Law Web: Landmark judgment when court can mould relief taking in to consideration subsequent events

Considering the aforementioned changed circumstances, the High Court

taking note of the subsequent events moulded the relief in the appeal

under Section 96 of the Code of Civil Procedure and the same has been

challenged by the appellants before us. In ordinary course of

litigation, the rights of parties are crystallized on the date the suit

is instituted and only the same set of facts must be considered.

However, in the interest of justice, a court including a court of appeal

under Section 96 of the Code of Civil Procedure is not precluded from

taking note of developments subsequent to the commencement of the

litigation, when such events have a direct bearing on the relief claimed

by a party or one the entire purpose of the suit the Courts taking note

of the same should mould the relief accordingly. This rule is one of

ancient vintage adopted by the Supreme Court of America in Patterson vs.

State of Alabama[11] followed in Lachmeshwar Prasad Shukul vs Keshwar

Lal Choudhury[12]. The aforementioned cases were recognized by this

Court in Pasupuleti Venkateswarlu vs. The Motor and General Traders[13]

wherein he stated that:

“…If a fact, arising after the lis has come to court and has a

fundamental impact It is basic to our processual jurisprudence that

the right to relief must be judged to exist as on the date a suitor

institutes the legal proceeding. Equally clear is the principle that

procedure is the handmaid and not the mistress of the judicial

process. If a fact, arising after the lis has come to court and has a

fundamental impact on the right to relief or the manner of moulding

it, is brought diligently to the notice of the tribunal, it cannot

blink at it or be blind to events which stultify or render inept the

decretal remedy. Equity justifies bending the rules of procedure,

where no specific provision or fairplay is violated, with a view to

promote substantial justice — subject, of course, to the absence of

other disentitling factors or just circumstances. Nor can we

contemplate any limitation on this power to take note of updated facts

to confine it to the trial court. If the litigation pends, the power

exists, absent other special circumstances repelling resort to that

course in law or justice. Rulings on this point are legion, even as

situations for applications of this equitable rule are myriad. We

affirm the proposition that for making the right or remedy claimed by

the party just and meaningful as also legally and factually in accord

with the current realities, the Court can, and in many cases must,

take cautious cognisance of events and developments subsequent to the

institution of the proceeding provided the rules of fairness to both

sides are scrupulously obeyed.”

The abovementioned principle has been recognized in a catena of decisions.

This Court by placing reliance on the Pasupuleti Venkateswarlu Case

(supra), held in Ramesh Kumar vs. Kesho Ram[14] that:

“6. The normal rule is that in any litigation the rights and

obligations of the parties are adjudicated upon as they obtain at the

commencement of the lis. But this is subject to an exception. Wherever

subsequent events of fact or law which have a material bearing on the

entitlement of the parties to relief or on aspects which bear on the

moulding of the relief occur, the court is not precluded from taking a

‘cautious cognizance’ of the subsequent changes of fact and law to

mould the relief.”

This was further followed in Lekh Raj vs. Muni Lal & Ors.[15]. This Court

in Sheshambal (dead) through LRs vs. Chelur Corporation Chelur Building &

Ors.[16] while discussing the issue of taking cognizance of subsequent

events held that:

“19. To the same effect is the decision of this Court in Om Prakash

Gupta case where the Court declared that although the ordinary rule of

civil law is that the rights of the parties stand crystallised on the

date of the institution of the suit yet the court has power to mould

the relief in case the following three conditions are satisfied: (SCC

p. 263, para 11)

“11. … (i) that the relief, as claimed originally has, by reason of

subsequent events, become inappropriate or cannot be granted;

(ii) that taking note of such subsequent event or changed

circumstances would shorten litigation and enable complete justice

being done to the parties; and

(iii) that such subsequent event is brought to the notice of the court

promptly and in accordance with the rules of procedural law so that

the opposite party is not taken by surprise.”

This Court in Rajesh D. Darbar and Ors. vs. Narasinghro Krishnaji Kulkarni

and Ors.[17], a matter regarding the elections in a registered society,

held that the courts can mould relief accordingly taking note of subsequent

events. Furthermore, in Beg Raj Singh vs. State of Uttar Pradesh &

Ors.[18] while deciding on the issue of renewal of a mining lease held

that:

“….A petitioner, though entitled to relief in law, may yet be denied

relief in equity because of subsequent or intervening events i.e. the

events between the commencement of litigation and the date of

decision. The relief to which the petitioner is held entitled may have

been rendered redundant by lapse of time or may have been rendered

incapable of being granted by change in law. There may be other

circumstances which render it inequitable to grant the petitioner any

relief over the respondents because of the balance tilting against the

petitioner on weighing inequities pitted against equities on the date

of judgment.”

Even this Court while exercising its powers under Article 136 can take note

of subsequent events (See: Bihar State Financial Corporation & Ors. vs.

Chemicot India (P) Ltd. & Ors.[19], Parents Association of Students vs.

M.A. Khan & Anr.[20], State of Uttar Pradesh & Ors. vs. Mahindra &

Mahindra Ltd.[21] )

35. Thus, when the relief otherwise awardable on the date of commencement

of the suit would become inappropriate in view of the changed

circumstances, the courts may mould the relief in accordance with the

changed circumstances for shortening the litigation or to do complete

justice.

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4887 OF 2014

Gaiv Dinshaw Irani Vs. Tehmtan Irani & Ors.

Citation;AIR 2014 SC 2326

Pinaki Chandra Ghose, J.

1. Leave granted.

2. These appeals are directed against the judgment and order dated

September 30, 2005 in First Appeal No. 970/1995 with First Appeal

No.1075/1995 passed by the High Court of Bombay. The High Court allowed

both these appeals; set aside the judgments and decree passed by the

Trial Court in both the suits; and decreed both the suits, i.e., Long

Cause Suit No.1914 of 1983 as well as Long Cause Suit No.1877 of 1985 in

terms of the prayers. The High Court further directed the defendants to

immediately place the plaintiffs in possession of the five flats which

were kept reserved by virtue of the interim orders passed by the High

Court from time to time; and the stay on the Bombay Municipal

Corporation regarding the development of the remaining property was

directed to be vacated.

3. The facts of the case briefly are as follows:

1. One Bomanji Irani, who is the predecessor of appellants herein, acquired

tenancy rights in respect of the premises admeasuring 6500 sq. yds.,

known as ‘Irani Wadi’, situated at Mazgaon, Mumbai. This premises

comprised of residential Bungalow, open land used for Nursery, and

Mali’s quarters, hereinafter referred to as the suit premises. Bomanji

executed a Will dated October 15, 1934 in favour of his children and

wife Daulatbai, appointing Daulatbai as a residuary legatee of the Will.

Bomanji Irani died on September 27, 1946 leaving behind his wife

Daulatbai; five sons, namely (1) Ardeshir (2) Jehangir (3) Framroze (4)

Dinshaw and (5) Homi; and three daughters, namely (1) Ketayun (2) Homai

and (3) Nargis. The Will was probated with consent of all the legal

heirs and Daulatbai had rights over the suit premises and the tenancy

rights which, as claimed, cannot be bequeathed as per law. Daulatbai

executed a Will on January 2, 1949 in favour of her son Dinshaw who was

the original defendant No.2. However, the said Will was not probated.

2. The then Bombay Municipal Corporation (being Respondent No.6,

hereinafter referred to as ‘BMC’) acquired ownership rights in respect

of the suit premises and on September 19, 1961 issued eviction notices

to the heirs and legal representatives of Bomanji, comprising Daulatbai

and five sons. In response to the eviction notices, the legal heirs

and representatives of Bomanji objected to the same but they consented

to the tenancy being transferred in the name of Dinshaw Irani (original

defendant No. 2).

3. On February 3, 1962 Daulatbai addressed a letter to the BMC requesting

for transfer of rent bills in the name of her son Dinshaw (original

defendant No. 2). The BMC ignored the objection raised and passed an

eviction order dated October 24, 1963 against the heirs and legal

representatives of Bomanji. Against the said eviction order passed by

the BMC, the heirs and legal representatives of Bomanji jointly filed a

suit as joint tenants, being Suit No.5451/1963. Daulatbai died during

the pendency of this suit. On July 11, 1977 the said suit was decreed in

favour of the plaintiffs and the order passed by the BMC terminating the

tenancy was set aside. By letter dated September 18, 1981, BMC

transferred the tenancies in favour of Dinshaw, subject to certain

conditions including that a portion of land should be surrendered to

BMC, which was objected to by respondent No.5 (Peshotan, son of Homi

Irani). Consequently, on the request of Dinshaw Irani the tenancy in

respect of Mali’s quarters, Nursery garden, florist shop and farm house

was transferred in favour of Dinshaw Irani. Respondent No.1 (son and

legal heir of deceased Ardeshir Irani) and respondent No.5 again

objected to the transfer of tenancy in the name of Dinshaw Irani.

4. Dinshaw Irani submitted a proposal to the BMC for handing over 4000 sq.

yds. of the suit premises to the Corporation by retaining the remaining

2500 sq. yds. for himself. He also stated in the proposal that as his

two brothers do not want to move in with him, they should be provided

with alternative accommodation.

5. The respondents (legal heirs of Homi and Ardeshir Irani) on coming to

know about the transfer of tenancy of the suit premises, issued a notice

dated October 28, 1982 under Section 527 of the Bombay Municipal

Corporation Act, 1888 (hereinafter referred to as ‘the Act’) and

subsequently on March 23, 1983, filed Long Cause Suit No.1914 of 1983

challenging transfer of tenancy before the City Civil Court at Bombay.

During the pendency of the aforementioned suit, Dinshaw agreed to

surrender the tenancy in respect of the suit premises in favour of BMC

and the Corporation in exchange granted a lease of sixty years on a part

of the suit premises, being land admeasuring 1152 sq mts. bearing CS No.

366-67 (Part) Mazgaon and on November 30, 1983 lease deed of the said

plot in favour of Dinshaw Irani was executed.

6. Admittedly, Dinshaw Irani began construction on the said plot of land

admeasuring 1152 sq mts. in September, 1984. Respondent Nos.1 to 5 filed

a suit being Long Cause Suit No.1877 of 1985 before the City Civil Court

at Bombay, challenging the surrender of tenancy and the grant of said

fresh lease in favour of Dinshaw Irani. Dinshaw Irani filed written

statements in both the suits and denied the averments in the plaints and

claimed that he alone was the tenant of the suit premises and had

carried out the business of nursery/florist till his mother’s lifetime

and thereafter he was entitled to the tenancy in light of the Wills of

deceased Bomanji and Daulatbai. The BMC being defendant No.1 in both the

suits also filed its written statement in Long Cause Suit No.1914 of

1983 stating that the tenancy was transferred in the name of Dinshaw

Irani on the basis of the documents produced by him in support of the

same (being the Wills of deceased Bomanji and Daulatbai; the partnership

deed between Daulatbai and Dinshaw Irani and the consent letter given by

the other sons of Bomanji and Daulatbai). During the pendency of the

said suit, Dinshaw Irani expired on December 2, 1988.

7. The plaintiffs, who are respondent Nos.1 to 5 herein, sought certain

interim reliefs by filing Notice of Motions in both the long cause

suits. The Trial Court on April 11, 1988 disposed of the Notice of

Motions and granted an interim injunction restraining the defendants in

the suit from disturbing the possession of the plaintiffs of certain

parts of the bungalow which was occupied by them. Dissatisfied with this

order, the plaintiffs preferred Appeal against Order (A.O.) No.438/1988

before the High Court and the learned Single Judge in Civil Application

No.1481 of 1988 passed an order dated April 20, 1988 allowing the

defendants to proceed with the construction work subject to the

condition that during the pendency of the appeal and ninety days after

the defendants were to retain five flats and rights arising therefrom.

While disposing of A.O. No.438 of 1988 on October 16, 1991, the High

Court directed that both the suits be disposed by the Trial Court by

April, 1992; that the restriction for creation of third party rights

with respect to the five flats reserved be continued; and the interim

order in Notice of Motion No.1459 of 1985 restraining the defendants

from disturbing the possession of the plaintiffs in the suit premises be

continued.

8. The City Civil Court dismissed both the suits by two separate judgments.

The findings of the Trial Court in Long Cause Suit No.1914 of 1983 was

that the plaintiffs failed to prove joint tenancy and therefore the

transfer of rent bills in the name of defendant No.2 was not illegal. In

Long Cause Suit No.1877 of 1985, the Trial Court held that as the

plaintiffs failed to prove their case of joint tenancy, the surrender of

tenancy in favour of BMC was not hit by an illegality and the lease

granted to him is legal and valid.

9. Aggrieved by the aforementioned judgments passed by the Trial Court, the

respondents preferred two separate appeals being First Appeal No.970 of

1995 filed against order in Long Cause Suit No. 1914 of 1983 and First

Appeal No.1075 of 1995 filed against Long Cause Suit No. 1877 of 1985.

10. The High Court by a common judgment and order dated September 30, 2005,

allowed both the first appeals and held that the original plaintiffs

(respondents herein) were joint tenants with original defendant No.2

(appellant herein); consequently, the surrender of tenancy by defendant

No.2 in favour of BMC was illegal and the transfer of tenancy by BMC in

the name of defendant No.2 was incorrect, void and not binding upon the

plaintiffs. Resultantly, the judgments and orders of the Trial Court

were set aside and the reliefs prayed for in the suits filed by the

plaintiffs were allowed by the High Court. However, the High Court

directed appellants to handover possession of the five flats to

respondent Nos.1 to 5. Aggrieved by the judgment and order passed by the

High Court, these appeals have been filed before us.

4. The appellants before us have challenged the impugned judgment and order

passed by the High Court mainly on five grounds and made a proposal

during the course of hearings for balancing the equities.

5. Learned senior counsel appearing on behalf of the appellants submitted

that the transfer of tenancy in favour of the appellants by BMC was

correct on the grounds firstly, that the appellants derive their title

from the probated Will of Bomanji and Will of Daulatbai and the letter

dated October 25, 1962 issued by all the heirs of Bomanji consenting to

transfer of tenancy in favour of Dinshaw and the letter dated February 3,

1962 issued by Daulatbai to BMC requesting for transfer of tenancy in

favour of Dinshaw. Secondly, that Daulatbai as a residuary legatee

inherited the tenancy rights and took charge of the florist business with

her son Dinshaw as noted by the Trial Court; furthermore, Daulatbai by

her Will, transferred the nursery business to Dinshaw and transferred

the tenancy in favour of Dinshaw by letters dated October 25,1961 and

February 3, 1962, Thirdly, the nursery business and the suit premises are

exclusively in the control of Daulatbai and Dinshaw; and that Ardeshir

being the step-son of Daulatbai was not entitled to inherit from her and

the three sons of Bomanji, namely, Ardeshir, Homi and Jahangir are not

concerned with the nursery business and the suit premises. Fourthly, the

Trial Court after properly considering documents on record concluded that

the appellants were in exclusive and uninterrupted possession of the suit

premises and they were exclusively doing the nursery business as absolute

owners, a fact which has not been challenged by the respondents. Fifthly,

the High Court has incorrectly given a finding that neither Will nor

consent letter confer any exclusive right on the appellants on the ground

that Daulatbai and five sons of Bomanji had jointly filed Suit No.5451

of 1963 against BMC to challenge the eviction order without considering

that the nursery business was being carried on by Daulatbai and Dinshaw

and that nowhere the factum of joint tenancy has been admitted in the

said suit, which never determined the issue of joint tenancy. Sixthly,

that BMC after duly considering all the facts and relevant documents,

correctly transferred the tenancy in favour of Dinshaw. Seventhly, the

plaintiffs in the suit had not made any prayer for declaration of right

to joint tenancy or claimed any other rights or possession. Lastly, that

High Court did not consider the cogent findings of the Trial Court,

especially the finding that effect of the transfer of rent receipts would

be that the respondents are dispossessed from the suit premises and at

least from the nursery which was a distinct tenancy and in the absence of

a prayer for possession, the suit was bad in law.

6. The second submission made by the learned senior counsel appearing on

behalf of the appellants is that the High Court acted in excess of its

powers in granting the relief which was beyond the subject matter of the

suit in an appeal under Section 96 of the Code of Civil Procedure, 1908,

as there were no prayer and pleadings for the same. In light of the same,

it has been contended that the relief claimed in both the suits was

limited to the transfer of rent receipts by BMC in favour of Dinshaw, the

surrender of tenancy by Dinshaw and subsequent grant of lease in his

favour by BMC. Furthermore, there was no claim for relief of partition as

granted by the High Court and/or the surrender of tenancy and permission

to develop balance suit premises by respondent No.6, being BMC. The

learned counsel has relied on the cases of Shiv Kumar Sharma vs. Santosh

Kumari[1] and Bachhaj Nahar vs. Nilima Mandal and Anr.[2] in support of

his contention. It is further contended that the High Court erred in

holding that the building of the appellant would become illegal as the

respondents claim a right in the existing bungalow and would also get a

right in the 1152 sq.mts. plot leased to Dinshaw if the original suit is

decreed. That the lease of 1152 sq. mts. was based entirely on needs and

entitlement of Dinshaw and it was in lieu of his tenancy rights alone in

the compound of Irani Wadi except the residential portion in possession

of his two brothers (Ardeshir and Homi) for whom BMC had undertaken to

provide them accommodation. Furthermore, it was contended that if BMC

does not honour its resolution of providing alternative accommodation to

respondent Nos. 1 to 5, subject to their rights, then the entire property

of 5950 sq.mts. must revert back to Dinshaw Irani and that BMC then has

no right to develop the same along with a builder, which is in violation

of the status quo order dated November 18, 2005 passed by this Court.

That there was no prayer for possession of any flats entitled to

respondent Nos. 1 to 5 and the High Court’s order that respondent Nos.1

to 5 representing only two branches are entitled to five flats as 6/15th

share is incorrect without any specific pleading and in the absence of a

dispute regarding the inter se rights of the parties.

7. It is also submitted by the appellants that they expended the entire

amount in the construction of the building and they had to rent out nine

flats for the same and out of the remaining five flats the appellants are

residing in two flats and one is given on leave and license. The effect

of the plaintiffs’ suit (being respondent Nos.1 to 5) being decreed is

that entire 6500 sq. yards be surrendered to BMC and then the shares of

all heirs of Bomanji, be worked out. The same could not have been

directed or determined in the absence of any pleadings even if it is

assumed that the respondent Nos. 1 to 5 have a share in the 1152 sq.mts.

plot leased to the appellants.

8. The third ground raised by the learned senior counsel on behalf of the

appellants is that BMC being respondent No.6 herein can develop the

balance plot only in terms of the resolution dated September 28, 1983. In

this connection, it has been submitted that the lease of 1152 sq.mts.

plot granted to Dinshaw was subject to the condition that BMC provides

alternate accommodation to his two brothers as per the resolution. That

in case of BMC’s inability to honour the said resolution dated September

28, 1983, the entire property i.e. 5950 sq. mts. must revert back to

Dinshaw and BMC has no right to develop the same as it will be in

violation of the status quo order passed by this Court and that in no

event respondent Nos. 1 to 5 have any right in 1152 sq.mts. plot and even

if they have any right, then they are to be accommodated by BMC on the

balance land. Thus, it was requested that it will be just and equitable

if BMC accommodates respondent Nos.1 to 5 on balance land or as per the

resolution dated September 28, 1983.

9. Fourth submission made on behalf of the appellants is that the finding

on fraud could not have been granted in the absence of pleadings and

evidence to make out a case of fraud. In this regard, learned senior

counsel has placed reliance on the case of Sangramsinh P. Gaekwad & Ors.

vs. Shantadevi P. Gaekwad & Ors[3].

10. The last and final ground raised by the learned senior counsel for the

appellants is that in no event respondent Nos. 1 to 5 are entitled to

five flats. It is submitted that out of the fourteen flats the appellants

are residing in two flats, one is vacant and the other is given on leave

and licence. That only an injunction was granted by the High Court in

respect of the five flats out of which three were occupied by the

appellants and two were reserved for the Government under the Urban Land

(Ceiling & Regulation) Act, 1976. Therefore, not more than three flats

could be meant for respondents Nos.1 to 5. That the direction of the High

Court bestowing five flats is incorrect in the absence of any specific

pleading in the suit or appeal and without any affidavit filed in this

regard by the plaintiffs/respondents and without the appellants placing

their case regarding entitlement of respondent Nos. 1 to 5, who represent

only two branches and not all the five brothers. It has been argued that

the order of the High Court granting five flats to the respondents

gravely prejudices the rights of the appellants in the light of the above

and that they will be evicted from their homes. Therefore, it has been

prayed that the respondents be granted only three flats.

11. Learned counsel appearing on behalf of respondent No.1 has contended

before us that that the claim of the appellants that Dinshaw solely

acquired the tenancy rights is false. In support of this contention, he

submitted that as stated by the Trial Court there can be no bequest of

tenancy rights and same did not devolve upon Disnhaw through the Wills of

Bomanji and Daulatbai. Furthermore, the Will of Daulatbai was not

probated and no right is asserted by such a Will. Even if reliance is

placed on the Will of Daulatbai, it clearly states that only nursery

business and not the tenancy is bequeathed to Dinshaw. That BMC and all

the parties including Daulatbai and Dinshaw, always considered all the

heirs of Bomanji to be joint heirs evident from the material on record.

Furthermore, the City Civil Court in Suit No. 5451 of 1963 clearly

recorded that undisputedly after Bomanji’s death his sons and Daulatbai

became the tenants in the suit premises; Dinshaw from the death of

Bomanji till 1977 asserted that all the sons of Bomanji were monthly

tenants with respect to the property and in judicial proceedings leading

to decree in favour of Dinshaw on that basis. The fact also attained

finality in Suit No.5451 of 1963 and the same stand would be barred by

principle of res judicata and the same has been noted by the High Court.

12. Learned counsel appearing for respondent No. 1 has also contended that

reliance by BMC on letter dated October 25, 1961 is mala fide and

erroneous. BMC purported to transfer the tenancy exclusively in the name

of Dinshaw Irani by relying upon the said letter which is two decades

old, addressed on behalf of Daulatbai and five sons stating that they had

no objection to the transfer of tenancy in the name of Dinshaw. That the

said letter was issued for convenience sake to enable Dinshaw to contest

the eviction suit of 1963, wherein it was pleaded by all the heirs of

Bomanji that they are joint tenants and the position continued till 1977

when Suit No.5451 of 1963 was decreed; and that BMC in light of the said

decree to which it was also a party, could not have accepted surrender of

tenancy exclusively by Dinshaw on the basis of the said letter. That the

High Court after considering the evidence on record and conduct of the

parties, correctly held that the said letter was for the transfer of rent

receipts only, in favour of Dinshaw. That the reliance placed by BMC on a

two decades old letter for a transfer is incorrect. Furthermore, even if

the consent given in 1961 is assumed to be correct then it must be noted

that same stood expressly withdrawn by letter dated December 22, 1980

which was admittedly received by BMC on February 2, 1981, before the

letter of 1961 was acted upon. It has been contended that BMC despite

being aware of the revocation of the consent, transferred the tenancy

exclusively in favour of Dinshaw and suppressed the same from the

respondents even after the transfer and stated that it “proposed to

transfer tenancy in favour of Dinshaw” in a subsequent letter. Thus, the

High Court has correctly noted that conduct of BMC lacked bonafide and

such finding has not been challenged by the BMC.

13. The next submission made by the learned counsel for respondent No. 1 is

that the moulding of relief by the High Court is just and equitable and

in fact confers the appellants with benefits more than they are entitled,

therefore requiring no interference from this Court. In light of the

same, it has been put forth by the learned counsel that having found the

transfer of tenancy to be illegal, all the later developments become void

ab initio; and to reverse the position the course would have been to

demolish the building constructed on the plot leased to Dinshaw. Learned

counsel representing respondent No.1 further submitted that the High

Court correctly moulded the relief and directed that the five flats be

handed over to the respondents, as the construction was allowed to be

made on the plot subject to the outcome of the first appeal and on the

condition that five flats be kept apart. Furthermore, it has been

submitted that appellants representing only one branch are receiving nine

flats and the full other wing of the building comprising of fourteen

tenements rented out by the appellant, whereas the respondents

representing two branches are receiving only five flats. It is also

contended that the appellants have deprived the respondents of their

extremely valuable tenancy rights in respect of a huge original plot and

in an agreement with BMC accepted a much smaller newly allotted plot on

which the construction was at the risk of the appellants, in this factual

matrix the grievance of the appellants that they have incurred

construction costs does not hold good. Furthermore, the respondents have

been enjoying the benefits arising from the new plot leased to Dinshaw by

BMC since 1997.

14. In addition to the above, respondent No. 1 has also challenged the

submissions made by the appellants. Firstly, it has been stated that the

appellants without pointing out any perversity in the order of the High

Court seek re-appreciation of the entire facts and evidence before this

Court. Secondly, it has been pointed by the learned counsel that

Daulatbai even after death of Bomanji accepted all the sons as joint

tenants and the stand of the appellants is an afterthought. Furthermore,

the reliance on the un-probated Will of Daulatbai is also incorrect in

light of Section 213 of the Indian Succession Act, 1925 which clearly

states that in case of Wills made by Parsis no legatee can claim any

right unless the same is probated; and that the Will only transfers

business of nursery. Thirdly, it has been stated that the appellants’

pleading that BMC should provide alternate accommodation to respondent

Nos.1 to 5 is an admission of their rights; in fact, till date three

respondents are staying in the bungalow on the suit premises. Fourthly,

the appellants are estopped from making an argument contrary to their

stand taken in the 1963 suit. Fifthly, it has been submitted that the

contention of the appellants that BMC can develop property only in terms

of resolution dated September 28, 1983; or any other grievance with BMC

cannot be agitated in the present proceedings; and that in face of an

adverse order the appellants cannot shift their responsibility to BMC,

thereby confronting the respondents with a fait accompli. Learned counsel

for respondent No.1 has finally contended that the submission of the

appellants with regard to the findings of the High Court that the

transfer of tenancy was ‘fraudulent’ or the same was done ‘fraudulently’

is beyond the pleading and therefore ought to be expunged, is baseless as

the respondents already contended that the transfer of tenancy is ‘mala

fide’.

15. Learned counsel for respondent Nos. 2 to 5 and 13 to 14 have submitted

that after the demise of Bomanji on September 27, 1946, his tenancy

devolved upon his widow and five sons which was duly accepted by BMC.

Thereafter, one of the five sons tried to usurp the entire tenancy in his

favour and the same was the subject matter under challenge in Long Cause

Suit No.1914 of 1983. However, during the interregnum, the High Court

restrained original defendant No.1 from creating any third party rights.

It was vehemently argued that the appellants’ case was absolutely

misconceived and baseless as is evident from the observations of the

City Civil Court that: (i) there could be no bequest of tenancy rights;

and (ii) that an unprobated Will was only with respect to the florist

business and not the tenancy rights in aggregate.

16. Respondent Nos. 2 to 5 and 13 to 14 also submitted that it is admitted

by Daulatbai that she along with her five sons became monthly tenants of

the suit premises. Upon show cause notices being issued by BMC to all the

legal heirs of Bomanji, the aforesaid position came to be reiterated by

the latter. It is alleged that this reiteration, in itself, buttressed

the point that they were joint-tenants in possession of the suit

premises. That the falsity of the claim of the appellants is crystal

clear in light of the fact that they along with the respondents filed

Suit No.5451 of 1963 challenging the eviction notices served by BMC.

Furthermore, the City Civil Court by judgment dated October 11, 1977 also

observed that after the demise of Bomanji, the appellants and respondents

therein had become the tenants of the suit property, a fact which

attained finality as the same was never challenged. It was also submitted

that the plea of adverse possession argued before the High Court had

failed to cut any ice with the Division Bench in that no issues were

framed and no evidence was led by the appellants.

17. It was further submitted by respondent Nos. 2 to 5 and 13 to 14 that in

spite of the letter dated October 25, 1961 purportedly authored by

Daulatbai and her five sons to BMC seeking transfer of tenancy in the

name of Dinshaw, BMC served all of them with eviction notices and they

jointly replied to the same. Furthermore, in light of the unchallenged

decree dated October 11, 1977 where all the legal heirs were stated to be

‘joint-tenants’, the purported ‘consent letter; loses its efficacy. Thus,

the High Court has correctly observed that the intent of the consent

letter was to transfer the rent receipts only in the name of Dinshaw It

is also submitted that in the wake of the letter dated February 2, 1982

addressed to P.H.Irani by the Senior Ward Officer, E-Ward seeking

objections to the transfer of rent receipts in favour of Dinshaw Irani

indicates that objections to the transfer of tenancy were not decided and

the rent receipts were not transferred, thereby bringing the legality of

the transfer of tenancy under a cloud of doubt. In addition thereto, the

learned counsel has drawn our attention to the fact that BMC transferred

the tenancy way back in 1981 based on a two decades old letter without

going into the requisite clarification from the parties, especially in

light of the fact that the respondents were averse to transfer of rent

receipts in favour of Dinshaw Irani or his son. It has been contended

that such conduct of BMC in acting after a period of about 20 years

raises eyebrows, and the same is rightly termed as ‘mala fide’. Finally,

it is contended that the relief granted by the High Court was based on

equity and once the transfer of tenancy was held to be illegal, whatever

illegality follows will be ‘void ab initio’.

18. Learned senior counsel appearing on behalf of respondent No.6 being

BMC, submitted that the appellants filed this appeal with the mala fide

intention to usurp the BMC land i.e. the suit premises. It is submitted

that the dispute in the present case has been narrowed down to five flats

by the courts below, which are solely in possession of the appellants

herein. That by the impugned order dated September 9, 2005 the High Court

allowed the first appeals filed by respondent Nos.1 to 5 herein and

directed the appellants to hand over five flats kept reserved. The High

Court specifically observed that construction on the ‘new plot’ by the

appellants was allowed by virtue of the interim order passed by the High

Court during the pendency of the suits before the trial court, and five

flats were reserved to protect the interest of respondent Nos.1 to 5.

19. It is further submitted on behalf of respondent No.6 that the statement

that the family member of the appellants are occupying these five flats,

is false and frivolous and the same is made to gain sympathy of this

Court. Secondly, it is submitted that as per the orders passed by the

High Court, conditional permission was granted to the appellant to

proceed with the construction, and the High Court was correct in handing

over the five flats to respondent Nos.1 to 5. That the original defendant

No.2 and the respondents before the High Court have filed this appeal by

special leave and this Court has passed status quo order in respect of

the suit premises. Thirdly, it is submitted that the Municipal

Corporation of Greater Mumbai’s (then BMC) development work has been

stalled due to the status quo order passed by this Court, and that the

appellant obtained the same without serving any notice upon respondent

No.6. It is further submitted that BMC requires the land for development

of Municipal School, Municipal Employees Quarters and Staff Quarters and

it is unable to carry out the same due to the ongoing dispute between the

family members. Fourthly, it is submitted that irrespective of the

outcome of the present appeals, respondent No.6 would be entitled to 4798

sq. mts. out of the suit premises which was acquired by it in the year

1984. Fifthly, it is submitted that the appellants are trying to

challenge the surrender of 4798 sq. mts. of land in favour of BMC by this

appeal and the same is illegal as they never challenged the said

surrender of tenancy done as far back as on January 12, 1984. Instead,

they have supported the said surrender of tenancy throughout and are

therefore estopped from taking a stand to the contrary at this stage. It

is therefore the submission of BMC that the present appeal by special

leave petition be dismissed and the parties be directed to comply with

the impugned order dated September 30, 2005 passed by the High Court.

20. After considering the arguments an submissions and perusing the

documents placed on record we are of the opinion that the present appeals

stem out of two primary issues firstly, the issue of rights over the

tenancy; and secondly, the validity of the judgement and order of the

High Court is challenged on the ground that it is in excess of powers of

an appellate Court under Section 96 of the Code of Civil Procedure.

21. The appellants have claimed before us that leasehold tenancy rights can

be bequeathed as against the holding of the Trial Court in Long Cause

Suit No.1914 of 1983 which has held that “it is well established

principle that tenancy rights cannot be bequeathed”. The divesting of

tenancy rights by means of a Will is a highly debated topic and is

subject to the tenancy laws of the concerned State. In the present

matter, the tenancies being the suit premises are owned by the local

authority of Mumbai and are subject to the State Act being the Bombay

Rents, Hotel And Lodging House Rates Control Act, 1947 (hereinafter

referred to as the “Bombay Rent Control Act). The said Act, since

repealed, exempts the present tenancy from its purview as per Section 4

(1). The BMC Act is also silent on this aspect. Therefore, we will

discuss the existing jurisprudence regarding the same.

22. In the case of Gian Devi Anand vs. Jeevan Kumar & Ors.[4] four Judges

of a five-Judge Constitution Bench held that the rule of heritability

extends to statutory tenancy of commercial as well as residential

premises in States where there is no explicit provision to the contrary

and tenancy rights are to devolve according to the ordinary law of

succession unless otherwise provided in the statute. This Court in

Bhavarlal Labhchand Shah vs. Kanaiyalal Nathalal Intawala[5] referring

to the Bomaby Rent Control Act, 1974 held that in a contractual tenancy,

a tenant of a non-residential premises cannot bequeath under a Will his

right to such tenancy in favour of a person who is a stranger to the

family, being not a member of the family, carrying on business. With

respect to residential tenancy, this Court left the question open and

held:

“…we do not propose to deal with the wider proposition that a

statutory tenancy which is personal to the tenant cannot be bequeathed

at all under a will in favour of anybody. We leave the said question

open.”

23. This Court in Vasant Pratap Pandit vs. Dr. Anant Trimbak Sabnis[6]

while deciding upon the rights of a statutory tenancy under the Bombay Rent

Control Act was of the opinion that bequest of tenancy rights is

impermissible and stated that:

“14. From a plain reading of Section 5(11)(c)(i) it is obvious that

the legislative prescription is first to give protection to members of

the family of the tenant residing with him at the time of his death.

The basis for such prescription seems to be that when a tenant is in

occupation of premises the tenancy is taken by him not only for his

own benefit but also for the benefit of the members of the family

residing with him. Therefore, when the tenant dies, protection should

be extended to the members of the family who were participants in the

benefit of the tenancy and for whose needs as well the tenancy was

originally taken by the tenant. It is for this avowed object, the

legislature has, irrespective of the fact whether such members are

‘heirs’ in the strict sense of the term or not, given them the first

priority to be treated as tenants. It is only when such members of the

family are not there, the ‘heirs’ will be entitled to be treated as

tenants as decided, in default of agreement, by the court. In other

words, all the heirs are liable to be excluded if any other member of

the family was staying with the tenant at the time of his death.” When

Section 15, which prohibits sub-letting, assignment or transfer, is

read in juxtaposition with Section 5(11)(c)(i) it is patently clear

that the legislature intends that in case no member of the family as

referred to in the first part of the clause is there the ‘heir’, who

under the ordinary mode of succession would necessarily be a relation

of the deceased, should be treated as a tenant of the premises

subject, however, to the decision by the court in default of

agreement. The words “as may be decided in default of agreement by the

Court” as appearing in Section 5(11)(c)(i) are not without

significance. These words in our view have been incorporated to meet a

situation where there are more than one heirs. In such an eventuality

the landlord may or may not agree to one or the other of them being

recognised as a ‘tenant’. In case of such disagreement the court has

to decide who is to be treated as ‘tenant’. Therefore, if ‘heir’ is to

include a legatee of the will then the above-quoted words cannot be

applied in case of a tenant who leaves behind more than one legatee

for in that case the wishes of the testator can get supplanted, on the

landlord’s unwillingness to respect the same, by the ultimate decision

of the court. In other words, in case of a testamentary disposition,

where the wish or will of the deceased has got to be respected a

decision by the court will not arise and that would necessarily mean

that the words quoted above will be rendered nugatory. What we want to

emphasise is it is not the heirship but the nature of claim that is

determinative. In our considered view the legislature could not have

intended to confer such a right on the testamentary heir. Otherwise,

the right of the landlord to recover possession will stand excluded

even though the original party (the tenant) with whom the landlord had

contracted is dead. Besides, a statutory tenancy is personal to the

tenant. In certain contingencies as contemplated in Section

5(11)(c)(i) certain heirs are unable to succeed to such a tenancy. To

this extent, a departure is made from the general law.”

24. In Sangappa Kalyanappa Bangi vs. Land Tribunal, Jamkhandi & Ors.[7] a

dispute pertaining to the Karnataka Land Reforms Act, 1961 this Court held

as under:

“The assignment of any interest in the tenanted land will not be

valid. A devise or a bequest under a Will cannot be stated to fall

outside the scope of the said provisions inasmuch as such assignment

disposes of or deals with the lease. When there is a disposition of

rights under a Will, though it operates posthumously is nevertheless a

recognition of the right of the legatee thereunder as to his rights of

the tenanted land. In that event, there is an assignment of the

tenanted land, but that right will come into effect after the death of

the testator. Therefore, though it can be said in general terms that

the devise simpliciter will not amount to an assignment, in a special

case of this nature, interpretation will have to be otherwise.”

25. On the contrary this Court in State of West Bengal & Anr. vs. Kailash

Chandra Kapur & Ors.[8] while deciding upon the rights of a leasehold

land owned by the Government held that :

“Transfer connotes, normally, between two living persons during life;

Will takes effect after demise of the testator and transfer in that

perspective becomes incongruous. Though, as indicated earlier, the

assignment may be prohibited and the Government intended to be so, a

bequest in favour of a stranger by way of testamentary disposition

does not appear to be intended, in view of the permissive language

used in clause (12) of the covenants. We find no express prohibition

as at present under the terms of the lease. Unless the Government

amends the rules or imposes appropriate restrictive covenants

prohibiting the bequest in favour of the strangers or by enacting

appropriate law, there would be no statutory power to impose such

restrictions prohibiting such bequest in favour of the strangers. It

is seen that the object of assignment of the government land in favour

of the lessee is to provide him right to residence. If any such

transfer is made contrary to the policy, obviously, it would be

defeating the public purpose. But it would be open to the Government

to regulate by appropriate covenants in the lease deed or appropriate

statutory orders as per law or to make a law in this behalf. But so

long as that is not done and in the light of the permissive language

used in clause (12) of the lease deed, it cannot be said that the

bequest in favour of strangers inducting a stranger into the demised

premises or the building erected thereon is not governed by the

provisions of the regulation or that prior permission should be

required in that behalf. However, the stranger legatee should be bound

by all the covenants or any new covenants or statutory base so as to

bind all the existing lessees.”

In H.C. Pandey vs. G.C. Paul[9], this Court held that:

“It is now well settled that on the death of the original tenant,

subject to any provision to the contrary either negativing or limiting

the succession, the tenancy rights devolve on the heirs of the

deceased tenant. The incidence of the tenancy are the same as those

enjoyed by the original tenant.”

Furthermore in Parvinder Singh vs. Renu Gautam & Ors.[10], it has been held

by this Court that:

“Tenancy is a heritable right unless a legal bar operating against

heritability is shown to exist.”

26. The aforementioned cases indicate that in general tenancies are to be

regulated by the governing legislation, which favour that tenancy be

transferred only to family members of the deceased original tenant.

However, in light of the majority decision of the Constitution Bench in

Gian Devi vs. Jeevan Kumar (supra), the position which emerges is that

in absence of any specific provisions, general laws of succession to

apply, this position is further cemented by the decision of this Court

in State of West Bengal vs. Kailash Chandra Kapur (supra) which has

allowed the disposal of tenancy rights of Government owned land in

favour of a stranger by means of a Will in the absence of any specific

clause or provisions.

27. Presently, the tenancies are owned by BMC and allegedly by means of a

Will, were bequeathed to Daulatbai as a residuary legatee in 1946, such

transfer appears to be permissible in light of the Constitution Bench

decision. However, as the legal position regarding the permissibility of

bequeathing a tenancy by Will in 1946 was not decided, we will rely on

the admissions of the parties in regard to the same. The BMC by means of

letter dated September 19, 1961 treated all the heirs of Bomanji as

joint tenants; and the heirs of Bomanji by means of letter dated October

25, 1961 also claimed themselves to be joint tenants; Daulatbai in her

letter dated February 3, 1962 also claimed joint tenancy along with

her sons and sought transfer of the rent receipts only in the name of

her son Dinshaw. By letter dated November 11, 1962 once again all the

heirs of Bomanji’s including Daulatbai claimed themselves to be joint

tenants in the eviction suit being Suit No. 5451 of 1963. We also find

that Daulatbai regarded herself to be a joint tenant with the other

sons.

28. Furthermore, Daulatbai only bequeathed the nursery business and not the

tenancy to her son Dinshaw and appointed her daughter Ketayun as

residuary legatee by means of her Will which was not probated. As per

Section 213 of the Indian Succession Act, 1925, when a Will of a Parsi

is not probated then no legatee can claim right by means of the same and

such testator is treated to have died intestate. As per Section 52 of

the Indian Succession Act, prior to the amendment of 1991, a Parsi

female intestate’s property shall be divided equally amongst her

children and the statute does not distinguish between step-children and

children. Thus , the florist/nursery business devolved jointly on the

heirs of Daulatbai after her death in 1967. Therefore, the claim of the

appellants that the they had exclusive rights over the nursery business

does not hold good.

29. In light of the above, we find that the tenancy which was jointly held

by her and her sons as admitted by them and recognized by the Trial

Court in its judgment dated July 11, 1977, in Suit No. 5451 of 1963, is

devolved upon her sons on her death by virtue of their being joint

tenants and her heirs under the Indian Succession Act. The original

plaintiffs and defendant No.2 always treated and recognized the tenancy

as a joint tenancy and the same was also recognized by BMC to be so.

This fact attained finality when the finding of the Trial Court in Suit

No. 5451 of 1963 that it was “no longer in dispute that after the demise

of Bomanji, the Plaintiffs became the tenants in respect of the Suit

Properties”, was not challenged by any of the parties to the dispute.

Moreover, there is nothing on record to show that the other sons or the

original plaintiffs denied their stake in the same.

30. Regarding the purported “consent letter” dated October 25, 1961 and the

subsequent transfer of tenancy to Dinshaw on September 18, 1981, as

admitted by the BMC, we find the same to be illegal and lacking bona

fide. In our opinion, in 1961 when the joint tenants were served with

an eviction notice, then for the sake of convenience only the

“purported” letter of consent dated October 25, 1961 was issued. This

letter does not have any validity in law and does not amount to

surrender or relinquishment of rights of the original plaintiffs in the

suit premises. In a subsequent letter dated February 3, 1962 addressed

by Daulatbai to the BMC, Daulatbai sought the transfer of rent receipts

only, in the name of Dinshaw. The existence of the said letter is also

admitted by the appellants and in the same letter Daulatbai has stated

that the tenancy is a joint tenancy. Moreover, the “consent letter”

stands passively revoked in light of the pleadings in Suit No. 5451 of

1963 where the heirs of Bomanji including Dinshaw have claimed

themselves to be joint tenants in the suit premises and a specific

finding of the Trial Court in the said suit is not challenged by any of

the parties. We have further noted that Dinshaw with the other three

sons Ardeshir, Jehangir and Homi also made a joint representation on

August 4, 1975 before the BMC against the eviction notices on the basis

of joint tenancy devolving upon them after the death of Bomanji. In

light of the aforsesaid discussion, we are of the opinion that the

appellants cannot take a stand contrary to what has been pleaded earlier

in any legal proceedings. Furthermore, it must be noted any consent

given was expressly revoked by letter dated December 22, 1980 addressed

on behalf of the plaintiffs and admittedly received by BMC on February

2, 1981. The said letter also acted as a notice under Section 527 of the

BMC Act. Thus, the tenancy rights were never transferred exclusively in

the name of Dinshaw.

31. In the light of the above, the transfer dated September 18, 1981 by the

BMC in favour of Dinshaw Irani based on the letter dated October 25,

1961 is illegal and the reliance on the same by BMC is misplaced. We

have taken note of the documents placed on record which clearly and

undoubtedly support the above position. In a letter dated February 2,

1981, BMC has accepted the existence of letter dated December 22, 1980.

The tenancy was transferred by BMC by means of a letter dated September

18, 1981 and the same was done without inviting any objections for

considering the earlier letter of objection. Furthermore, objections

were again raised by respondent No.5 by means of letter dated October

22, 1981 and the Senior Ward Officer by means of letter dated February

2, 1982 admitted that since earlier letter of objections was not

received by the concerned officer, they wanted a copy of the same letter

of objections to decide the case on merits. This letter created a belief

that no transfer of tenancy had taken place which is further cemented by

the letter dated February 25, 1982 addressed by the Dy. Municipal

Commissioner, Shri. P.P. Kamdar, wherein he sought the letter of

objections and stated that “on account of the documentary evidence

produced by Shri Dinshaw Bomanji Irani, it is proposed to transfer the

tenancy in his favour”. In the said letter, BMC did not inform the

plaintiffs about the transfer on September 18, 1981 and instead created

an ambiguous situation. These letters brought on record clearly indicate

that no due process was followed wherein objections were sought after

the transfer and no proper transfer was made. We have noticed and found

that the High Court has correctly held as follows :

“15. 3rd question that arises is, whether giving the consent for

transferring the tenancy amounts to relinquishment of rights by all

those persons in the suit property in favour of defendant No.2. The

answer to the 2nd question is that there is no relinquishment at all

in favour of defendant No.2. The consent letter nowhere shows nor a

single document is there with the defendant No. 2 to show that the

signatory of the consent letter has relinquished, abandoned and given

up their tenancy right in the property forever and permanently in

favour of the defendant No.2. No such case is put forth by defendant

No.2 at any stage. Further there is no reasons why all other

signatories of the consent letter should shower all the benefits of

tenancy right exclusively upon the defendant No.2. Nothing is brought

on record to show that defendant No. 2 had given any privilege to the

family or made any sacrifice for the family for which all of them

decided to compensate the defendant No.2 by transferring the tenancy.

Therefore for all these reasons, it has to be held that transfer of

tenancy sought to be achieved by consent letter was only for the sake

of convenience. It was not relinquishment of right by other

signatories in the suit property. Subsequent conduct of the plaintiff

in protesting and apprehending, the delay of 20 years in effecting the

transfer are all circumstances that strongly support the case of the

plaintiffs and it also disproved the case of the defendant No.2. The

plaintiffs have alleged malafides against the BMC in this regard. It

is true that the malafides are to be specifically proved against the

specific officer but it can be said that the transfer lacks bonafides.

x x x x x x

18. The so called transfer of tenancy is dated 18th September 1981.

The defendant No.2 contended that it is legal and proper transfer. The

BMC contends that it is a bonafide transfer. But the letter dated

2.2.1982 (Exhibit 16) written by the Senior Ward Office, E-Ward to

Shri P.H.Irani is very vital and crucial document. It falsifies both

these contentions of the defendant No. 2 and the BMC. The subject of

this letter (Exhibit 16) as written in it is "Transfer of rent receipt

of C.S.No. 266/67 known as Irani Wadi". There is a reference to the

letter of P.H.Irani addressed to Shri P.P.Kamdar about the objection

for transfer of rent receipt in the name of Dhinshaw Bomanji Irani,

i.e. defendant No. 2 and, the Sr.Ward Officer, who has written this

reply, has stated that any objection does not appear to have been

received by E Ward Office and, therefore, a request was made to P.H.

Irani to send a copy of the same letter and, the purpose of asking for

the copy is "so as to enable him to decide on the objections on

merits." Then copy of this letter (Exhibit 16) was also sent to the

Law Office.

19. This letter of 1982 fully supports and fortifies the contentions

raised by the learned Counsel Mr. Naik for the plaintiffs that the

transfer of tenancy on 18th September 1981 is not bona fide because

even as on 2.2.1982, as per the Sr.Ward Officer of the BMC, there was

no transfer of tenancy and objections were to be decided on merits

thereafter. I have no hesitation in accepting this submission of

learned counsel Mr. Naik for the plaintiffs. Therefore, in this

background, it has to be held that transfer of tenancy is suspicious

and lacks bonafides.”

The High Court has correctly opined that the conduct of BMC lacked bona

fide and same has not been challenged by the BMC being respondent No.6

before us.

32. In light of the same, we find force in the arguments put forth by the

respondents in this regard. Thus, we hold that the transfer of tenancy

by BMC in the name of Dinshaw is illegal and void ab initio.

Consequently, all the events that follow, being the surrender of part of

the tenancy by Dinshaw to BMC in lieu of the new plot allotted to him,

are also rendered void ab initio.

33. Since the lease of the 1152 sq. mts executed by BMC in favour of

Dinshaw is rendered void ab initio, the construction by the appellants

on the said plot is also illegal. The position as it exists today is

that the remaining portions of Irani Wadi have been acquired by the BMC;

and on the other portion, the structure erected by Dinshaw exists and

the portion being the residential bungalow occupied by the respondents

may also be acquired by BMC in due course.

34. Considering the aforementioned changed circumstances, the High Court

taking note of the subsequent events moulded the relief in the appeal

under Section 96 of the Code of Civil Procedure and the same has been

challenged by the appellants before us. In ordinary course of

litigation, the rights of parties are crystallized on the date the suit

is instituted and only the same set of facts must be considered.

However, in the interest of justice, a court including a court of appeal

under Section 96 of the Code of Civil Procedure is not precluded from

taking note of developments subsequent to the commencement of the

litigation, when such events have a direct bearing on the relief claimed

by a party or one the entire purpose of the suit the Courts taking note

of the same should mould the relief accordingly. This rule is one of

ancient vintage adopted by the Supreme Court of America in Patterson vs.

State of Alabama[11] followed in Lachmeshwar Prasad Shukul vs Keshwar

Lal Choudhury[12]. The aforementioned cases were recognized by this

Court in Pasupuleti Venkateswarlu vs. The Motor and General Traders[13]

wherein he stated that:

“…If a fact, arising after the lis has come to court and has a

fundamental impact It is basic to our processual jurisprudence that

the right to relief must be judged to exist as on the date a suitor

institutes the legal proceeding. Equally clear is the principle that

procedure is the handmaid and not the mistress of the judicial

process. If a fact, arising after the lis has come to court and has a

fundamental impact on the right to relief or the manner of moulding

it, is brought diligently to the notice of the tribunal, it cannot

blink at it or be blind to events which stultify or render inept the

decretal remedy. Equity justifies bending the rules of procedure,

where no specific provision or fairplay is violated, with a view to

promote substantial justice — subject, of course, to the absence of