstarting his  business as Chemist and Druggist. In that view
\nof the\tmatter the  plaintiff’s suit  for  eviction  on\t the
\nground mentioned  in section  12(1)(f) must fail and this is
\nbeing done by not disturbing any finding of fact but relying
\nupon the admission of the plaintiff himself.\n<\/p>\n
     There is  an error\t apparent on  the face of the record
\ninasmuch as  when the  High Court  was faced  with a dilemma
\nwhether the  landlord required\tthe whole  of  the  building
\nincluding  demised   premises  now   in\t possession  of\t the
\nappellant tenant  for starting\this business of Chemists and
\nDruggists  and\t when  the  High  Court\t had  before  it  an
\nindisputable fact  that the respondent landlord has obtained
\nvacant possession  of a\t major portion of the building which
\nwas in\tpossession of  firm M\/s.  Goraldas Parmanand, was it
\nnecessary for him to have any additional accommodation ? The
\nHigh Court  got\t over  this  dilemma  by  observing  and  by
\naffirming the  finding of  the subordinate  courts that\t the
\nremaining portion  of the  premises would  be  used  by\t the
\nlandlord for  his residence  and  even\tthough\tthe  portion
\nutilised for  the purpose  of running  the business would be
\nsmaller compared to the one to be utilized for the residence
\nit would  still not  be violative of sub-section (7) of sec.
\n12 because  such a composite user would not radically change
\nthe purpose  for  which\t the  accommodation  was  let.\tThis
\nfinding\t is  contrary  to  record  and\tpleadings.  Minutely
\nscanning the  plaint presented\tby the landlord there is not
\nthe slightest suggestion that he needs any accommodation for
\nhis residence.\tHe has not even stated whether at present he
\nis residing in some place of his own though he claimed to be
\nresiding in  the same  town. He\t does not  say whether he is
\nunder any  obligation to  surrender that  premises.  Section
\n12(1)(e) specifically  provides\t for  a\t landlord  obtaining
\npossession of  a building let for residential purposes if he
\nbona fide  requires the same for his own use and occupation.
\nBut there  is an  additional condition he must fulfil namely
\nhe must\t further  show\tthat  he  has  no  other  reasonably
\nsuitable residential accommodation of his own in his
\n619<\/span>
\noccupation in  the city\t or town concerned. Utter silence of
\nthe  landlord\ton  this   point  would\t  be  a\t  compelling
\ncircumstance for  the court  not to  go in  search for\tsome
\nimaginary requirement  of the  landlord of accommodation for
\nhis residence. In the context of these facts the Trial Court
\nand the\t first Appellate  Court committed  a manifest  error
\napparent on  the record by upholding the plaintiff’s case by
\nawarding possession  also on  the ground neither pleaded nor
\nsuggested. The\tlandlord must  have been quite aware that he
\ncannot\tobtain\tpossession  of\tany  accommodation  for\t his
\nresidence. There  fore, the  finding of\t the High  Court and
\ncourts\tsubordinate   to  it  that  the\t respondent-landlord
\nrequires possession  of the  whole of the building including
\nthe one\t occupied by the tenant for starting his business as
\nChemists and Druggists as also for his residence is vitiated
\nbeyond repair.\tOnce impermissible  approach to the facts of
\nthe case  on hand  is avoided  although facts  found by\t the
\nCourts are  accepted  as  sacrosanct  yet  in  view  of\t the
\nincontrovertible position  that emerges\t from  the  evidence
\nitself that  the landlord  has acquired major portion of the
\nbuilding in  which he can start his business as Chemists and
\nDruggists he  is not  entitled to  an inch of an extra space
\nunder section 12(1)(f) of the Act.\n<\/p>\n
     Respondent\t landlord  also\t sought\t possession  on\t the
\nground set out in section 12(1)(h) which reads as under:-\n<\/p>\n
\t  “that the  accommodation is  required bona fide by
\n     the landlord  for the purpose of building or rebuilding
\n     or\t making\t  thereto  any\t substantial  additions\t  or
\n     alternations and  that such  building or re-building or
\n     alterations  cannot   be  carried\t out   without\t the
\n     accommodation being vacated.”\n<\/p><\/blockquote>\n
In order  to obtain  possession under  section 12(1)(h)\t the
\nlandlord again has to establish his bona fide requirement of
\nthe accommodation  in  possession  of  the  tenant  for\t the
\npurpose of  building or\t rebuilding or\tmaking\tthereto\t any
\nsubstantial additions  or alterations  and must further show
\nthat such  building or\tre-building or alterations cannot be
\ncarried out  without the  accommodation being  vacated.\t The
\ncase of\t the  landlord\ton  this  point\t is  that  he  wants
\npossession of  the whole  of the building including the suit
\npremises and he has Rs. 8,000 in a fixed deposit account and
\nthat as the building is in a dilapidated condition, he would
\nreconstruct the\t same  and  use\t it  for  himself  both\t for
\nresidence and starting his business.\n<\/p>\n
     If landlord acquires possession under section 12(1)(h),
\nsection
\n620<\/span>
\n18 imposes corresponding obligation which reads as under:-\n<\/p>\n
\t  “18.\tRecovery   of  possession  for\trepairs\t and
\n     rebuilding and re-entry.-(1) In making any order on the
\n     grounds specified\tin clause  (g) or clause (h) of sub-
\n     section (1)  of Sec. 12, the Court shall ascertain from
\n     the tenant whether he elects to be placed in occupation
\n     of the  accommodation or  part thereof from which he is
\n     to be  evicted and,  if the  tenant  so  elects,  shall
\n     record the fact of the before election in the order and
\n     specify therein  the date\ton or which he shall deliver
\n     possession so as to enable the landlord to commence the
\n     work of repairs or building or re-building, as the case
\n     may be.”\n<\/p><\/blockquote>\n
The courts  declined to grant any relief to the tenant under
\nsection 18  on the ground that as the landlord’s requirement
\nis a  composite one,  the tenant  is not  entitled to be re-
\ninducted in  the building  that may  be reconstructed by the
\nlandlord after obtaining possession of the same. Now once it
\nis held\t that the landlord is not entitled to possession for
\nhis residence  and he  has more than enough accommodation in
\nhis possession\tfor carrying  on his business, the composite
\nrequirement disappears.\t Landlord’s  case  will,  therefore,
\nhave to\t be exclusively\t examined in  the context of section
\n12(1)(h).\n<\/p>\n
     Two contentions  were urged  on behalf of the appellant
\nto negative  the case  of the  landlord in  this behalf; one
\nthat the  building is  not in  a dilapidated  condition\t and
\nsecondly it  can be  repaired without vacating the premises.
\nAs all\tthe courts have concurrently found that the building
\nis in  a dilapidated  condition, this finding is entitled to
\nrespect and  it is  not proper\tfor us to interfere with the
\nsame. The  question would  however be  whether the  landlord
\nwants to  reconstruct the  demised portion  of the  premises
\neven though  he is not entitled to acquire possession of the
\nsame for his use and that he would be under an obligation to
\nre-induct the  tenant after  its construction.\tThe  further
\nquestion  is   whether\tthe   landlord\tis   interested\t  in
\nreconstructing the  whole  building.  It  was  alternatively
\ncontended that\tno attempt  is made  to find out whether the
\nlandlord would\tbe in a position to reconstruct that part of
\nthe building which has come in his possession once he is not
\nin a  position to acquire possession of the demised premises
\nfor  his   own\tuse.   This  situation\tcalls  for  a  fresh
\nexamination of\tthe  case  of  the  landlord  under  section
\n12(1)(h). If  landlord is  to be  awarded  possession  under
\nsection 12(1)(h)  on the  footing that,\t that  is  the\tonly
\nground on  which he  can seek possession, it will have to be
\nfound out after giving oppor-\n<\/p>\n
621<\/span><\/p>\n
tunity to  the landlord to prove whether he is interested in
\nre-building that  portion of  the building which is occupied
\nby the appellant and further the court should give necessary
\ndirection under\t section 18.  In that  event the  court will
\nhave also  to ascertain\t whether the portion which is now in
\npossession of the landlord and which he may be interested in
\nreconstructing\tcan  be\t reconstructed\twithout\t the  tenant
\nvacating the  demised premises.\t As the\t whole foundation of
\nthe landlord’s\tcase of composite requirement disappears the
\nmatter has  to be  examined afresh  on the  footing that the
\nlandlord has  come to the court for possession under section
\n12(1)(h)  only\t and  if  he  succeeds\tin  his\t prayer\t for
\npossession on  the ground  mentioned in\t section 12(1)(h) it
\nwould  be  necessary  for  the\tcourt  to  give\t appropriate
\ndirection under section 18 of the Act. As the matter has not
\nbeen examined  from this  angle by  any Court  it has become
\ninevitable, even though the litigation is pending for a long
\ntime, to  remit the case for examination of this aspect. The
\nquestion is  whether the  remand  should  be  to  the  first
\nappellate  court  or  to  the  trial  court.  As  the  first
\nappellate court is the fact finding court, in our opinion it
\nwould be appropriate for us to remit the case, after setting
\naside the decree of the first appellate court as well as the
\nHigh Court, to the first appellate court to ascertain :-\n<\/p>\n
     (i)  Whether   the\t   landlord   is    interested\t  in
\n\t  reconstructing that  portion of the building which
\n\t  is  in   possession  of   the\t tenant\t as  demised
\n\t  premises;\n<\/p>\n
     (ii) Whether the  landlord would  be in  a position  to
\n\t  reconstruct the building in his possession without
\n\t  the tenant  being required  to vacate\t the demised
\n\t  premises; and\n<\/p>\n
     (iii)if the first two queries are answered in favour of
\n\t  the  landlord,  what\tshould\tbe  the\t appropriate
\n\t  directions to\t be given in favour of the tenant as
\n\t  enjoined by S. 18 ?\n<\/p>\n
     Accordingly, this\tappeal is  allowed and the decree of
\neviction made  by the  trial court  and confirmed by the 1st
\nappellate court and also by the High Court is set aside. The
\nprayer of the landlord for possession under section 12(1)(f)
\nis negatived  as he is not entitled to recover possession on
\nthe ground  mentioned in  section 12(1)(f).  The  matter  is
\nremanded to the 1st Appellate Court for the limited purposes
\nset  out   in  the   just  preceding   paragraph.   In\t the
\ncircumstances of  the case  there will\tbe no  order  as  to
\ncosts.\n<\/p>\n
622<\/span><\/p>\n
     PATHAK J.\tThis is\t tenant’s appeal  by  special  leave
\nagainst the  judgment of  the High  Court of  Madhya Pradesh
\narising out of a suit for ejectment.\n<\/p>\n
     The suit was filed by the respondent, Raghunath Prasad.
\nHe claimed  to be  the owner  of a  building in Sadar Bazar,
\nBilaspur. One portion of the building was occupied by a firm
\nGoraldas Permanand.  According to  the\tplaint,\t the  entire
\nbuilding was  in a  dilapidated condition  and the plaintiff
\nintended to  reconstruct the  front portion  of the building
\nand to effect major repairs in the rear portion. In order to
\ndo so it was said to be necessary that the defendants should
\nvacate the  accommodation. In  regard to  the other portion,
\nthe plaintiff  stated that  he had  obtained  a\t decree\t for
\nejectment against  Goraldas Parmanand.\tThe  plaintiff\talso
\nalleged that he intended to start the business of a medicine
\nshop and  for that  purpose he\trequired  the  accommodation
\noccupied by  the defendants  as it  faced the  main road  in
\nSadar Bazar, and that he had no other suitable accommodation
\nin the town for such business.\n<\/p>\n
     The suit  was resisted  by the defendants, and a number
\nof pleas  were taken.  In particular  it was denied that the
\naccommodation occupied\tby them\t was dilapidated and that it
\nwas bona fide required by the plaintiff. It was claimed that
\nin  view  of  the  decree  for\tejectment  against  Goraldas
\nParmanand   the\t   plaintiff   had    suitable\t alternative
\naccommodation for his proposed business.\n<\/p>\n
     The  trial\t  court\t found\tthat  the  entire  building,
\nincluding the  accommodation  occupied\tby  the\t defendants,
\nneeded reconstruction  and repairs, and that for the purpose
\nof his\tprojected business  the plaintiff had bona fide need
\nof the accommodation held by the defendants. It was observed
\nthat the  accommodation occupied  by Goraldas  Parmanand was
\nstill under litigation as an appeal was pending in the case.
\nHolding\t that  the  grounds  under  section  12(1)  (f)\t and
\n12(1)(h) of  the Madhya\t Pradesh Accommodation\tControl\t Act
\nwere made out, the suit was decreed for ejectment.\n<\/p>\n
     The defendants  preferred\tan  appeal,  and  the  first
\nappellate court\t while dismissing  the appeal maintained the
\nfindings  of  the  trial  court\t and  upheld  the  order  of
\nejectment.\n<\/p>\n
     A second  appeal by the defendants was dismissed by the
\nHigh Court  on 17th  April, 1976. During the pendency of the
\nappeal the  defendants moved  an application under Order VI,
\nRule 17\t of the\t Code of  Civil Procedure for leave to amend
\ntheir written statement
\n623<\/span>
\nby adding  the plea  that the  plaintiff had  secured vacant
\npossession of  the adjoining  portion of  the building\tfrom
\nGoraldas Parmanand  in the  year 1972,\tand  that  the\tcase
\nshould be  remanded for\t deciding whether  the accommodation
\nacquired was  reasonably suitable  for starting\t a  medicine
\nshop, the  purpose for\twhich the plaintiff said he required
\nthe accommodation  held by  the defendants.  The High  Court
\nrejected the  application observing  that it  had been moved
\nthree and a half years after the event had taken place, that
\nit was\tnot made  bona fide  but was intended merely to gain
\ntime and  would result\tin grave injustice to the plaintiff.
\nThe High  Court also observed that even if the amendment was
\nallowed it  would not  affect  the  decision  of  the  case,
\nbecause as  the plaintiff’s need extended to entire building
\nhis  securing  vacant  possession  of  one  part  would\t not
\nconclude the  matter. It  was pointed out that the plaintiff
\nintended to  reconstruct the  entire portion of the building
\nincluding the  accommodation occupied  by the defendants, as
\nwell as\t effect major  repairs to  the rear  portion of\t the
\nbuilding. In  place of\tthe shop  of the  defendants with  a
\nfrontage of  7 and a depth of 22 and the adjoining shop with
\na frontage  of 10  and a depth of 90, the plaintiff intended
\nto demolish  the front\tportion of  both the  shops  and  to
\nreconstruct the\t building with\ta new  shop  having  a\twide
\nfrontage of 22′ and a depth of 7′, and to reside in the rear
\nportion of the building. The High Court added that residence
\nin the rear portion of the accommodation would not alter the
\nnature of  the\taccommodation  as  the\tresidence  would  be
\nincidental to  the main\t purpose of carrying on the medicine
\nbusiness in the front portion of the building.\n<\/p>\n
     The defendants  having obtained special leave from this
\nCourt this appeal is now before us.\n<\/p>\n
     As analysis  of the  plaint shows that the ejectment of
\nthe appellants\twas sought  on two  grounds. The  respondent
\nintended to reconstruct the front portion of the dilapidated
\nbuilding and to repair the rear portion and according to him
\nthis required  the appellants  to vacate  the  accommodation
\noccupied by them. That clearly is the ground envisaged by s.
\n12(1)(h), Madhya  Pradesh Accommodation\t Control  Act.\tThat
\nground stood  on its  own. The\trespondent also\t intended to
\nopen a\tmedicine shop  in the front portion of the building,
\nand he\tpleaded that  he had  no other accommodation for the
\npurpose. That  brings into  play s. 12(1)(f) of the Act. The
\nplea  shows   that  as\tthe  dilapidated  building  required
\nreconstruction and repairs, the respondent indended to avail
\nof the\topportunity to\tso effect the structural alterations
\nas to accommodate a medicine
\n624<\/span>
\nshop which  he\tplanned\t to  start  as\ta  business  in\t the
\npremises. This latter ground arose as a sequel to the first.
\nIf the\tfirst ground was made out, the appellants would have
\nto vacate the portion held by them, and if that had been the
\nonly ground  the court would automatically be called upon to
\nconsider s.  18 of the Act, which entitles the tenant at his
\noption to  be reinstated  in a\tportion of the reconstructed
\nbuilding. There\t was the  further ground that the respondent
\nproposed to  start his\town business in the front portion of
\nthe building,  and the\tfinding of  the High  Court that the
\nrespondent wanted  the rear  portion of the building for his
\npersonal residence.\n<\/p>\n
     The  subordinate\tcourts\twere   influenced   by\t the
\nconsideration that  although the  respondent had  obtained a
\ndecree for  ejectment against  Goraldas Parmanand,  the case
\ncontinued to  be the  subject of litigation and therefore it
\ncould not  be said  that the respondent was in possession of
\nalternative accommodation.  However, while the second appeal
\nwas pending  in the  High Court\t the appellants\t applied for
\namendment of  their written  statement to  include the\tplea
\nthat the  respondent had  meanwhile obtained possession from
\nGoraldas Parmanand.  The High  Court declined  to permit the
\namendment. In  doing so,  it seems to me that the High Court
\nerred. It  was an  essential part of the appellants’ defence
\nfrom the  outset  that\tthe  portion  let  out\tto  Goraldas
\nPermanand constituted  suitable\t alternative  accommodation,
\nand therefore  they should  not be ejected. It is immaterial
\nthat the  amendment was\t sought more  than three years after
\npossession of  the portion had passed to the respondent. The
\nHigh Court  was bound  to take\tthe fact  into consideration
\nbecause, as  is well  settled now,  in a  proceeding for the
\nejectment of  a tenant on the ground of personal requirement
\nunder a\t statute controlling the eviction of tenants, unless
\nthe statute  prescribes to the contrary the requirement must
\ncontinue to exist on the date when the proceeding is finally
\ndisposed of  either in\tappeal or  revision, by the relevant
\nauthority. That\t position, to  my mind, is indisputable. The
\nHigh Court  should have\t allowed  the  amendment.  The\tHigh
\nCourt, alternatively  observed that the respondent wanted to
\naccommodate his\t shop in  the front  portion of the building
\nand therefore,\tof necessity,  he would\t require the portion
\noccupied by  the appellants. That conclusion is based on the
\nfindings rendered  by the  courts below,  which findings the
\nHigh Court respected as findings of fact. But the High Court
\nfailed to  note that  both the courts below had proceeded on
\nthe  assumption\t that  the  adjoining  portion\toccupied  by
\nGoraldas Parmanand  was not immediately available on account
\nof litigation.\tIt is  for that\t reason that  permitting the
\namendment sought by the
\n625<\/span>
\nappellants became  relevant and,  indeed, imperative. If the
\nrespondent has obtained possession of that portion, and that
\ndoes not  seem to be disputed, it becomes a serious question
\nfor decision  whether the respondent needs the front portion
\nof the\tbuilding for his medicine shop and, if so, according
\nto dimensions  proposed by him. In the consideration of that
\nquestion the  element of  the respondent’s need for the rear
\nportion of  the building  for his personal residence must be
\nignored. That  need was\t never pleaded in the plaint and, as
\nwill  be   seen\t from\ts.  12(1)(e)  of  the  Act,  several
\nconsiderations need  to be  satisfied before the need can be
\nheld proved.  This aspect  of the  matter was apparently not
\nbrought to  the notice\tof the\tHigh Court  and therefore it
\nfell into the error of taking this element into account.\n<\/p>\n
     My brother\t Desai has  in his  judgment held  that\t the
\nrespondent can\taccommodate his medicine shop in the portion
\nvacated by  Goraldas Parmanand\tand  he\t has  indicated\t the
\ndimensions of  the shop which appear reasonable to him. With
\ngreat respect  I am  unable to concur with what he has said.
\nWhether or  not the  shop should  be located  in  the  front
\nportion of  the building  and what  should be its dimensions
\nwill turn  on the  evidence adduced  by the  parties in that
\nbehalf. The  original record  of the  suit is not before us,
\nand without  knowledge of  the state of the evidence I would
\nrefrain from  a finding on the point. Indeed, it seems to me
\nin the circumstances of this case to be pre-eminently a task
\nto be entrusted to a subordinate court.\n<\/p>\n
     The position which then emerges is this. The respondent
\nhas made  out his  case under s. 12(1)(h) of the Act that he
\nrequires the building, including the portion occupied by the
\nappellants, for\t reconstruction of  the\t front\tportion\t and
\nrepairs to  the rear portion, and that necessitates that the
\nappellants  vacate   their  accommodation.  This  matter  is
\nconcluded by the concurrent findings of fact rendered by the
\ntrial court  and the  first  appellate\tcourt.\tIt  is\talso
\nconcluded by concurrent findings of fact that the respondent
\nneeds a portion of the building for starting the business of
\na medicine shop. What should be the location of the shop and
\nwhat its  dimensions is a matter which remains for decision.
\nAnd  there  is\tthe  further  question\tof  considering\t the
\navailability of\t s. 18\tof the\tAct to\tthe appellants. Both
\nthese questions,  I think,  should  be\tleft  to  the  first
\nappellate court.\n<\/p>\n
     Accordingly, I allow the appeal, set aside the judgment
\nand decree  of the  High Court\tand of\tthe first  appellate
\ncourt and remand
\n626<\/span>
\nthe case  to the  latter court for permitting the appellants
\nto amend their written statement and allowing the parties to
\nlead such  evidence as\tis consequentially  called for,\t and
\nthereafter to  decide the  case afresh\tin the\tlight of the
\nobservations made  above. I  would leave the parties to bear
\ntheir costs.\n<\/p>\n
S.R.\t\t\t\t\t     Appeal allowed.\n627<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Hasmat Rai & Anr vs Raghunath Prasad on 28 April, 1981 Equivalent citations: 1981 AIR 1711, 1981 SCR (3) 605 Author: D Desai Bench: Desai, D.A. PETITIONER: HASMAT RAI & ANR. Vs. RESPONDENT: RAGHUNATH PRASAD DATE OF JUDGMENT28\/04\/1981 BENCH: DESAI, D.A. BENCH: DESAI, D.A. PATHAK, R.S. VENKATARAMIAH, E.S. (J) CITATION: 1981 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-102650","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nHasmat Rai & Anr vs Raghunath Prasad on 28 April, 1981 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/hasmat-rai-anr-vs-raghunath-prasad-on-28-april-1981\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Hasmat Rai & Anr vs Raghunath Prasad on 28 April, 1981 - 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