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Narasimha Vs. Yellappa Amhase - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberC.R.P. No. 2545 of 1972
Judge
Reported inAIR1973Kant317; AIR1973Mys317; ILR1973KAR220; (1973)1MysLJ353
ActsCode of Civil Procedure (CPC) - Order 41, Rule 27
AppellantNarasimha
RespondentYellappa Amhase
Appellant AdvocateR.U. Goulay, Adv.
Respondent AdvocateV. Tarakaram, Adv.
DispositionPetition dismissed
Excerpt:
.....of waterways and providing ferry services - though act has been amended to enable authorities to take up such works, no action has been taken so far during last six years directions given to authorities concerned to invoke powers conferred on them and to set law in motion in this regard within prescribed time. - these cases are where the court finds that because of altered circumstances like devolution of interest it is necessary to shorten litigation. the court takes notice of subsequent events to shorten litigation, preserve rights of both the parties and to subserve the ends of justice .(underlining (italics) by court). 11. examined in the light of the above enunciation, the learned district judge's refusal to consider the additional evidence produced on behalf of the..........facts, refused to accept or act on them on the ground, which in substance is to the effect, that events subsequent to the decree made by the trial court could not be made the basis for setting aside such a decree. he, therefore, dismissed the appeal. hence this revision.3. before proceeding to consider the question of law raised in this petition, it is relevant to reproduce the observations of the learned district judge in this regard, occurring in para 19 of the judgment. they are as follows:--'i am wholly unable to subscribe to the appellant's counsel's argument, since in determining the right of the respondent landlord to an order of eviction, the facts and circumstances existing at the time of passing the order alone is a relevant criterion (see : air1957bom45 ). merely because an.....
Judgment:
ORDER

Venkataswami, J.

1. This petition by the tenant under Section 50 of the Mysore Rent Control Act, 1961, is directed against an order made by the Second Addl. District Judge, Dharwar, in Civil Appeal No. 181/65, whereby the order of eviction made by the Addl. Munsiff, Hubli, in Mis. A. No. 154 of 1963, has been affirmed.

2. The case of the landlord is that he bona fide and reasonably requires the suit shop premises for the expansion of his cloth business which at present is being carried on in the adjoining shop premises. The tenant has resisted the petition on various grounds which it is unnecessary to set out for the purpose of the present revision. The Trial Court made a decree for eviction. The tenant, on appeal to the District Judge, filed several I. As. purporting to be made under Rule 27, Order 41, Civil P. C. seeking to produce several photographs showing that subsequent to the order of eviction, and during the pendency of the appeal, the landlord had leased out the shop premises already in his occupation. The purpose of such production of additional evidence is to show that the need of the landlord is no longer subsisting, and, therefore, he should be nonsuited. The learned District Judge while adverting to these facts, refused to accept or act on them on the ground, which in substance is to the effect, that events subsequent to the decree made by the trial Court could not be made the basis for setting aside such a decree. He, therefore, dismissed the appeal. Hence this revision.

3. Before proceeding to consider the question of law raised in this petition, it is relevant to reproduce the observations of the learned District Judge in this regard, occurring in para 19 of the judgment. They are as follows:--

'I am wholly unable to subscribe to the appellant's counsel's argument, since in determining the right of the respondent landlord to an order of eviction, the facts and circumstances existing at the time of passing the order alone is a relevant criterion (See : AIR1957Bom45 ). Merely because an appeal has been filed against the lower Court's order, it would not justify the adducing of the evidence of the nature that is now sought to be adduced by the appellant. As pointed out by the respondent's Counsel, whatever order is passed by this Court, will operate as the order that ought to have been passed by the trial Court when it passed the order and in the light of this view, it is not possible to take into consideration the photos now produced by the appellant which all relate to matters which have taken place subsequent to the passing of the trial Court's order. Therefore the facts produced along with I. A. Nos. 1, 2 and 3 are not admissible in evidence as an additional evidence in support of the appellant's contention.'

4. On behalf of the petitioner-tenant, Sri R. U. Goulay the learned Counsel, submitted that subsequent events, as those concerned in the present case, could as a matter of law be taken into account in an appropriate case in order to cut short the litigation or afford redress to a party by suitably modifying the order or decree concerned in an appeal or revision. He also contended that the provisions of Rule 27 of Order 41, Civil P. C. could properly be invoked for this purpose. In support of such proposition he relied on two decisions, one of this Court and the other of the Supreme Court. The said decisions are: Krishnappagouda v. Basawa Kom Nagangouda Patil, ((1961) 39 Mys LJ 888) and M/s. M. Laxmi & Co. v. Dr. Anant R. Deshpande, : [1973]2SCR172 .

5. On behalf of the respondent, Sri V. Tarakaram the learned Counsel, contended that even if such subsequent event could be in certain circumstances taken note of as contended for the petitioner, in matters relating to recovery of possession from a tenant, who is entitled to certain amount of protection under a Rent Act, such a course would be permissible, only when the question of possession is at large in an appeal. In other words, only in an appeal by a landlord, which can happen only when possession had been denied to him in the Court of first instance. it can be reasonably posited that such a question of possession can be said to be at large and not when such possession has been decreed by such a Court. In the event of the latter position, a tenant, in an appeal against such a decree, can be said to be seeking a review of such an order, only on the facts and circumstances, available on record on the date of the passing of the Order for possession. In support of this submission, he relied on the case of King v. Taylor, ((1954) 3 All ER 373).

6. I shall now proceed to consider the decisions relied on in support of the respective submission.

7. In Krishnappa Gouda's case, (1961) 39 Mys. LJ 888, it is no doubt laid down that an ex post facto sanction, accorded subsequent to the passing of the decree by the lower Court, could be produced pursuant to Rule 27, Order 41, Civil P. C. 1908. But, the facts and circumstances concerned in that case are nowhere similar to the circumstances present in the case on hand. Be that as it may, it is unnecessary to enter into an analysis of this case as in my opinion the decision of the Supreme Court in the case of Laxmi & Co., : [1973]2SCR172 which was also a matter arising under a Rent Control Act, similar to the one concerned in this case, more or less affords an answer to the question posed therein.

8. I shall first turn to the case of (1954) 3 All ER 373 relied on on behalf of the respondent. That was a case arising under the English Rent and Mortgage Interest Restrictions (Amendment) Act, 1933, wherein events subsequent to an Order for possession, which had been denied, to the landlord, and he, therefore, had appealed, were sought to be pressed into service on behalf of the tenant. The learned Master of Rolls in repelling an argument based on a passage in Megarry on the Rent Acts to the effect that even in a case where a landlord is compelled to appeal against an order refusing possession, events which had occurred after the hearing in the County Court (Court of first instance) were irrelevant in a Court of Appeal (Vide: Goldthorpe v. Bain, ((1952) 2 All ER 23), has stated the position more or less as contended for by Sri Tarakaram. The relevant enunciation is by Sir Raymond Evershed, M. R. and occurs at page 376 of the aforementioned report, and is as follows:

'.....It is, strictly, unnecessary for me, in the present case, to express a final opinion about it, but, as at present advised, and having regard to the imperative language of Section 3 (1) of the Act of 1933 and the proviso to para, (h) of Sch. 1 to the Act, it seems to me that, if in such a case as this it is shown to the Court that the circumstances have changed materially (and I mean by 'materially' in a way which is material in the consideration and enforcement of the provisions of the Act) since the date of the hearing before the County Court, it does not by any means follow that this Court is entitled to ignore that change of circumstances. In my judgment, the proper course is for the Court which is asked to make an order for possession to take into consideration all the circumstances which are then before it. In the converse, then, no doubt, the function of this Court on an appeal is, prima facie, at any rate, to consider whether the order was rightly made, having regard to the facts and circumstances which were before the County Court. As it seems to me, however, the situation is not the same when this Court is asked to make an order for possession on the landlord's appeal.....'

9. The above enunciation no doubt in a large measure supports the contention urged by Sri Tarakaram. But, it is to be remembered that the learned Master of the Rolls, rests such a proposition, inter alia, on the express and imperative language of the relevant provisions of the statute he was concerned with. In this view, I am not persuaded to accept the contention urged, by Sri Tarakaram.

10. On the other hand, it seems to me, that the enunciation in the case of Laxmi & Co. : [1973]2SCR172 has a clear bearing on the question raised herein. That was a case arising under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, (Bombay Act LVII of 1947). A question relating to the taking of notice of the sub-sequent events evidenced by certain documents had been directly raised in support of a contention that the landlord had lost his right to prosecute the petition for recovery of possession. The relevant enunciation occurs at para 27 at page 177 of the said report and runs thus :

'It is true that the Court can take notice of subsequent events. These cases are where the Court finds that because of altered circumstances like devolution of interest it is necessary to shorten litigation. Where the original relief has become inappropriate by subsequent events, the Court can take notice of such changes. If the Court finds that the judgment of the Court cannot be carried into effect because of change of circumstances the Court takes notice of the same. If the Court finds that the matter is no longer in controversy the Court also takes notice of such event. If the property which is the subject-matter of suit is no longer available the Court will take notice of such event. The Court takes notice of subsequent events to shorten litigation, preserve rights of both the parties and to subserve the ends of justice .....' (Underlining (italics) by Court).

11. Examined in the light of the above enunciation, the learned District Judge's refusal to consider the additional evidence produced on behalf of the parties is clearly erroneous. The judgment, therefore, cannot be sustained.

12. I should, however, like to observe that a Court called upon to accept and act on additional evidence, as in the present case, must exercise its discretion with due care and caution and a party ought to be allowed such a privilege only on the basis of reasonably credible material, as otherwise, it may give rise to unnecessary, prolonged and vexatious litigation.

13. For the above reasons, the petition succeeds and is allowed. Consequently, the judgment in Civil Appeal No. 181 of 1965 is set aside. The matter will now stand remitted to the Court of the Second Additional District Judge, Dharwar, for a fresh disposal of the appeal in accordance with law and in the light of the above observations. In the circumstances the parties will bear their own costs. The learned District Judge will dispose of the appeal as expeditiously as possible.


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