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Miss Bedlani Vs. A. Hoogewerfe and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberSecond Appeal No. 142 of 1973
Judge
Reported inAIR1975Raj153
ActsCode of Civil Procedure (CPC) , 1908 - Sections 100-101 - Order 41, Rule 23
AppellantMiss Bedlani
RespondentA. Hoogewerfe and ors.
Appellant Advocate P.C. Mathur, Adv.
Respondent Advocate C.K. Garg, Adv.
Cases ReferredShikbarchand v. D. J. P. Karinisabha
Excerpt:
- - 1 as well as plaintiff no. pukh raj, decided on 9-8-1965, (raj), it was held that in a case like the present, subsequent circumstances in the interest of justice could be taken into account to shorten the course of litigation. these cases are where the court finds that because of altered circumstances like devolution of interest it is necessary to shorten litigation. ' 12. thus, it cannot be laid down as a hard and fast rule that under no circumstances subsequent events taking place during the pendency of second appeal in a case like the present can be taken into consideration......case, the plaintiff had sold away the suit property during the pendency of the second appeal. the learned judge held that if a change of this character took place after the commencement of the litigation, then it will be in consonance with justice to permit the facts to be brought on record and to decide the matter in light of such facts. in another case second appeal no. 257 of 1965, dhingarmal v. pukh raj, decided on 9-8-1965, (raj), it was held that in a case like the present, subsequent circumstances in the interest of justice could be taken into account to shorten the course of litigation. in that case, some additional accommodation had admittedly fallen vacant during the pendency of the first appeal, and it was held that this circumstance can be taken into consideration.8. in.....
Judgment:

C.M. Lodha, J.

1. This is a defendant-tenant's second appeal arising out of a suit for ejectment with respect to a portion of plaintiff-respondents' house, situated in the city of Ajmer. The plaintiff-respondents No. 1 Howngewerfe is brother, and plaintiffs-respondents Nos. 2 and 3 are sisters. Plaintiff No. 1 as well as plaintiff No. 3 are married. Plaintiff No. 1 has five children, and plaintiff No. 3 has one daughter. They are joint owners of the property in dispute. The plaintiff's case is that the. respondent-plaintiff No. 3 used to live at Mahu with her husband when the latter was posted there as a Railway Engine Driver, and since he had retired from service, the premises in question were required by the plaintiffs for residence of respondent No, 3, and her family.

2. The defendant denied the suit, and pleaded that there was enough accommodation already available with the plaintiffs, and the suit had been instituted with a motive to increase the rent.

3. After recording the evidence produced by the parties, the trial Court decreed the suit, and on appeal by the defendant the learned Civil Judge, Ajmer affirmed the judgment and decree by the trial Court. Hence, this second appeal.

4. A preliminary objection has been raised by the learned counsel for the plaintiff-respondents that the question of bona fide and reasonable necessity answered by the Courts below in favour of the respondents is a question of fact which cannot be agitated in second appeal; in support of this contention he has relied upon Mattulal v. Radhe Lal, AIR 1974 SC 1596.

5. In order to meet the preliminary objection the learned counsel for the appellant has submitted that the finding arrived at by the learned Addl. Civil Judge on the question of personal necessity is vitiated as it is based on unwarranted assumptions, and that the case has not been examined from correct angle regarding burden of proof. He has also contended that after filing of this appeal, the plaintiffs have acquired possession of one big room, one small room, one varandah in front of both the rooms, one kitchen, one bath and one latrine from another tenant Sujan and hence in case it is held that the accommodation in possession of the plaintiffs on the date of the suit was insufficient, then too deficiency, if any, has been adequately made up in view of this subsequent event which may be taken into consideration.

6. I would first take up the question whether the subsequent event relied upon by the appellant can be taken into consideration? During the pendency of this appeal on 22-1-1974, the appellant made an application supported by her affidavit that Sujan another tenant had vacated the premises in his occupation in November, 1973, as a result of which the plaintiff has come into possession of two rooms, one varandah, a kitchen, a bath-room and a latrine. The plaintiff No. 3 in her reply admitted that the accommodation that had fallen vacant consisted of one room, measuring 25 1/2 x 16 1/2', and a varandah measuring 25 1/2' x 7', and that the varandah was being used as a kitchen and a bath. Thus, in face of this reply there is no room for doubt that the plaintiff has got possession of one more room, and a varandah during the pendency of this appeal.

7. Learned counsel for the respondent, however, strenuously contended on the basis of Pammandas v. Mst. Lachmi Bai, 1962 Raj LW 629 = (AIR 1963 Raj 35) that the proper way to decide the question of personal necessity in such a case would be to see whether the plaintiffs stood in bona fide and reasonable necessity to occupy the suit premises at the date of the suit, at the most, while the matter was being investigated in the trial Court and the circumstances which have admittedly arisen after the second appeal was filed in this Court cannot be taken into consideration. On the other hand, learned counsel for the appellant invited my attention to two other single bench decisions of this Court, where, in an ejectment suit by a landlord against his tenant, subsequent events which had taken place during the pendency of the second appeal were taken into consideration. One is Permanand v. Abdul Kadir, (1973) 5 Ren CJ 500 = (AIR 1973 Raj 303).

In that case, the plaintiff had sold away the suit property during the pendency of the second appeal. The learned Judge held that if a change of this character took place after the commencement of the litigation, then it will be in consonance with justice to permit the facts to be brought on record and to decide the matter in light of such facts. In another case Second Appeal No. 257 of 1965, Dhingarmal v. Pukh Raj, decided on 9-8-1965, (Raj), it was held that in a case like the present, subsequent circumstances in the interest of justice could be taken into account to shorten the course of litigation. In that case, some additional accommodation had admittedly fallen vacant during the pendency of the first appeal, and it was held that this circumstance can be taken into consideration.

8. In Narasimha v. Yellappa, AIR 1973 Mys 317 the trial Court passed decree for eviction, and the plaintiff on appeal to the District Judge tried to show that during the pendency of the appeal the landlord leased out the shop premises held in his occupation, and thus the need of the landlord no longer subsisted; and, therefore, he should be nonsuited. The learned District Judge refused to act upon this ground, which, in substance, was to the effect that events subsequent to the decree made by the trial Court could not be made the basis of setting aside the decree. It was held that the District Judge's refusal to consider the additional evidence was erroneous.

9. In Pokrakutty v. A., Mammad, AIR 1954 Mad 381 which was a case under the Madras Buildings (Lease and Rent Control) Act, learned Judge relied on a number of cases of the Bombay High Court, namely : AIR 1922 Bom 109; AIR 1929 Bom 337; AIR 1925 Bom 122; (1901) 3 Bom LR 227; (1881) ILR 6 Bom 113 and AIR 1921 Bom 34 and came to the conclusion that a Court can take notice of the events that have happened since the institution of the suit, and mould its decree according to the circumstances as they stand at the tune the decree is made.

10. In M. Laxmi & Co. v. A. R. Deshpande, AIR 1973 SC 171 their Lordships were pleased to observe:

'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 to preserve rights of both the parties and to subserve the ends of justice.....'

11. Again in Shikbarchand v. D. J. P. Karinisabha, AIR 1974 SC 1178 their Lordships held :

'Ordinarily, a suit is tried in all its stages on the cause of action as it existed on the date of its institution. But it is open to a Court (including a Court of appeal) to take notice of events which have happened after the institution of the suit and afford relief to the parties in the changed circumstances where it is shown that the relief claimed originally has (1) by reason of subsequent change of circumstances become inappropriate; or (2) where it is necessary to take notice of the changed circumstances in order to shorten the litigation, or (3) to do complete justice between the parties.'

12. Thus, it cannot be laid down as a hard and fast rule that under no circumstances subsequent events taking place during the pendency of second appeal in a case like the present can be taken into consideration. Even Modi, J. in 1962 Raj LW 629 = (AIR 1963 Raj 35) did not intend to lay down such an inflexible rule. In my opinion, in an appropriate case it is open to the Court to take notice of the events which have happened since the institution of the suit to do complete justice between the parties and to grant an appropriate relief. There is no gainsaying the fact that the Court called upon to accept and act on additional evidence pertaining to the subsequent events must exercise its discretion with due care and caution, and a party ought to be allowed indulgence only on the basis of reasonably credible material, as otherwise, it may give rise to unnecessary, prolonged and vexatious litigation. However, the Court will be justified in acting upon such subsequent events as are admitted by both the parties, and have a material bearing on the decision of the case. In this view of the matter, I am inclined to hold that the fact that the plaintiffs have obtained possession of one room measuring 25 1/2' x 16 1/2' and one varandah measuring 25 1/2' x 7' from their erstwhile tenant Sujan during the pendency of this appeal can be taken into consideration.

13. I may now turn to the findings of the learned Addl. Civil Judge. But before I do that I wish to point out that there is nothing on the record that partition has taken place among the plaintiffs, or that any apartment in possession of one of them cannot be used by another. On the other hand, it is clear from their conduct that they have been treating themselves as one unit, and have jointly filed suits for ejectment against other tenants in respect of other portions of the same house. For example, they filed a suit against Mrs. Fernandese for ejectment on the ground that the accommodation in their possession was not sufficient. So also they filed another suit against George D-Crouze on the same ground.

14. The family of the plaintiff No. 1 consists of himself, Ms wife, and five children. Plaintiff No. 2 is unmarried. Thus, so far as the plaintiffs Nos. 1 and 2 are concerned, they are in all 8 members including 3 minor children. The family of the plaintiff No. 3, as stated above, consists of herself, her husband, and a daughter. Thus, the plaintiffs family consists of two married couples, one unmarried sister, one unmarried daughter of plaintiff No. 3; and five unmarried sons and daughters of plaintiff No. 1 -- in all eleven members. It is further clear from the judgment of the learned Addl. Civil Judge that there are three sets of accommodation in possession of the plaintiffs. One set of accommodation which was previously in occupation of the tenant Mrs. Fernandese has been described by the learned Addl. Civil Judge as first set of accommodation. It consists of two big rooms measuring 14' x 20' and 14' x 15' respectively, two medium size rooms measuring 8' x 12' and 8' x 8' respectively. One varandah converted into room measuring 8' x 12', a godown measuring 8' x 8' besides a kitchen and a bath. The learned counsel for the appellant has further pointed out that this set also consists of varandah measuring 7' x 21'. He invited my attention to Ex. A1 copy of the plaint in the suit filed by the plaintiff against Fernandese. This is correct. The other set of accommodation admittedly in possession of the plaintiffs which the learned Judge has described as third set and which they got vacated from George D Crouze consists of two rooms, measuring 14' x 15' and 8' x 12' respectively, a closed varandah measuring 14' x 7', a toilet measuring 8' x 12' besides one kitchen, one bath room and a godown.

15. The learned Judge has observed that the first and third sets of accommodation are required reasonably and bona fide for the plaintiffs Nos. 1 & 2, another set of accommodation, which was formerly a motor-garage is not suitable for the plaintiff No. 3. He has further observed that the respondents are Christians to whom the joint family system is a foreign institution, and in this age of great transformation in the field of socio-economic relationship no person with head on his shoulders can expect two families consisting of a number of children to live with peace under one and the same roof. These observations, in my opinion, are wholly irrelevant, and extraneous. It is not the plaintiff's case that all the three of them are living separately, or, any one of them is in exclusive possession of any of the apartments, nor it is their case that the set of accommodation described as first and third are reasonably and bona fide required by plaintiffs No. 1 and 2 only. The learned Additional Civil Judge has dealt with the case as if the only accommodation available for plaintiff No. 3 is the second set of accommodation consisting of two small rooms and one varandah carved out of a motor-garage. Thus, the case has been dealt by the learned Additional Civil Judge wholly from a wrong angle. It is not the case of the respondent No. 3 that none of the apartments mentioned under sets of accommodation Nos. 1 and 3 could be available for her, nor it is her case that she would live separately from the plaintiffs Nos. 1 and 2, and that plaintiff Nos. 1 and 2 would exclusively occupy the first and third sets of accommodation. Plaintiff No. 1 who has appeared in evidence as P. W. 2, has stated that the apartments which were in the occupation of D-Crouze would be required for his children and his unmarried sister, namely respondent No. 2. It is admitted by the plaintiff No. 1 in his statement that in 1962 they got the rent of the defendant increased from 35/- to 43.75, and when Mrs. Fernandese did not increase the rent they filed suit against her for ejectment which was decreed. Another tenant D-Crouze also met the same fate, though the suit against him was filed simultaneously with the present suit. It is also borne out from the record that after getting the premises vacated from Mrs. Fernandese, the plaintiff shifted to those premises and rented out the premises which were previously in their possession to Surjan, and another person. These facts have not at all been noticed by the learned Addl. Civil Judge.

16. The learned counsel for the appellant has strenuously argued that the burden of proof lay on the plaintiffs to show that the accommodation already in their possession was insufficient. It is urged that their conduct indicates that they have no necessity for the suit premises and want to get the same vacated with an ulterior motive.

17. The main question, therefore, to which the learned Addl. Civil Judge ought to have addressed himself was whether the accommodation consisting of the three sets described by him was inadequate for the plaintiffs, and they reasonably and bona fide required the premises in question for their own use. However, the learned Addl. Civil Judge did not look at the case from this angle at all, and recorded his finding on extraneous considerations, and on matters not pleaded by the plaintiffs.

18. Since the case has not been decided from a correct perspective after taking into consideration all the relevant facts and circumstances of the case, I think, the proper course would be to send the case back to the first appellate Court with a direction to decide it afresh after keeping in view the various points mentioned above. He will also take into consideration the additional accommodation which has fallen vacant during the pendency of this appeal to which reference has been made in the earlier part of this judgment.

19. In the result, I allow this appeal in part, set aside the judgment and decree by the learned Additional Civil Judge, Ajmer dated 20-1-1973, and remand the case to him with a direction to decide the appeal afresh in accordance with law. Parities are left to bear their own costs of this appeal.


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