Mukhtar Begum & Ors. vs Additional District Judge Court ...
2013 Latest Caselaw 1691 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?A.F.R.
 
Court No. - 14
 

 
Case :- RENT CONTROL No. - 29 of 2012
 

 
Petitioner :- Mukhtar Begum & Ors.
 
Respondent :- Additional District Judge Court No. 7 Unnao & Anr.
 
Petitioner Counsel :- Adnan Ahmad,Manish Misra
 
Respondent Counsel :- Manish Kumar
 

 
Hon'ble Saeed-Uz-Zaman Siddiqi,J.

By means of this petition under Article 226 of the Constitution of India, the petitioners have prayed for issue a writ in the nature of certiorari quashing the impugned order dated 08.02.2012 passed by Additional District Judge (Court No.7), Unnao in Rent Appeal No. 1 of 2011.

Brief facts of the case are that the petitioners filed P.A. Case No.14 of 2007 for release of accommodation under Section 21(1)(a) of the U.P. Rent Act, 1972 which was allowed by the learned prescribed authority vide judgment and order dated 19.01.2011, against which the tenants preferred the instant appeal in which they moved an application No. 4C to the effect that the landlord has died on 14.03.2011 (during pendency of appeal). The case was instituted by him on the ground of personal need and requirement which has vanished due to death, and as such, the cause of action has perished. The petitioners filed objection 50C against this application, in which the application was opposed on the ground that subsequent to the death of landlord, his widow and two sons have become employment-less and have no source of income and, as such, cause of action has not come to an end to which the tenant filed rejoinder application alleging therein that his three sons are unemployed. It has further been alleged that since substitution has rightly been carried out in the appeal which shows that bonafide requirement of the landlord has also died.

The learned appellate court reached to the conclusion that prescribed authority has allowed the application on the basis of bonafide requirement of the deceased landlord. The landlords who are petitioners before the learned Appellate Court have moved amendment application paper No. 49A seeking addition of bonafide requirement of the sons of the deceased landlord, who are petitioners before this Court. It was sought to be amended that the two sons of the deceased landlord have learnt photography and computer along with their father and they have no other engagement and after the death of the father they have no source of income. This amendment application has been opposed by the tenant opposite party through objection paper No. 57(a). Aggrieved by rejection of application 49-A and the release petition, the landlords have preferred the instant petition.

I have heard both the parties and perused the record.

The learned appellate court has observed that under Section 21(7)13 of U.P. Rent Act, 1972, the legal representatives of landlord who died during the pendency of the application under clause 9(a) of Sub-section 1, such legal representatives shall be entitled prosecuted such application "further on the basis of their own need in substitute of the need of the deceased" But in spite of this provision of law, the learned appellate court has observed that need of the landlord has come to an end. The learned appellate court has rejected the impugned application paper no. 49(a) and set aside the judgment and order of release dated 22.01.2011 and has given a liberty to the landlord to move fresh application for release under Section 21 of U.P. Rent Act. The impugned order is, itself, violative of the express provision contained in sub-section 7 of Section 27 of U.P. Rent Act No.XIII of 1973 the intention of the legislature is that, where, during the pendency of application for release, the landlord dies, his legal representatives shall be entitled to prosecute such application further on the basis of their own need in substitute of the need of the deceased. The point sought to be urged is that, subsequent development shall have to be taken into account in eviction proceedings, particularly even eviction is sought by a landlord on the ground that the bonfide need the building for his own use or for the use of any member of family.

Hon'ble Apex Court has held in Gaya Prasad Vs. Praddep Srivastava (AIR 2001 SC 803) which is extracted below:-

"We have no doubt that the crucial date for deciding as to the bona fides of the requirement of the landlord is the date of his application for eviction. The antecedent days may perhaps have utility for him to reach the said crucial date of consideration. If every subsequent development during the post petition period is to be taken into account for judging the bona fides of the requirement pleaded by the landlord there would perhaps be no end so long as the unfortunate situation in our litigative slow process system subsists. During 23 years after the landlord moved for eviction on the ground that his son needed the building, neither the landlord nor his son is expected to remain idle without doing any work, lest, joining any new assignment or starting any new work would be at the peril of forfeiting his requirement to occupy the building. It is a stark reality that the longer is the life of the litigation the 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.

We cannot forget that while considering the bona fides of the need of the landlord the crucial date is the date of petition. In Remesh Kumar vs. Kesho Ram [1992 Suppl. (2) SCC 623] a two-Judge Bench of this Court (M.N. Venkatachalia, J., as he then was, and N.M. Kasliwal, J.) pointed out that the normal rule is that rights and obligations of the parties are to be determined as they were when the lis commenced and the only exception is that the court is not precluded from moulding the reliefs appropriately in consideration of subsequent events provided such events had an impact on those rights and obligations. What the learned Chief Justice observed therein is this:

"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."

In the case of Kamleshwar Prasad Vs. Pradumanju Agarwal reported in 1997 AIR (SC) 2399 the Hon'ble Apex Court has held as under:-

"Mr. Manoj Swarup, learned counsel appearing for the appellant in this Court urged that the person for whose bona fide requirement the order of eviction has been passed by the appellate authority having died during the pendency of the writ petition. The said bonafide requirement no longer subsists and consequently the High Court should have taken that fact into consideration and should have interfered with the order passed by the appellate authority for the eviction of the tenant.

That apart, the fact that the landlord needed the premises is question for starting a bushiness which fact has been found by the appellate authority. In eye of law, it must be that on the day of application for eviction which is the crucial date, the tenant incurred the liability of being evicted from the premises. Even if the landlord died during the pendency of the Writ petition in the High Court the bona fide need cannot be said to have lapsed as the business in question can be carried on by his widow or any elder son. In this view to the matter, we find no force in the contention of Mr, Manoj Swarup, learned counsel appearing for the appellant and we do not find any error in the impugned judgment of the High Court under Article 136 of the Constitution. The appeal, accordingly, fails and is dismissed but in the circumstances without any order as to costs."

The learned counsel for the opposite party relied upon the judgment laid down in R.S.Gahlaut Vs. VIIth Additional District Judge, Meerut and another 2008 (3) ARC 198; but this is not applicable to this case at all.

The impugned order passed by the learned appellate court is in contravention of violation of settled rules of justice and contravene the basic principles of natural justice and rules of procedure. It deserve to be quashed.

A larger Bench of Hon'ble Apex Court in Sayed Dastagir Vs. T.R. Gopalakrishna Setty reported in AIR 1999 Supreme Court 3029 has held that:

"In construing a plea in any pleading, Courts must keep in mind that a plea is not an expression of art and science but an expression through words to place fact and law of ones case for a relief. Such an expression may be pointed, precise, some times vague but still could be gathered what he wants to convey through only by reading the whole pleading, depends on the person drafting a plea. In India most of the pleas are drafted by counsels hence aforesaid difference of pleas which inevitably differ from one to other. Thus, to gather true spirit behind a plea it should be read as a whole. This does not distract one from performing his obligations as required under a statute. But to test, whether he has performed his obligations one has to see the pith and substance of a plea. Where a statute requires any fact to be pleaded then that has to be pleaded may be in any form. Same plea may be stated by different persons through different words then how could it be constricted to be only in any particular nomenclature or word. Unless statute specifically require for a plea to be in any particular form, it can be in any form."

It has been further been held in the case is that:-

"Courts cannot draw any inference in abstract or to give such hyper technical interpretation to defeat a claim of specific performance which defeats the very objective for which the said Act was enacted."

I am afraid the learned Appellate Court has discussed the correct perspective of law in para 10 of its judgment but thereafter it has derailed its finding and rejected the amendment application and dismissed the case itself in a hitlarian way unknown to the judicial system of this country without assigning any cogent reasons. The judgment of the learned Appellate Court shows that it has analyze the law in a perverse manner and has in reaching to unjust conclusions. It has misread the law and dismissed the amendment as well as entire case on conjectures and surmises. By the impugned order the learned Appellate Court has summarily thrown out the landlord in a surreptitious manner by applying its own whims. It is well known that Judges must administer law according to the provisions of law. It is the bounden duty of Judges to discern legislative intention in the process of adjudication. Justice administered according to individual's whim, desire, inclination and notion of justice would lead to confusion, disorder and chaos. Since such tendency is in its primary stage it is giving rise to indiscriminate and frequent petitions before this Court and is leading this Court to colossal delay in administration of justice, in civil cases, in out country. I am bound to mention that the misinterpretation of law by the learned Appellate Court is gross of inexcusable error.

In either case the impugned order passed by the learned appellate court is capricious and unreasonable by which he has turned hostile from law or true law as laid down by the legislature and incorporated by various court and the Hon'ble Apex Court.

Original application for release was filed in the year 2007 which deserves to be decided within two months as prescribed under rule 15(3) of the Rules framed under U.P. Rent Act No. XIII of 1972 but for the last 6 years it could not be decided and at this stage the delay has been caused due to the miss-application of law and wrong judgment by the learned appellate court. The impugned application of the petitioners should be allowed and is accordingly allowed. The learned appellate court shall decide the appeal within two months from the date of production of certified copy of this order on merits by applying its judicial mind.

In result, the writ petition succeeds and the impugned order dated 08.02.2012, passed by opposite party no.1 is hereby quashed.

Let the copy of this order be sent to the learned District Judge, Unnao who may, in turn recall the appeal to its own diary, if not possible then transfer it to some other competent court, without delay.

Order Date :- 6.5.2013

Ram/Ajay.