NARAYANAN NAIR Vs. PACHUMMA

JUDGEMENT

(1.) BOTH these Civil Revision Petitions arise out of proceedings for eviction of two tenants under the Kerala Buildings (Lease and rent Control) Act (hereinafter called the Act ). The tenants are revision petitioners in CRP. No. 507 of 1979, while the landlords are the revision petitioners in CRP. No. 588 of 1979. The building concerned was taken on lease as per Ext. A-1 dated 9-10-1969 by the petitioners in CRP. No. 507 of 1979. 1 will be referring to the parties on the basis of their position in CRP. 507 of 1979. Notice of eviction was sent on 12-7-1976, wherein it had been stated that the landlords required the building for their bona fide need. The Rent Control Court found that they did not have any bona fide need for eviction and that the 2nd petitioner was mainly depending upon the income from the schedule premises for his livelihood. However, eviction was ordered under S. 11 (4) (iii) of the Act holding that the 2nd petitioner was possessed of a building which was suitable for carrying on the trade, which is being conducted in the scheduled premises.

(2.) APPEALS were taken to the Sub Court by both the landlords and the petitioners. The Sub Court reversing the decision of the Rent controller found that the landlords were entitled to eviction on the ground of bona fide need. However, as the 2nd petitioner was entitled to protection of the second proviso to S. 11 (3), eviction therefore on the ground of bona fide need was refused. But eviction was granted again under S 11 (4) (iii) of the act. There was a revision taken to the District Court under S. 20 of the Act and in revision the District Judge held that though the landlords have got bona fide need, the tenants are not liable to surrender in view of the protection under second proviso to S. 11 (3) of the Act The District Court however confirmed the findings of the lower authorities that eviction can be sustained under S. 11 (4) (iii) of the Act. This decision has given rise to the Civil revision Petitions.

(3.) IN this case it has come out in evidence that the 2nd petitioner had taken out a building-door No. 9/252-or the purpose of his business. One Rohini Amma was the owner of this building. She sold the building to the wife of the 2nd petitioner. According to the 2nd petitioner, who had been examined in this case as RW. 1, he surrendered the building to the owner prior to Ext. A-2 notice. As the courts below had held, there is absolutely no record which would indicate that there had been such surrender. It might be noted that the landlord, at the time of the alleged surrender, was none other than the 2nd petitioner's wife. IN regard to the necessity for surrender what is stated is that there had been a notice issued by the original and his assignee landlords for surrender and as pointed out earlier the assignee landlord is the 2nd petitioner's wife. Therefore it is difficult to accept the case of the tenants that there had been a surrender of that building to its landlord. I am sitting in revision and see no reason to interfere at all with the finding of fact namely that there had been no such surrender. Then what is strongly put forward by the learned counsel for the petitioners, the tenants, is that in any view of the matter at the time when the District Court passed the order the petitioners ceased to have any right over the same, because the 2nd petitioner's wife had sold the building and given possession to the assignee. According to Sri. Bhaskaran Nambiar, learned counsel for the petitioners, this is a case where tire court should take the subsequent events, in moulding the relief and in this connection he referred to the decisions of the Supreme Court in P. Venkateswarlu v. Motor & General Traders (AIR. 1975 sc. 1409) and Rameshwar v. Jot Ram (AIR. 1976 SC. 49 ). IN this connection he emphasised on the wording in S. 11 (4) (iii), which reads as follows: " (4) A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building, (iii) if the tenant already has in his possession a building or subsequently acquires possession of or puts up a building, reasonably sufficient for his requirements in the same city, town or village;" According to Mr. Nambiar, this would indicate that the court should take due note of a subsequent acquisition of possession of a building by the tenant which in the circumstances would only mean a subsequent acquisition after the petition had been filed. He would say that if subsequent acquisition can be taken note of a subsequent dispossession of the building or giving possession to another has also to be taken into account. Even assuming the interpretation that is put upon S. 11 (4) is acceptable, I find it difficult to accept the plea that the court should refuse to grant relief to a landlord on the basis of the tenant giving up of possession of a building which is reasonably sufficient for the tenant's requirements in the same town or city just to escape eviction when the landlord approaches the court under S. 11 (4) of the Act. It might be noted that the Supreme Court decision refers to the following quotation from the decision of the Supreme Court of the United States in Patterson v. State of Alabama (1934) 294 US 600) at page 607, which explains the principle on which subsequent events are taken into consideration. It might be noted that the same passage had been followed by Gwyer C. J. in Lachmesawar prasad Shukul v. Keshwar Lal Chaudhuri (AIR. 1941 FC 5 ). The said passage reads as follows: "we have frequently held that in the exercise of our appellate jurisdiction we have power not only to correct error in the judgment under review but to make such disposition of the case as justice requires. And in determining what justice does require, the Court is bound, to consider any change, either in fact or in law, which has supervened since the judgment was entered". It has been put in very clear and precise terms in rameshwar v. Jot Ram (AIR 1976 SC. 49), where justice Krishna Iyer said: "it is important that the party claiming the relief or change of relief must have the same right from which either the first or the modified remedy may flow. Subsequent events in the course of the case cannot be constitutive of substantive rights enforceable in that very litigation except in a narrow category (later spelt out) but may influence the equitable jurisdiction to mould reliefs. Conversely, where rights have already vested in in a party, they cannot be nullified or negated by subsequent events save where there is a change is the law and it is made applicable at any stage Courts of justice may, when the compelling equities of a case oblige them, shape reliefs-cannot deny rights-to make them justly relevant in the updated circumstances. Where the relief is discretionary, courts may exercise this jurisdiction to avoid injustice. Likewise, where the right to the remedy depends, under the statute itself, on the presence or absence of certain basic facts at the time the relief is to be ultimately granted, the Court, even in appeal, can take note of such supervening facts with fundamental impact. Where a cause of action is deficient but later events have made up the deficiency, the Court may, in order to avoid multiplicity of litigation, permit amendment and continue the proceeding, provided no prejudice is caused to the other side. All these are done only in exceptional situations and just cannot be done if the statute, on which the legal proceeding is based inhibits, by its scheme or otherwise, such change in cause of action or relief. The primary concern of the court is to implement the justice of the legislation. Rights vested by virtue of a statute cannot be divested by this equitable doctrine. " (Emphasis mine ). On the basis of the principles enunciated by the Supreme court it is difficult to accept the contention that when the tenant gives up his right to a building in his possession just before the final order in the proceeding so as to defeat the rights of the landlord the court should take note of that in moulding the relief and refuse the landlord's prayer for eviction. There was no case that the 2nd petitioner and his wife are not staying together and not on good terms. IN fact the evidence clearly indicates that they are living together. IN the circumstances the assignment by the lady can only be considered to be to escape eviction of her husband in the present proceedings. There is no evidence to show any necessity for the assignment at that time.