D K SONI Vs. P K MUKERJEE

JUDGEMENT

(1.) THIS case has a chequered history. Respondent No. 1 P.K. Mukerjee is landlord of an accommodation of which late H.L. Soni, predecessor -in -interest of the Petitioner and Respondents 2 to 4, was the tenant. An application was made by Respondent No. 1 under Section 3 of the U.P. (Temporary) Control of Rent and Eviction Act, 1947 (hereinafter referred to as the U.P. Act 3 of 1947) for permission to file a suit for ejectment against late H.L. Soni on the ground that the accommodation in question was bonafide needed by him for his own use. The application was contested by H.L. Soni and was dismissed by the Rent Control and Eviction Officer on 25 -9 -1971. Against that order a revision was filed by Respondent No. 1 which was allowed by the Commissioner on 12 -11 -1971 and the permission prayed for was granted. H.L. Soni made a representation to the State Government under Section 7 -F of U.P. Act 3 of 1947, which was rejected by the State Government on 2 -8 -1972. A writ petition was thereafter filed by H.L. Soni in this Court being writ petition No. 5284 of 1972 which was allowed on 7 -2 -1975 and the orders of the Commissioner and the State Government were quashed. Respondent No. 1 preferred a special appeal against the judgment of the learned Single Judge dated 7 -2 -1975 which was allowed by a Division Bench of this Court on 31 -8 -1978 whereby the order of the Commissioner granting permission to Respondent No. 1 to file a suit for ejectment of H.L. Soni as confirmed by the State Government was restored. An application was thereafter filed by Respondent No. 1 on 4 -10 -1978 under Section 43(2)(rr) read with Section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the U.P. Act 13 of 1972) for eviction of H.L. Soni on the basis of the permission granted by the Commissioner as aforesaid. During the pendency of that application H.L. Soni died on 12 -12 -1978. As is apparent from paragraphs 9 and 10 of the counter -affidavit filed by Respondent No. 1 in the present writ petition an application was made by the Petitioner who is one of the sons of late H.L. Soni for substitution of the heirs of late H.L. Soni and on 3 -3 -1979 an order was passed inter alia stating that Shri B.B. Tandon, Advocate, who had filed his Vakalatnama for D.K. Soni, one of the alleged legal heirs of late H.L. Soni, undertakes to file Vakalatnama for other heirs of the deceased H.L. Soni. It was further ordered that a substitution application be moved for amendment of the application. 23 -3 -1979 was fixed for further orders. In paragraph 9 of the rejoinder affidavit it has on the other hand been stated that no application was made by the Petitioner for substitution on 19 -12 -1978 but only an application was filed on 22 -12 -1978 intimating the Court that the tenant was dead and had left his heirs. Be that as it may, it is not disputed that the Petitioner did file an application through Shri B.B. Tandon, Advocate, and the order dated 3 -3 -1979 referred to above was passed. Respondent No. 1 thereafter made an application on 23 -3 -1979 to substitute the legal representatives of late H.L. Soni. This application was contested by the legal representatives of late H.L. Soni and was dismissed by the Prescribed Authority on 10 -11 -1979.

(2.) RESPONDENT No. 1 thereafter made another application on 11 -12 -1979 under Section 43(2)(rr) read with Section 21(1)(a) of U.P. Act 13 of 1972 for eviction of the legal representatives of late H.L. Soni including the Petitioner on the basis of the aforesaid permission granted by the Commissioner. This application was contested by the legal representatives of H.L. Soni but was allowed by the Prescribed Authority on 7 -7 -1981. An appeal was preferred against that order by the legal representatives of H.L. Soni before the District Judge which was transferred to the Court of the 4th Additional District Judge, Allahabad, Respondent No. 5, who dismissed the said appeal on 25 -10 -1982. The order of the Prescribed Authority dated 7 -7 -1981 and that of the Additional District Judge dated 25 -10 -1982 are sought to be quashed in the present writ petition.

(3.) ACCORDING to Counsel for the Petitioner the subsequent event stated above had to be taken into consideration by the Prescribed Authority as well as the Additional District Judge and in not doing so they have committed a manifest error of law and their orders deserve to be quashed. In support of the submission that subsequent events had to be taken into consideration in such a matter reliance has been placed by Counsel for the Petitioner on the decision of the Supreme Court in Ramji Dayawala v. Invest Import : AIR 1981 SC 2085 where after referring to an earlier decision of that Court in P. Venkateswarlu v. Motor and General Traders : AIR 1975 SC 1409 it was held that in the very nature of action for eviction on the ground of personal requirement, the Court has not only to be satisfied that the requirement was present at the date of institution of the action but continued to exist at the time of decree and has to mould the decree accordingly. Ramji Dayawala's case (supra) was not a case by a landlord for eviction of a tenant on the ground of personal requirement and the observations made above were made in order to explain the import of the decision in P. Venkateswarlu's (supra) the facts of the case of P. Venkateswarlu (supra) were that a landlord had claimed eviction of his tenant under Section 10(3)(iii)(a) and (b) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 which, inter alia, contemplated that the landlord was not occupying a non -residential building in the town. During the pendency of a revision in the High Court a subsequent fact indicating that the landlord had in the meantime been able to occupy a non residential building in the town was brought to the notice of the High Court and on its basis it was contended that the tenant was not liable to be evicted under Section 10(3)(iii) referred to above inasmuch as the requisite condition for invoking that provision namely that the landlord was not occupying a non residential building in the town had ceased to exist. It is in this context that the question as to whether the subsequent event could or could not be taken into consideration came up for consideration and it was held that the aforesaid subsequent fact could be taken into consideration. Suffice it to say so far as these cases are concerned that no exception can be taken to the law laid down therein. There is, however, one distinguishing feature in the instant case on account of which in my opinion the law laid down in these cases cannot be applied and the principle enunciated by the Supreme Court in another decision reported in Syed Abdullah Kazmi v. Additional District Judge, Allahabad : AIR 1981 SC 1724 is applicable to the facts of the instant case. In Syed Abdullah Kazmi's case it was laid down that where an order of eviction of a tenant from part of premises had become final proceedings could not be reopened on the basis of subsequent events and in such circumstances subsequent events could not be taken into consideration.