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Shri Mahraj NaraIn Khanna Vs. the Additional District Judge, Moradabad and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 3555 of 1973
Judge
Reported inAIR1976All173
ActsUttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 - Sections 3, 3(2), 43 and 43(2); Uttar Pradesh (Temporary) Control of Rent and Eviction Act, 1947 - Sections 3; Constitution of India - Article 226
AppellantShri Mahraj NaraIn Khanna
RespondentThe Additional District Judge, Moradabad and ors.
Appellant AdvocateH.S. Joshi, Adv.
Respondent AdvocateStanding Counsel
DispositionPetition dismissed
Excerpt:
.....section 3 of old act pending before commissioner - new act passed and application transferred to district judge - applicant found in possession of sufficient accommodation hence application rejected by district judge - whether application was to be disposed of in accordance with old act or new act - held, application to be disposed of in accordance with provisions of old act. - - this portion comprised of shops and godowns on the ground floor as well as a residential portion on the first floor. after having given the said finding the learned additional district judge considered the argument of the petitioner based on explanation (iv) of section 21 of the new act and found that as the requirement of the aforesaid explanation had not been satisfied by the petitioner, he was not..........to the district judge under section 43 (m) of the new act. the said revision was dismissed by the learned district judge on 11-1-1973 with the finding that the accommodation in possession of the petitioner was quite sufficient and his, need, therefore, could not be considered to be genuine. after having given the said finding the learned additional district judge considered the argument of the petitioner based on explanation (iv) of section 21 of the new act and found that as the requirement of the aforesaid explanation had not been satisfied by the petitioner, he was not entitled to get its benefit. feeling aggrieved, the petitioner has filed the present writ petition.5. the first question that needs determination is whether the revision filed by the petitioner before the commissioner.....
Judgment:

K.C. Agarwal, J.

1. This writ petition came to us on a reference made by a Division Bench at the time of its admission in view of a substantial question of law as to the interpretation of Explanation (iv) of Section 21(1) of the New Rent Control Act involved therein. The facts necessary for appreciating the question arc as follows:

House No. 83/B-12 situate in Mohalla Chauraha Gali, Moradabad, belonged to a joint family consisting of the petitioner, his father Har Govind Singh and three brothers viz. Hari Shankar, Sri Shankar and Jag Mohan. A partition took place between the members of the joint family in 1968. As a result of the aforesaid partition the property shown by yellow colour in the site plan attached with the partition deed came to the share of Mahraj Narain Khanna, the petitioner. This portion comprised of shops and godowns on the ground floor as well as a residential portion on the first floor. Mesho Saran, respondent No. 3, was a tenant of a portion shown in yellow colour which had fallen to the share of the petitioner. The accommodation in his possession consists of a room facing east, a tin-shed and a roof. Two rooms facing towards west were in use and occupation of the petitioner. There was one more room in the portion given to the petitioner in the partition and that was in the tenancy of one Abdul Sayeed.

2. The petitioner filed an application under Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act, hereinafter referred to as the Old Act, for permission to bring a suit for ejectment against respondent No. 3, in respect of the portion in his occupation as tenant on the ground that the said portion was bona fide required by him for occupation by himself. He alleged that there were eight members in his family including his father and sister but he had only two rooms in his occupation which were quite insufficient to meet his requirement. He also alleged in the application that the portion in which he was living had come to the share of his brother Hari Shankar and as the said portion was in dilapidated condition -his brother was pressing upon him to vacate the same so that his brother could reconstruct the same after demolition. The petitioner further alleged in the application that after obtaining possession of the premises in occupation of respondent No. 3, he would also get the same demolished and construct a new building in its place.

3. The application was contested by respondent No. 3 and allegations made by the petitioner about his need were denied. Respondent No. 3 alleged that neither the need of the petitioner was bona fide nor genuine and that he had more than enough accommodation for purpose of his residence. Respondent No. 3 also denied that the sister of the petitioner was living with him. He alleged that she had been married some timeback and that, since then she was living with her husband.

4. The Rent Control and Eviction Officer rejected the application, holding that neither the need of the petitioner was genuine nor bona fide on 1-4-1972. Aggrieved, the petitioner filed a revision under Section 3 (2) of the Old Act. During the pendency of this revision before the Commissioner, the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, heremaifter referred to as the New Act, came into force with effect from 15-7-1972. Consequent upon the enforcement of the said Act the revision filed by the petitioner stood transferred to the District Judge under Section 43 (m) of the New Act. The said revision was dismissed by the learned District Judge on 11-1-1973 with the finding that the accommodation in possession of the petitioner was quite sufficient and his, need, therefore, could not be considered to be genuine. After having given the said finding the learned Additional District Judge considered the argument of the petitioner based on Explanation (iv) of Section 21 of the New Act and found that as the requirement of the aforesaid Explanation had not been satisfied by the petitioner, he was not entitled to get its benefit. Feeling aggrieved, the petitioner has filed the present writ petition.

5. The first question that needs determination is whether the revision filed by the petitioner before the Commissioner under Section 3 (2) of the Old Act, could be decided in accordance with the provisions, of the New Act. The submission made by Sri H. Section Joshi, counsel for the petitioner was that as the old Act has been repealed by Section 43 (1) of the New Act, the rights of the parties should be decided on the basis of the New Act. He submitted that as an appeal is by way of the rehearing, the appellate court was bound in law to have taken into consideration all the changes introduced by the New Act and to have decided the rights of the parties on its basis. He also submitted that revisional jurisdiction of a Court emanates from appellate jurisdiction. Therefore, there is no distinction between the appellate and revisional jurisdiction in the application of principles submitted by him.

6. It may be worthy of note that the U. P. (Temporary) Control of Rent and Eviction Act was a temporary Act. The duration of the Act was extended from time to time by frequent amendments till at last it was to expire on September 30, 1972. Some time before the expiry of the life of this. Temporary Act, a permanent Statute was put on theStatute Book. By Section 43 of this New Act the U. P. Act No. 111 of 1947 was repealed Sub-section (2) of Section 43 deals with savings of the repeal of the Old Act. Section 43 (2) (a) provided that an application or proceeding pending before the commencement of the New Act before the District Magistrate under Section 3 of the Old Act, shall stand transferred to the Prescribed Authority and shall be deemed to be an application under Section 21 of the New Act. Clause (h) of Section 43 (2) provides for the amendments to be made in the pleadings in consequence of the provisions of the New Act. Clause (m) of this sub-section lays down that any revision relating to the grant erf permission under Section 3 of the Old Act pending immediately before the commencement of this Act before the Commissioner shall stand transferred to the District Judge and that his decision shall be final. Clause (r) (as it originally stood) provided for the enforcement of the permisision entitling a person who gets it after the com-mencement of the New Act to institute a suit for ejectment on the basis of the permission obtained by him.

7. The provisions noted above would show that the Legislature maintained a dis-tinction between two classes of cases. One, where an application was pending under Section 3 of the Aet 'before tbe Rent Control and Eviction Officer under Section 3 of the Old Act, the same stood converted by legal fiction incorporated in Clause (a) of sub-section (2) of Section 43 and bad to be tried as-an application under Section 21 of the New Act. But such a fiction was not provide for in the Act in respect of revisions which were pending before the Commissioner under Section 3 (2) of the Old Act. The Legislature only created a new machinery for the decision of these revisions and only laid down that all the revisions pending before the Commissioners would stand transferred to the District Judge and they would be decided by them. It did not provide for the conversion of a revision transferred to the District Judge to be tried as an appeal filed under the New Act. The provision made under Clause (m) to Section 43 (2) has thus a limited scope. This as it appears to us, was deliberate inasmuch as the rights of the parties had already been decided by the Rent Control and Eviction Officer and the Legislature in its wisdom did not think it proper to undo those judgments by directing them to decide in accordance with the provisions of the New Act. A scrutiny of Section 21 of the New Act and its comparison, with its counter-part contained in Section 5 of the Old Act, would indicate that there is a marked difference in the scheme providedfor in Section 21. The Legislature has laid down a number of things in Section 21 for the purpose of dealing with an application made under this provision which were not to be found in the Old Act. Requirement of revision filed under the Old Act, to be decided in accordance with the provision of the New Act, would have caused enormous legal difficulties. Taking these aspects into consideration, the Legislature purposely contented itself by directing that the revisions would stand transferred to the District Judge. As a result of the above discussion it would be found that the revision filed in the instant case should have been decided by the learned District Judge, in accordance with the provisions of the Old Act. The above view expressed by us is fully supported by a ruling of this Court reported in Sibte Hasan v. State of U. P., : AIR1974All86 .

8. Counsel for the petitioner, however, urged that the law laid down by this Court in Sibte Hasan v. State of U. P. : AIR1974All86 (supra), being in conflict with the decision of the Supreme Court in Qudrat Ullah v. Municipal Board Bareilly : [1974]2SCR530 was liable to be ignored. He urged that in Qudrat Ullah's case the Supreme Court ruled that an appeal is by way of a rehearing and that the court is bound to consider any change, either in fact or in law, which has supervened since the judgment was delivered. On the above premise the submission made by the counsel was that the rights of the parties in the instant case were rightly decided by the learned District Judge on the basis of the provisions of the New Act. We have given our consideration to the argument made by counsel for the petitioner but are unable to accede to the same.

9. The general principle of law is that a suit must be tried on the original cause of action. This principle does not only govern suits but also appeals. However, sometimes the original relief claimed becomes inappropriate or the law changes, affecting rights of the parties. In such circumstances, it becomes necessary to consider the changes brought about by the circumstances coming into existence after the delivery of judgment by the court against which the appeal is pending. But where, as here, the New Act itself provides that rights of the parties would be decided in accordance with the Old Act, the question of deciding the same in accordance with the provisions of the New Act, does not arise. The Supreme Court had an occasion recently to deal with the similar controversy in Rameshwar v. Jot Ram, (In Civil Appeal Nos. 817 to 819 = (Reported in : [1976]1SCR847 ) Krishna Iyer, J. speaking for theCourt enunciated the law in the following words:

'The impact of subsequent happenings may now be spelt out. First, its bearing on the right of action, second, on the nature of the relief and third, on its impotence to create or destroy substantive rights. 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 developments subsequent to the suit or even during the appellate stage, it is but fair that the relief is moulded, varied or reshaped in the light of updated facts. Patterson ((1934) 294 US 600) illustrates this position. It is important that the party claiming the relief or chance 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 a party, they cannot be nullified or negated by subsequent events save where there is a change in the law and it is made applicable at any stage. Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhury falls in this category. 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. Venkateswarlu : [1975]3SCR958 read in its statutory setting falls in this category. 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 (see Chokalingam Chetty v. Seethai Ache . The law stated in Ramji Lal v. The State of Punjab is sound: 'Courts do very often take notice of events that happen subsequent to the filing of suits and at times even those that have occurred during the appellate stage and permit pleadings to be amended for including a prayer for relief on the basis of such events but this is ordinarily done to avoid multiplicity of proceedings or when the original relief claimed has, by reason of change in the circumstances, become inappropriate and not when the plaintiff's suit would be wholly displaced by the proposed amendment (see Steward v. The North Metropolitan Tramways Company, (1885) 16 QBD 178) and a fresh suit by him would be so barred by limitation.'

The above enunciation of law made by the Supreme Court makes it crystal clear that the rights of the parties in the instant case had to be decided in accordance with the provisions of the Old Act and not the New.

10. Coming to the merits, the submission made by the counsel for the petitioner was that the learned Additional Dis-trick Judge committed an error in holding that the need of the petitioner was not genuine as he had sufficient accommodation in his possession. He urged that the said finding of the learned Additional District Judge is erroneous and on a correct appraisal of the evidence, the District Judge should have found that the need of the petitioner was not only bona fide but was greater than that of respondent No. 3. We do not find any substance in this submission of the learned counsel for the petitioner. The legislature has imposed a restriction upon the jurisdiction of the Court to pass a decree for ejectment against a tenant. Such a decree, however, can be passed only when one of the conditions mentioned in Section 3 of the Act has been established. The same could also be filed on the ground of requirement or need of the building by a landlord. But in that event the burden of proving that he genuinely requires the accommodation lies upon the landlord. Whether in a given case that burden has been discharged by a landlord is a question of fact. The same has to be decided on the basis of evidence produced by the parties. Mere assertion on the part of a landlord that he requires for his use, the premises in occupation of his tenant, does not raise any presumption of his genuine requirement. In the instant case, the learned Additional District Judge looking into the entire evidence of the parties as well as the circumstances emergingfrom the record found that the petitioner failed to establish that he genuinely required the premises in question. The finding given by him was that the petitioner had sufficient accommodation for his need. The said finding is one of fact and the High Count has no jurisdiction to set aside the conclusion reached by the learned Additional District Judge on that question of fact.

11. In Babhutmal v. Laxmi Bai : AIR1975SC1297 , the Supreme Court considering the ambit of jurisdiction of the High Court while dealing with an application under Articles 226 and 227 of the Constitution, held that the High Court cannot interfere with the findings of fact recorded by a subordinate court or tribunal. Its function is limited to seeing that the subordinate courts function within the limits of their authority. The Supreme Court held that the High Court cannot correct mere errors of fact by examining the evidence and reappreciating it. The submission made by learned counsel for the petitioner was to the effect that the learned Additional District Judge committed an error in appreciating the evidence given by the petitioner. As it is not within our jurisdiction to reassess the evidence given by the parties in this proceeding, we cannot set aside the finding of the learned Additional District Judge assuming that the argument advanced by the counsel for the parties is correct.

12. We may, however, also indicate that we have examined the findings given by learned Additional District Judge and in our opinion they cannot be called erroneous. In the circumstances and on the materials produced by the parties, it appears to us that the learned Additional District Judge rightly found that the petitioner did not need the premises in the occupation of respondent No, 3 for his personal use.

13. As observed above, the revision filed by the petitioner was to be decided in accordance with the provisions of the Old Act. Accordingly, the argument made by counsel for the petitioner on Explanation (iv) of Section 21 of the New Act, does not arise for consideration in this case. This provision will apply only to an application which is filed under Section 21 of the New Act. The present application 'having been filed under Section 3 of the Old Act, can be decided only in accordance with the provision of the said Act.

14. As in our opinion the question referred by the Division Bench does not arise for consideration in this writ petition, we do not consider it necessary to answer the same.

15. In the result, the writ petition fails and is dismissed with costs payable by the petitioner to respondent No. 3.


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