Mahipal Singh & Others vs Yameen & Otheres
2015 Latest Caselaw 1502 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
RESERVED
 

 
Case :- WRIT - A No. - 27801 of 2009
 

 
Petitioner :- Mahipal Singh & Others
 
Respondent :- Yameen & Otheres
 
Counsel for Petitioner :- Harish Kumar Yadav,K.R.Sirohi
 
Counsel for Respondent :- Rizwan Ahmad Qureshi,Iqbal Ahmad,Rajiv Joshi
 

 
Hon'ble Suneet Kumar,J.

Present writ petition has been filed by the landlord/petitioners against the order dated 23 April 2009 passed by Appellate Authority under Act No.XIII of 1972 whereby the appeal filed by the petitioners was dismissed, the order dated 23 January 2007 passed by Prescribed Authority/Civil Judge (Senior Division), J.P. Nagar rejecting the release application of the landlord was affirmed.

The landlord/petitioners filed release application under Section 21(1)(a) of Act No.XIII of 1972 with regard to two shops in separate tenement situate at Mohalla Bishanpur (Main Bazar), Kanth, Amroha (J.P. Nagar). The release was sought setting up the need of the second and third petitioners, Mukut Lal and Prem Prakash respectively. It was stated that the first petitioner is already running a shoe shop. The release application was contested by the respondent/tenant by filing objection/written statement. The release application was rejected by the Prescribed Authority returning a finding that the need of the landlord/petitioners was found neither bonafide nor genuine as admittedly all the petitioners were in Government Service. The first petitioner is working in the Post Office, the second petitioner is a constable in I.T.B.P. while the third petitioner is employed as an Assistant Teacher in a school run by the Basic Shiksha Parishad. Aggrieved, the petitioners preferred an appeal, during pendency of the appeal, an application was moved seeking amendment of the release application setting up the need of the two sons of the first petitioner, namely, Rahul Dev and Lokendra Kumar being unemployed and for the wife of third petitioner who desired to engage herself in some business, therefore, the need of the petitioners were dropped. The Appellate Authority was of the view that by the amendment application, the need that was sought to be set up were totally new, which therefore, would require consideration upon fresh evidence, the petitioners would, therefore, have to file a fresh release application setting up the need of the sons of first petitioner and wife of third petitioner, consequently, the appeal was dismissed, the order of the Prescribed Authority was affirmed.

Submission of learned counsel for the petitioners is that the courts below have committed an error in rejecting the need set up for the sons and wife of first and third petitioners respectively as that would come within the ambit and scope of subsequent events occurring during the pendency of the case.

In rebuttal, it has been submitted that the landlord/petitioners set up an entirely new case at the appellate stage based upon the need of some other persons which cannot be construed being subsequent development during pendency of the proceedings. The petitioners do not dispute that they are in Government Service, therefore, need of the shops in dispute set up by them stood extinguished, subsequently, setting up the need for their two unemployed sons and wife at the appellate stage cannot be said to be subsequent events occurring during pendency of the case. The need set by way of amendment application was a fresh cause of action which required fresh evidence. Rule 18(2) of the Rules framed under the Act provides that no fresh application for the relief can be filed on the same need within a period of one year from the date of decision of the Prescribed Authority are binding and conclusive, therefore, there is no bar in case, a fresh release application is filed setting up the need of the sons and wife of the two petitioners.

It is not the case of the petitioners that the first petitioner had died during the proceedings or had superannuated from the service so as to set up the need of the their sons being subsequent events occurring during the course of the proceedings. None of the petitioners have retired nor was their case that during the pendency of the appeal any one of them has superannuated, therefore, their need be considered, accordingly.

On the contrary, the release was sought at the appellate stage by setting up the need for the sons of first petitioner and wife of third petitioner upon the petitioners failing to establish their bonafide need which cannot fall within the ambit and scope of being subsequent developments. The subsequent need set up at the appellate stage was not, therefore, bonafide.

The Apex Court in Pratap Rai Tanwani Vs. Uttam Chand1, held that subsequent developments can be taken into consideration to accord relief to the parties, provided only when such developments had a material impact on those rights and obligations.

Similar view was expressed in Ramesh Kumar Vs. Kesho Ram2, wherein the Apex Court observed : -

"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."

It also reminds me of a celebrated Full Bench decision of the Nagpur High Court in Chote Khan Vs. Mohammad Obedalla Khan3, wherein the view of the Court to take note of the subsequent developments specially at the appellate stage was taken up for consideration. Hidayatulla, J (as His Lordship then was) held as under :

"on a review of judicial opinion, that an action must be tried in all its stages on the cause of action as it existed at the commencement of an action. No doubt, Courts 'can' and sometimes 'must' take notice of subsequent events, but that is done merely 'inter partes' to shorten litigation but not to give to a defendant an advantage because a third party has acquired the right of the plaintiff."

Reliance has been placed on a decision of the Apex Court in Jai Prakash Gupta (Dead) by Lrs. v. Riyaz Ahmad and another4, wherein it has been observed as follows:

"In view of the discussions made hereinabove, it is therefore, a settled proposition of law that subsequent developments 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, even at any stage of the proceeding, is not precluded from taking a cautious cognizance of the subsequent developments of fact and law to mould the relief. Keeping these principles in mind and considering the nature of subsequent developments as brought out by the parties during the pendency of the writ petition, we are of the view that we will have to find out a solution within the scope of this exception. Therefore, the test is whether the subsequent events of fact have a material bearing on the entitlement of the parties to relief or on aspects which bear on the moulding of the relief awarded before consideration of such subsequent events."

This Court in M/s Novelty Glass House and Crokery, Jhansi and another v. Ist Additional District Judge, Jhansi others,5 referred to the observation made by the Supreme Court in Rameshwar v. Jot Ram,6 wherein the Court observed as follows:

Normally, "the rights of parties must be determined when they seek justice and not when the last court has had its last say, long years after the litigation was initiated....a litigant who seeks justice in a perfect legal system gets it when he asks for it. But because... of appeals at higher levels... the end product come considerably late... Higher Courts pronounce upon the rights of parties as the facts stood when the first court was first approached. The realism of our processual justice bends our jurisprudence to mould, negate or regulate relief in the light of exceptional development having material and equitable import, occurring during pendency of the litigation so that the court may not stultify itself by granting what has become meaningless or does not by a myopic view miss decisive alternative in fact situation or legal position and drive parties to fresh litigation where as relief can given right here. The broad principle so stated strike a chord of sympathy in a court of good conscience...

The impact of subsequent happenings may now be spelt out...Where the nature of the relief as originally sought has become obsolete or unserviceable or a new form of relief will be more efficacious on account of development subsequent to the suit or ever during the appellate stage it but fair that relief is moulded varied or reshaped in the light of altered facts...

Where a cause of action is deficient but later events has made up the deficiency, the court may in order to avoid multiplicity of litigation permit amendment and continue the proceeding provided no prejudice is come to the other side...

While taking cautions judicial cognisance of post dated events even for the limited purpose explained earlier, no-court will countenance a party altering by his own manipulation a change in situation and pleaded for relief on the altered basis."

In the facts of Rameshwar case (supra), the landlord set up the need for his two unemployed sons. Both the sons got employed during pendency of the proceeding, therefore, need of the landlord was extinguished. By way of amendment, the need for the third son who was still unemployed was set up, therefore, the court observed that if the release proceeding was confined to his earlier sons within the proceeding could not continue but the need of the third son was still there as he was still unemployed, therefore, it could be proceeded in the same proceedings.

The law stated herein above is that the subsequent developments to make up deficiency of cause of action can be taken into account to avoid multiplicity of proceedings.

In the facts of the present case, the landlord set up an entirely new case at the appellate stage upon their case being rejected by the Prescribed Authority for release of the premises in question which was rightly held by the courts below that it could not have been gone into in the proceedings as filed by the petitioners.

In view of the facts and circumstances, the Court in exercise of its jurisdiction under Article 226 of the Constitution of India is not inclined to interfere with the impugned orders.

The writ petition being devoid of merit, is liable to be dismissed.

The writ petition is, accordingly, dismissed.

No order as to costs.

Order Date :- July 28, 2015

Mukesh Kr.