D K SONI Vs. P K MUKERJEE

JUDGEMENT

(1.) This is an appeal by the tenant against an order upholding the order of eviction. The ground of eviction was the landlord's bona fide need and requirement. The appeal rises out of the judgment and order of the High Court of Allahabad dt. 18th May, 1983 and also against the order dt. 23rd May, 1983 dismissing a review application by the said High Court. Shri P. K. Mukherjee, respondent 1 herein had filed an application under S. 3 of the U. P. Act No. 3 of 1947 (Temporary Control of Rent and Eviction Act), hereinafter referred to as the old Act, seeking permission to file the suit for eviction of the tenant, the father of the appellant herein, on the ground that accommodation in dispute was bona fide required by the landlord for his personal need. In September, 1971 the Rent Control and Eviction Officer rejected the application of the landlord and held that his requirement was not bona fide. On 12th Nov., 1971 the Commissioner allowed the revision filed by respondent 1 against the order-of the Rent Control and Eviction Officer dated 5th Sept., 1971. It may be mentioned that on 15th July, 1972 the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 hereinafter referred to the new Act came into effect. On 2nd Aug., 1972 the State Government rejected the representation of the tenant namely, the father of the appellant filed under S. 7 of the old Act against the order of the Commissioner dated 2nd Nov., 1971. On or about 7th Feb., 1975) the learned single Judge of the High Court of Allahabad allowed the writ petition of the tenant and set aside the orders of the Commissioner and the State Government hereinbefore mentioned. On 3rd Aug. 1978 a Division Bench of the High Court of Allahabad allowed the appeal of respondent 1 and set aside the judgment of the learned single Judge of the High Court dated 7th Feb., 1975 and upheld the orders of the Commissioner and the State Government allowing the eviction of the tenant. In Sept., 1978 respondent 1 moved an application under S. 21 read with S. 43(2)(rr) of the new Act. Thereafter it is alleged that respondent 1 had executed an agreement to sell the disputed premises in favour of the appellant's wife namely, Smt. Madhu Soni. It is material to refer to the said agreement in brief. The agreement is dated as mentioned hereinbefore 7th Nov., 1978 and was entered into between Shri P. K. Mukerjee, the landlord and Smt. Madhu Soni wife of Shri D. K. Soni (son of Shri Harbans Lal Soni) the then tenant. It was stated that the landlord had filed an application against Shri H. L. Soni the father-in-law of vendee for permission to file a suit for eviction against him on account of his personal need for the aforesaid premises and permission had been granted. It also recited that a portion of the said land which was demarcated in the site plan measuring about 121' x 101.5' of the vendor which would be for the construction of a house would be in exclusive possession of the vendor and the rest of the property at 8, Panna Lal Road, Allahabad being the disputed premises would be sold to Smt. Soni. It also recited that the vendee or his family members would have no right of whatsoever nature and the vendee, that is to say, the appellant had given up his tenancy right in respect of the same, that is to say, the portion to be kept with the vendor and the premises will be built on the vacant land with the money that would be obtained by selling the property to Smt. Madhu Soni. The property was sold for Rs. 1,00,000/- out of which Rs. 5,000/- was paid as earnest money and it was stipulated that the rest of the money would be paid at the time of the registration. It was further agreed that the parties would move the proper authorities as early as possible for permission to transfer and the sale deed would be executed within one month of the grant of the permission and notice to the vendee. It was further stated that if the vendee failed to get the sale deed executed after one month from the date of permission and notice to the vendee by the vendor, the earnest money of Rs. 5,000/- would be forfeited and the right of the vendor would be as it subsisted prior to the agreement. It was further provided that in the event of non execution of the sale deed on account of any act or failure on the part of the vendee in pursuance of the agreement to sell, the property would stand released in favour of the vendor and the earnest money of Rs. 5,000/- would be forfeited. It was clearly stipulated that the need of the vendor for the premises still subsisted and this agreement was being entered into since it would be possible for the vendor to construct a house for himself on the land not agreed to be transferred measuring 121' x 101.5. On that basis the parties had sihad signed agreement on 7th Nov. 1978.

(2.) On 12th Dec., 1978 the father of the present appellant Shri H. L. Soni who was the original tenant died leaving behind him two sons including the appellant and one daughter. It was alleged that on 18th Dec 1978 respondent 1 sent a letter of condolence to the appellant on the death of appellant's father. On 22nd Dec. 1978 appellant informed the Prescribed Authority before whom the application under S. 21(l)(a) of the new Act read with S. 43(2)(rr) was pending about the death of Shri H. L. Soni. On 23rd March, 1979 respondent 1 moved an application for substitution in Case No. 53 of 1978 for bringing on record the heirs of deceased Shri H. L. Soni along with application under S. 5 of the Limitation Act. On 10th Nov., 1970 the Prescribed Authority rejected the petitioners application for substitution and held that respondent 1 had full knowledge of the death of Shri H. L. Soni and he did not move the application within time. On 11th Dec. 1979 respondent No. 1 moved a second application under S. 21(1)(a) read with S. 43(2)(rr) of the new Act on the same ground on which the first application was moved. The second application was registered as Case No. 68 of 1979. It is alleged further that on 12th Mar. 1981 respondent 1 executed two separate agreements to sell the property in dispute in favour of R. P. Kanodia and P. K. Kanodia respectively. The Prescribed Authority on 7th July, 1981 held that the second application under S. 21(1)(a) read with S. 43(2)(rr) of the new Act being Case No. 68 of 1979 was within time and directed the tenant to be evicted from the premises in dispute. The Additional District Judge, Allahabad on 25th Oct. 1982 dismissed the appeal of the tenant filed against the order of the Prescribed Authority dated 7th July, 1981. On 11th Mar., 1983 the appellant's wife Smt. Madhu Soni, filed a suit for injunction restraining Respondent No.1 from dispossessing her from the premises in dispute on the strength of registered agreement and she asserted that she resided in the accommodation as a result of part performance under S. 53A of the T.P. Act, 1882. Initially injunction was granted ex parte by the trial Court and thereafter it was vacated after hearing respondent 1. Aggrieved thereby an appeal was filed by Smt. Madhu Soni in which the High. Court had stayed dispossession. The High Court thereafter dismissed the writ petition of the tenant against the orders of the Prescribed Authority for eviction and the order of the Additional District Judge. A review petition was filed by the appellant and the same was dismissed. This appeal by special leave is against that decision of the High Court dt. 18th May, 1983.

(3.) Behind this long tale of dates the questions involved in this appeal are short, namely, firstly in view of the provisions of S. 43(2)(rr) was the High Court right, in the facts and circumstances of the case specially the death of original tenant being alleged, and in view of the fact that the execution of the order passed for eviction had become final before coming into operation of the new Act, the order was proper and secondly, how far the subsequent events, namely, the agreement with the wife of one of the sons of the original tenant to purchase property as well as the agreement with the Kanodias mentioned hereinbefore demolish or destroy the case of a bona fide need of the landlord. In other words are these not sufficient subsequent events which destroy the landlord's bona fide need and as such should be taken note of by the appropriate Courts in ordering eviction. In this appeal, therefore, we have to keep in mind two aspects of law namely, the finality of the decisions and secondly, how far and to what extent subsequent events should be taken note of in order to do justice between the parties.