Law Web: Whether decree granted in favour of landlord should be set aside on ground of subsequent event?

The courts below have appreciated the evidence and

concluded on facts that the owners have an expanded family, and their

needs are genuine. It is impermissible for this Court to disturb those

findings of facts in its revisional jurisdiction. The owners, besides

denying these allegations, have contended that all these developments

were said to have taken place when the appeal was pending. But the

tenants did not bring them to that court’s notice. The issue of the

locked rooms had been concurrently rejected by the courts below.

According to them, these pleas are part of the tenants’ delaying

techniques.

62. The alleged later developments, I must note, have not been,

first, properly brought on record—at an appropriate time. Second, at

this stage they cannot be considered; third, there is no clinching

evidence to establish these allegations.

(f) Two of the Owners’ Family Getting Employment:

63. Indeed, the tenants have made heavy weather of this issue.

Indeed, two of the many children in the owners’ family secured

employment. They are many other children, either unemployed or

doing petty businesses. Let us not forget the owners initiated the

eviction proceedings in 1986—over thirty years ago. In this period

someone may be born, brought, and employed. And the one who was

getting educated then, may get employed, and retired. And the one

who was employed then may retire and die away, too.

64. In Dickensian diction, innumerable children may have been

born into the cause; innumerable young people may have married into

it; innumerable old people may have died out of it. The little of the

plaintiffs may have been promised a new toy cycle when the case is

settled, but may have grown up pending the case, possessed a real cycle,

ridden it through his life, and ridden away into the other world. A case

can be perennial but not the life, nor its needs. As it were, courts have

time machines, for cases remain constant decades on end. But not the

clients or causes.

65. True, two of the many children have secured employment.

But that is hardly surprising in three decades and three years. That has

not taken away the owners’ need completely. That development has not

eclipsed their need, so to say.

Suppression of Facts:

66. The tenants have contended that two of the owners’ children

got employment, perhaps, pending the appeal. It was not brought to

the Appellate Court’s notice. It is suppression. At least, the tenants

assert so.

67. S. P. Chengalraya Naidu is the oft-quoted judgment on fraud

and its ramification in the judicial arena. It invokes Chief Justice

Edward Coke’s aphoristic assertion that “Fraud avoids all judicial acts,

ecclesiastical or temporal”. It reiterates that a judgment or decree

obtained by playing fraud on the court is a nullity and non est in the

eyes of the law.

68. As a general rule, suppression of a material fact by a litigant,

according to the Supreme Court[15], disqualifies such litigant from

obtaining any relief. This rule has been evolved out of the need of the

Courts to deter a litigant from abusing the process of Court by

deceiving it. But the suppressed fact must be a material one in the sense

that had it not been suppressed it would have affected the merits of the

case. It must be a matter material for the consideration of the Court,

whatever view the Court may have taken.

69. The owners have a counter allegation: the tenants have

business at another place, too. But they suppressed that fact.

70. At any rate, I see no plea taken in the CA about the

suppression of a material fact: two of the children getting employment.

But it was argued. I reckon among the many children of the owners,

two getting employment in thirty years hardly affects their case

prospects. Nor does it amount to a material suppression.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

CIVIL REVISION APPLICATION NO.497 OF 2016

Smt. Rukminibai Motiram Kshirsagar v/s. Smt. Manoramabai Mallikarjun Bagale

CORAM : DAMA SESHADRI NAIDU, J.

PRONOUNCED ON: 6th September 2019

Introduction:

In a suit for eviction, the owners have concurrently succeeded.

Both the trial Court and the Appellate Court have accepted that the

owners need the property for their use. Aggrieved, the tenants filed this

Civil Revision Application (CRA) before this Court, under Section 115

of the Code of Civil Procedure. The tenants have pleaded three things:

(a) Change of circumstances or subsequent developments; (b) Owners’

suppressing facts; and (c) the suit proceedings getting abated. We will

examine.

Facts:

2. Generations ago, one landlord let a piece of property—two

shops—to one tenant. The tenancy continued. Both the original

landlord and the original tenant passed away. Later, their legal heirs

succeeded on either side. Eventually, in 1986 the wife and seven

children of the immediate predecessor-landlord filed Suit No.585/1986

to evict the tenants, on the grounds of bona fide requirement and

arrears of rent. During the trial, it seems, the owners gave up their

claim on the arrears of rent, but they persisted with the bona fide

requirement under Section 13(1)(g) of the Bombay Rent Control Act.

Eventually, in 2001, the trial Court decreed the suit.

3. Aggrieved, the tenants filed Civil Appeal No.343 of 2001.

That appeal too was dismissed. Thus, the tenants suffered concurrent

findings. As a matter of collateral development, three defendants, that

is the defendants 3, 5 and 7, died pending the suit. The owners did

bring on record the legal representatives (LRs) of the 5th and the 7th

respondents. But could not bring on record the LRs of the 3rd

defendant. Eventually, the Appellate Bench of the Small Cause Court

dismissed the Appeal.

4. Assailing the judgment in appeal, the tenants filed Civil

Revision Application No. 497 of 2016. Six months later, the tenants

also filed Civil Application No.62 of 2017 with a few documents to

bring on record what the tenants called the later developments not in

their knowledge till then.

Submissions:

Petitioners-Tenants:

5. In the above factual background, Shri Rajesh Patil, instructed

by Shri Rahul Matkari for the applicant, has submitted that pending

the appeal in October 2015, the owners inducted a new tenant into the

adjacent shop. Had there been any bona fide requirement, they would

have used that property, too, for themselves, instead of letting it out to

a 3rd party. In that context, Shri Patil asserts that the plea of bona fide

requirement is false.

6. Then, Shri Patil has drawn my attention to a few photographs

to assert that a lady by name Neeta Ranpise is the new tenant and that

she has been carrying on the business in the adjacent property. Shri

Patil has laid frontal emphasis on what he calls suppression of facts by

the owners. According to him, two of the plaintiffs secured government

employment pending the suit. They never brought it to the notice of

the courts below. Had they brought this vital piece of information to

the Appellate Bench’s notice, the outcome could have been different.

On this count, Shri Patil stresses that once a suiter's conduct is not

bona fide, he deserves no indulgence from the court and, on the same

reckoning, even a meritorious case can be thrown out.

7. Shri Patil has also submitted that for many years, the landlords

have kept two rooms near the leased property locked. This again

exposes the owners’ claim there was any bona fide requirement to

accommodate themselves and carry on business in the leased property.

To elaborate, Shri Patil has shown me a rough sketch filed along with

the civil application, to hammer home his contention that there exists a

clear open space, where the landlords could have constructed as per

their convenience. Thus, the owners could have had a more

commodious building, accommodating the alleged growing needs of

the family.

8. One of the owners living in the vicinity, Shri Patil contends,

has constructed a new structure for the residential as well as commercial

purpose. Then, similarly, the other owners too could have done the

same thing in the vacant space available for them. Besides, the tenant

Shri Patil referred to already, he submits that the owners have inducted

another tenant in another part of the property, that is a shop. Shri Patil

has also stressed that the proceedings the owners initiated stood abated

because they could not bring all the LRs of the deceased tenants.

9. In the context of all these later developments, Shri Patil has

submitted that the lis does not become final until the fruits of the

decree are released. For that, the litigation must run its full course,

including the appeal and the revision. In the meanwhile, any

developments take place, they must be judicially noted and the relief

moulded accordingly.

10. To support his contentions, Shri Patil has relied on Dr.

Vinayak Trimbak Wale v. Tarachand Hiralal Shet Marwadi[1], Mohd.

Ismail v. Dinkar Vinaykrao Dorllikar[2], P. V. Papanna v. K.

Padmanbhaiah[3], S.P. Chengalvaraya Naidu v. Jagannath[4], Parvez

Rustom Nekoo v. Rustom Ardeshir Nekoo[5], and Tarachand

Hassaram Shamdasani v. Durgashankar G. Shroff[6] .

Respondents-Owners:

11. Shri Vikram Sathe, the learned counsel for the respondentsowners,

has submitted that the owners created no new tenancy. And

the photographs the tenants filed do not reveal the true picture.

According to him, what was shown in the photograph is the ‘Veranda’

that provides access to the rest of the property. Without the landlord’s

leave, at some point in time, if some street vendor stood there and

conducted business, that should not be termed a tenancy the owners

have created. In this context, Shri Sathe has submitted that the creation

of tenancy is a legal formality—not a fortuitous event.

12. About the two of the owners securing jobs, Shri Sathe stresses

that it never amounted to suppression of any material facts. It is a lis

1 [] (1960) 62 BLR 785

2 [] (2009) 10 SCC 193.

3 [] 1994 (2) SCC 316

4 [] 1993 DGLS (SC) 918

5 [] 2003(3) Bom.C.R.86

6 [] 2004 (Supp.)Bom. C.R. 333

pendence development not affecting the suit proceedings. According

to him of the eight co-owners, if two have secured an alternative source

of living, it has not rendered the cause of action infructuous. He has

also submitted that it has been a well-established principle of law that

once the cause of action has arisen and proceedings are taken, the later

developments do not denude the cause.

13. About the open area said to have been available, Shri Sathe

submits that it is again a question of an established legal principle that

it is not for the tenants to dictate in what manner the owner should use

his property. To elaborate, he has submitted that constructing

something new entails various factors, such as finance. If a piece of

property is readily available, the landlord cannot be compelled to

abandon his right and be compelled to develop some other property in

a manner which may not be beneficial for him.

14. Touching on the question of abatement, Shri Sathe has

submitted that the tenants have been living for generations and

carrying on the business. As is the case with the owners, people have

been born into both the families, people have moved away from those

families, and some have, inevitably, died away, too. According to him,

the landlords’ have diligently brought on record the LRs of the

deceased defendants and have tried to serve notices on them. Those

LRs were sought to be served on the addresses shown in the

proceedings for respondents. Some have received the notices and

defended themselves, but some have avoided. Even otherwise,

according to him, once it is a joint tenancy it suffers no partial

abatement.

15. Shri Sathe has also submitted that every time, at the eleventh

hour, the tenants have tried to introduce something new. To illustrate,

he has submitted that before the Appellate Bench, for the first time

after many years, the tenants pleaded that they would hand over half

the leased property. Thus they wanted the Appellate Bench to remand

the matter to the trial Court. It was again for deciding whether the

bona fide requirement still subsisted. In this context, Shri Sathe has also

submitted that now in the Revision Application, the tenants raise the

bogey of subsequent developments. According to him all the issues

now the tenants raised had been available to them all along. To

support his contention, he has relied on Gaya Prasad v. Pradeep

Shrivastava[7], Smt. Ramkubai v. Hajarimal D. Chandak[8], and Sait

Nagjee Purushotham & co. Ltd. v. Vimalabai Prabhulal[9].

Reply:

16. In reply, Shri Patil has submitted that the plaintiffs have only

pleaded that the need still subsists; in their reply to the Civil

Application, they have pleaded nothing beyond.

Discussion:

7 [] AIR 2001 SC 803

8 [] AIR 1999 SC 3089

9 [] (2005) 8 SCC 252

17. As I have noted, generations ago the original landlord let a

piece of property—two shops—to the original tenant. The original

landlord and the tenant died. The LRs succeeded on both sides. In

1986, the wife and the seven children of the immediate predecessorlandlord

sued for eviction. It was for their bona fide requirement. In

2001, the trial Court decreed the suit. The tenants Civil Appeal too was

dismissed. So this Civil Revision Application under Section 115 of

CPC.

Later Developments:

18. In this CRA, the tenants have filed an additional affidavit

along with documents. They wanted the Court to consider what they

call the subsequent developments. How does the Court take judicial

cognizance of the subsequent developments?

(a) How Should the Later Developments be Brought on Record?

19. Usually, this Court exercises its revisional jurisdiction under

Section 115 of CPC. That exercise of power concerns the jurisdictional

errors. The challenge per se to the findings of fact ends with the appeal.

And the Bombay Rent Control Act has not provided for the second

appeal. So, in the revision under Section 115 of CPC, the suit survives,

if at all, in an attenuated form, as the challenge is more technical than

substantial.

20. That said, even the revision under Section 115 of CPC is a

continuation of the original suit proceedings. The Code provides for

procedural steps to be taken—for example, placing evidence on record

—both at the trial stage and at the appellate stage, but hardly any

specific provision, again for placing evidence, at the revisional stage.

Even Order 41, Rule 27 permits additional evidence at the appellate

stage, not at the revisional stage.

21. But amending the pleadings is permitted at all stages. Order

6, Rule 17 enables the parties to amend the pleadings. It reads:

“Amendment of pleadings – The Court may at any stage of the

proceedings allow either party to alter or amend his pleadings in

such manner and on such terms as may be just, and all such

amendments shall be made as may be necessary for the purpose

of determining the real questions in controversy between the

parties. Provided that no application for amendment shall be

allowed after the trial has commenced, unless the court comes to

the conclusion that in spite of due diligence, the party could not

have raised the matter before the commencement of trial.”

22. Indeed, the court can allow the parties to amend the

pleadings at any stage of the proceedings. Those amendments must be

necessary for the court to determine the questions in controversy

between the parties. This liberal provision underwent an amendment

in 2002. So the earlier Maharashtra-specific State Amendment of 1983,

I reckon, now may not stand in the way. Then, with the Central

Amendment, the limitation on amending the pleadings is this: there

should be no amendment once the trial has commenced. But there is

an exception: if the court concludes that despite due diligence, the

party could not have raised the matter before the commencement of

trial. And that includes the subsequent developments.

23. For the court to appreciate the later developments, they

should be brought on record through amendment. Once the pleadings

are amended, the later developments become part of the record. Then,

based on the gravity, the appellate court or even the revisional court

may remand the matter.

24. The tenants seem to have filed two applications before the

District Court: Ext.82, for “permitting them to produce documents;”

and Ext.85, “to frame additional issue and remand the matter for

additional evidence on the issue.” Both were dismissed “at the time of

final hearing along with the main Civil Appeal.” But there seems to be

no application for amendment of pleadings per se.

25. Now, in this CRA, the tenants have filed a Civil Application.

They have narrated what they call subsequent developments; besides

they also filed certain documents and photos, for the first time.

Through that CA, the reliefs they sought are these: “b) In view of the

events which are now brought on record, the matter be remanded back

and the Applicants be allowed to amend the written statement and lead

evidence to that effect; c) The subsequent events which have taken

place after the impugned judgments and orders and during the

pendency of the above Civil Revision Application be taken on record

and same may be considered at the time of hearing.”

(b) What Should Amount to the Subsequent Developments?

26. The principal point of discord is the bona fide requirement.

The question is, have the subsequent developments eclipsed this need?

27. In Dr. Vinayak Trimbak Wale, a learned Single Judge of this

Court has held that under Section 13(f)(g) of the Bombay Rent Act, a

landlord could recover possession of any premises if he reasonably and

bona fide required the property for his own occupation. The burden

would, therefore, lie on the landlord to prove his requirement. Then,

the Court has observed that to satisfy the requirements of Section 13(1)

(g) of the Bombay Rent Act, the landlord must establish to the Court’s

satisfaction that “his requirement of the suit premises for occupation by

himself continued even during the pendency of the suit.”

28. In Mohd. Ismail, the appellant was a tenant. The landlord

applied for his eviction. He pleaded that he was jobless and wanted to

start a “kirana business” in the leased property to sustain his family.

According to him, he and his three sons required two shops for their

bona fide need. The appellant was directed to vacate the leased shop.

The Rent Controller and the Appellate Authority concurrently ordered

eviction. The High Court remanded the matter. The appellate

authority returned the same findings.

29. Again, the appellant filed a writ petition. He pleaded in that

writ petition that the landlord filed a similar eviction petition against

another tenant and secured possession. In that property, he had started

a business. The High Court again remitted the matter back to the

Appellate Authority for fresh consideration. Yet again, the same order

of eviction was returned. So the appellant filed a writ petition for the

third time.

30. Again, the High Court partially allowed the writ petition and

directed the Appellate Authority to hear and decide the appeal afresh.

But this time, too, the outcome was no different. So the matter reached

the High Court for the fourth time. This time, the High Court

dismissed the Writ Petition. It concurred with the concurrent finding

that the respondent proved his bona fide requirement. Then, the

appellate approached the Supreme Court.

31. Before the Supreme Court, the appellant’s counsel absented

himself. The Court heard the respondent’s counsel alone. The Supreme

Court remanded the case back to the High Court, “who in turn, would

frame issues to the extent whether in view of the subsequent events, as

stated herein earlier, the bona fide requirement of the respondent

landlord has already been satisfied or not.” This case is an outlier; but,

to my mind, it has no precedential proposition.

32. In another case, the landlord sought his tenant’s eviction, on

various grounds. The trial Court allowed that on the grounds of bona

fide requirement. The trial court granted two years' time to the tenant.

On appeal, the High Court of Karnataka dismissed the tenant’s plea.

But it granted four years' time to the tenant to vacate. Special Leave

Petition filed, that too was dismissed. Before the period of four years

the High Court granted to the tenant could expire, the landlord died.

He bequeathed the property to his brother, his wife, and their son.

Despite the decree holder’s death, the Executing Court ordered

eviction.

33. The tenant reached the High Court, which allowed his

petition. It has held that the landlord’s original cause of action did not

survive on his death. The legatees went to the Supreme Court. In P. V.

Pappanna, the Supreme Court has held that when eviction of a tenant

is sought on the ground of personal need of the landlord, such need

must not only exist on the date of the suit but must also exist when

higher courts deal with the order of eviction in appeal or in revision.

34. P. V. Papanna has finally held that events which take place

after an eviction petition under any Rent Act was filed can be

considered until a decree becomes final. But any event that takes place

after the decree becomes final cannot be made a ground for reopening

the decree. The finality to the dispute culminating in the decree cannot

be reopened by the executing court for adjudication on the ground that

some event or the other has altered the situation. In other words, once

the decree becomes final, “it [becomes] a part of the estate of the

landlord.”

35. In Tarachand Hassaram Shamdasani, the respondentlandlord

pleaded he required the leased property for his business. The

background of that requirement was that he was his partner and they

were carrying on the business on his premises. Then, that nephew

wanted him to go out. The petitioner-tenant in the written statement

denied the respondent’s plea. He asserted that the respondent owned

three other properties. Later, the respondent swiftly changed his stand

about his requirement. Despite the petitioner’s serious objections, this

Court observed, the respondent did not disclose the material facts

necessary to decide the bona fide and reasonable requirement.

36. In the above context, Tarachand Hassaram Shamdasani has

observed that it is obligatory for the landlord to disclose in the

pleadings and in his evidence the fact that he owns other premises

capable of being utilized for the requirement pressed into service in the

suit filed against the tenant and to further disclose and explain that

despite those acquisitions and ownership of other premises, the

requirement still survives.

37. Gaya Prasad begins with an exhortation: “This case presents a

sample scenario of the tormenting plight of an average litigant who

approaches the court with all expectations of getting relief for his

urgent need. But the snail-paced litigation creeping through all the tiers

of the hierarchical judicial forums would have frustrated all his

expectations, though others could admire the tenacity with which he

persisted with the cause.”

38. Then, Gaya Prasad traces the origin of the case: twenty-three

years ago, the landlord wanted accommodation for his son, who then

became a medical graduate. It was for his son’s starting a clinic.

Although he won the battle at all tiers the urgently needed eviction still

eluded him like a mirage. The appellant-tenant lost in the trial court,

filed an appeal, and there too he failed. The appeal took three years.

But the tenant had the longest leap, as Gaya Prasad puts it, in the High

Court. He secured a stay and that lasted for 15 years. The High Court

eventually found the tenant’s objection meritless. It nevertheless

granted him six months' time to vacate.

39. The appellant lately discovered that the respondent’s son, for

whom the eviction was sought, joined the Government Service. It was

12 years after the suit was filed. On that premise, the appellant wanted

the High Court to review its order. The High Court, however, refused.

Then, the appellant went to the Supreme Court.

40. In the above factual backdrop, Gaya Prasad has held that “the

crucial date for deciding as to the bona fides of the requirement of the

landlord is the date of his application for eviction.” Then it has

observed:

If every subsequent development during the post-petition period

is to be taken into account for judging the bona fides of the

requirement pleaded by the landlord, there would perhaps be no

end so long as the unfortunate situation in our litigative slow

process system subsists. During 23 years after the landlord moved

for eviction on the ground that his son needed the building,

neither the landlord nor his son is expected to remain idle

without doing any work, lest, joining any new assignment or

starting any new work would be at the peril of forfeiting his

requirement to occupy the building. It is a stark reality that the

longer is the life of the litigation the more would be the number

of developments sprouting up during the long interregnum. If a

young entrepreneur decides to launch a new enterprise and on

that ground he or his father seeks eviction of a tenant from the

building, the proposed enterprise would not get faded out by

subsequent developments during the traditional lengthy

longevity of the litigation. His need may get dusted, patina might

stick on its surface, nonetheless the need would remain intact. All

that is needed is to erase the patina and see the gloss. It is

pernicious, and we may say, unjust to shut the door before an

applicant just on the eve of his reaching the finale, after passing

through all the previous levels of the litigation, merely on the

ground that certain developments occurred pendente lite,

because the opposite party succeeded in prolonging the matter

for such unduly long period.

(italics supplied)

41. Gaya Prasad has held that, to overshadow the genuineness of

the need, the subsequent events must be of such nature and of such a

dimension that the petitioning party’s need should have been

completely eclipsed by such subsequent events. It has eventually held

that

“[T]he judicial tardiness, for which unfortunately our system has

acquired notoriety, causes the lis to creep through the line for

long, long years from the start to the ultimate termini, is a malady

afflicting the system. During this long interval many, many

events are bound to take place which might happen in relation to

the parties as well as the subject matter of the lis. If the cause of

action is to be submerged in such subsequent events on account

of the malady of the system it shatters the confidence of the

litigant, despite the impairment already caused.”

42. In Ramkubai, the landlady filed a civil suit against

respondent-tenant. When the original respondent died, his LRs were

brought on record. The eviction was, among other grounds, bona fide

requirement. The trial Court granted a decree. But the Appellate Court

and the High Court have found that the landlady could not prove the

bona fide requirement. One of the reasons that weighed with the

Appellate Court and the High Court is that when the appellant sued,

her son was unemployed; but later he started working as a contractor in

the construction field. So his need to run kirana shop no longer

subsisted.

43. In the above context, Ramkubai has observed that the

appellant’s son could not be expected to idle away the time by

remaining unemployed untill the case is finally decided. It has already

taken about 25 years. So, it has held that the appellant’s son taking up

the contract work, in the meanwhile, does not militate against his

carrying on the business of kirana, which is his family business.

44. In Sait Nagjee Purushotham, the Supreme Court has noticed

that the landlords have their business spread over Chennai and

Hyderabad. Yet it has observed that it “is always the prerogative of the

landlord that if he requires the premises in question for his bona fide

use for expansion of business this is no ground to say that the landlords

are already having their business at Chennai and Hyderabad therefore,

45. Sait Nagjee Purushotham has emphasised that “it is not the

tenant who can dictate the terms to the landlord and advise him what

he should do and what he should not. It is always the privilege of the

landlord to choose the nature of the business and the place of business.”

But on fact, the Court has refused to interfere with the High Court’s

findings.

46. Finally, I may refer to another important decision from the

Supreme Court. In that case, it has reversed the findings of fact

accepted at the earlier three stages. The judicial overstretch of the

statutory provisions and the improbability of legal interpretation have

compelled the Apex Court to do so.

47. The original landlord filed a suit for eviction on the grounds

of bona fide and reasonable requirement. The respondent-tenant

resisted it. Pending the suit, the original plaintiff died; his heirs were

brought on record. They amended the pleadings. The third legal

representative pleaded that he wanted the leased property for his

starting a grocery business. In that context, he stated that he was

working in Metal box. Co., that there was a lock-out in that company,

that he was finding it difficult to maintain the family, and that he

wanted to improve his livelihood by starting grocery business.

48. The trial Court held that on the original landlord’s death, the

suit abated. On merits, the trial Court held that there was no proof of

lock-out, no proof of capital available for investment, no proof of

preparations for business, and no proof of the third appellant’s having

experience in grocery business. It further held that the lockout did not

put the appellant out of his job permanently; the appellant had not

resigned his job. therefore, the requirement was not bona fide. The

lower appellate Court confirmed the finding on the question of bona

fide requirement but reversed the finding as to abatement. The

appellate Court gave a finding that the tenant had got three other

shops. The appeal was dismissed. The High Court, too, seems to have

accepted the verdict of the courts below. The landlords came up in

appeal to the Supreme Court.

49. In Raghunath G. Panhale v. Chaganlal Sundarji and Co.[10] ,

the Supreme Court has held that the word 'reasonable' connotes that

the requirement or need is not fanciful or unreasonable. It cannot be a

mere desire. The word 'requirement' coupled with the word

‘reasonable’ means that it must be something more than a mere desire

but need not certainly be a compelling or absolute or dire necessity.

The language of the provision, it is held, cannot be unduly stretched or

strained as to make it impossible or extremely difficult for the landlord

to get possession. Raghunath G. Panhale warns that if more limitations

are imposed upon the landlord holding property, it would expose itself

to the vice of unconstitutionality.

10 [] (1999) 8 SCC 1

50. In Rena Drego (Mrs.) v. Lalchand Soni[11], as quoted by

Raghunath G. Panhale, it was observed that in the light of the factual

position in that case, "where the (landlady) says that she needs more

accommodation for her family, there is no scope for doubting the

reasonableness of the requirement." It was held that the circumstances

of the case raised a presumption that the requirement was bona fide

and that "tenant has failed to show that the demand for eviction was

made within any oblique motive". It was held that in the absence of

such evidence by the tenant, the presumption of the bona fide need

stood unrebutted.

51. In the end, Raghunath G. Panhale has observed that

“unfortunately the High Court simply dismissed the writ petition filed

under Article 227 stating that the findings were one of fact. That is

why we think that this is an exceptional case calling for interference

under Article 136 of the Constitution of India.”

52. Events which take place after an eviction petition under any

Rent Act was filed can be considered until a decree becomes final. To

overshadow the genuineness of the need, the subsequent events must

be of such nature and of such a dimension that the petitioning party’s

need should have been completely eclipsed by such subsequent events.

A person could not be expected to idle away the time by remaining

11 [] [1998] 2 SCR 197

unemployed untill the case is finally decided.

(d) Is an Alternative View Possible?

Courts and Delays:

53. Courts and delays are correlatives; they go together. The

reasons are a legion. They range from infrastructural inadequacies to

insufficient adjudicators to protracted procedures to plain misplaced

priorities. The rule established by the general concurrence of the

Common Law Courts, holds the American Supreme Court in Mitchell

v. Overman[12] , is that where the delay in rendering a judgment or a

decree arises from the act of the court-that is, where the delay has been

caused either for its convenience or by the multiplicity or press of

business, either the intricacy of the questions involved, or of any other

cause not attributable to the laches of the parties-the judgment or the

decree may be entered retrospectively, as of a time when it should or

might have been entered up. Mitchell relies on the maxim actus curiae

neminem gravabit (an act of the court shall prejudice no one), which

has been well said to be founded in right and good sense and to afford a

safe and certain guide for the administration of justice. It holds that the

duty of the court is to see that the parties shall not suffer by the delay. A

nunc pro tunc (Now for then) order should be granted or refused as

justice may require because of the circumstances.

54. In Becker v. King[13] , the District Court of Appeal of Florida

12 [] (103 US 62 (1881)

13 [] 307 So. 2d. 855 (Fla. Dist. Ct. App. 1975) as quoted in

has observed that courts from very ancient times have exercised the

inherent power of entering judgments nunc pro tunc so the rights of a

litigant, who is himself not at fault should not be impaired or lost. The

Black's Law Dictionary quotes the American Federal Civil Procedure to

explain this Latin expression: When an order is signed nunc pro tunc as

of a specified date, it means that a thing is now done which should have

been done on the specified date.

55. Given the enormous and inevitable delays in judicial

adjudication, most of the times, the winner turns out to be the actual

loser. The victory remains hollow: a pyrrhic victory (a victory that is

not worth winning because the winner has lost so much in winning it.

Interim order or no interim order, procedural delays or other reasons,

unless the blame rests on the petitioner, the delay in the court's

disposing the matter should not hurt him. If mere delay with nothing

more were to defeat a person's right, it would only put a premium on

those who take delight in delaying and dragging the proceedings. The

is what Kerala High Court, per me, bemoaned in Sunil Mathew v.

Union of India[14] . It is only an alternative thought, but the

precedential weight pulls me back to the path of judicial propriety.

(d) Has the Landlords’ Need been Totally Eclipsed?

56. The first allegation is that pending the eviction proceedings,

the owners got another tenant evicted, secured possession, and then let

http://www.duhaime.org

14 [] 2017 (4) KLT 597

out that portion to another lessee. The tenants have also contended

that the portion adjacent to theirs was given to one Imran Shaikh. A

photograph is filed. The owners deny this, too. They say the

photograph reveals nothing; it only shows a casual vegetable vendor

squatting over verandah with her wares, though the verandah itself is a

passage. And the third contention is that the owners have open space

still left; they could construct there. Indeed, it is not for the tenants to

say what the owners should do with their vacant land.

57. The tenants assert the owners have kept two rooms adjoining

the tenanted property locked for fifteen years. Had it been so, it would

have been the subject during the trial. That alleged factual aspect

cannot be brought to light at the revisional stage.

58. All these aspects, the owners assert, were known or happened

during the trial or appeal. But they were not pleaded in the manner

permissible. No amendment application was filed before the District

Court. The tenants only filed a document petition and a petition for

additional issues. Nothing more.

59. As the owners’ counsel has submitted, the tenants during the

appeal would surrender one of the two rooms—a half portion of the

tenanted property. So the District Court did frame an issue on that.

Besides it has also framed another issue: Is it necessary to frame the

additional issue and remand the suit to the trial Court?

(e) The Owners’ Position:

60. before the trial court, the fifth plaintiff deposed that they

were four brothers. Two were dead, and two were retired. These four

brothers have many children. One of these children was selling tea and

snacks on the road (in a cart); he has been facing problems because of

traffic regulations and Municipal laws. Another son is running a pan

stall on the road; another a tailoring shop in the house itself; another an

advocate; and many other children are unemployed.

61. The courts below have appreciated the evidence and