S. Nainar Sundaram, J.
1. In this revision, the tenant within the meaning of Tamil Nadu Buildings (Lease and Rent Control) Act XVIII of 1960, hereinafter referred to as the Act, is the petitioner. The respondent herein is the landlord within the meaning of the Act, The landlord sought the eviction of the tenant under Section 10(3)(a)(iii) of the Act on the ground that he required the premises in question, which is non-residential, for the purpose of the business which he is carrying on in a non-residential building not of his own. n spite of the contest by the tenant, the Controller found a warrant to accept the case of the landlord and ordered eviction. The tenant appealed to the appellate authority and the appellate authority did not find a warrant to disturb the order of the Controller and dismissed the appeal. Hence this revision.
2. The findings on the relevant aspects by the two forums below are factual and are concurrent. Realising the limitations of this Court to interfere with the concurrent findings of fact in revision, Mr. Srinivasan, learned Counsel for the tenant, pressed for interference in revision by adverting to a subsequent event, after the passing of the orders by ths appellate authority. This subsequent event has arisen this way. The premises in question in the present revision in Door No. 277, Gandhi Road, Kancheepuram. The tenant has sworn to an affidavit on 9th November, 1982, stating that the landlord obtained an order of eviction against the tenant in occupation of another premises, Door No. 277, Gandhi Road, Kancheepuram, and has taken delivery of the said premises in execution last month. The landlord has filed a counter affidavit admitting the fact that he has taken delivery of the other premises, Door No. 277, Gandhi Road, but would state that such an event, assuming it is a subsequent one, has not altered the situation and cannot militate against the bona fide requirement of the landlord. Before adverting to the question as to how far the subsequent event has affected the claim of the landlord for possesion of the premises in question for his bona fide requirement Mr. R. Sundaravaradan, learned Counsel for the landlord, wants to stultify the very consideration of the question at the threshold itself by stating that the right to relief must be judged on facts existing on the date of the institution of the proceedings for eviction and the consideration of subsequent events should not be resorted to, to negative the claim of the landlord as they stood but stressed by the facts existing on the date of the initiation of the eviction proceedings. As against this, Mr. M. Srinivasan, learned Counsel for the tenant, would urge that the subsequent event has a fundamental impact on the right of the landlord to have the relief claimed by him and this Court should take cognizance of the subsequent event and mould the reliefs accordingly. Both the counsel relied on case law. Hence it has become incumbent upon this Court to scrutinise them, spell out the principle applicable and adopt the same.
3. The ordinary rule is, the decree is a suit or proceeding should accord with the rights of the parties as they stood on the date of the commencement of the Us. But, where it is demonstrated that by virtue of subsequent events or change in circumstances during the pendency of the lis, the warrant for granting the relief claimed originally has been lost, the Court can definitely take note of the altered circumstances and mould the relief in accordance with the circumstances as they stand at the time when the decree is finally made.
4. Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri , is the leading case on the point. In the above case, Gwyer, C.J., referred to the following rule adopted by the Supreme Court of the United States in Patterson v. State of Alabama (1934) 294 U.S. 600 .
We have frequently held that in the exercise of our appellate jurisdiction we have power not only to correct 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.
The learned Chief Justice took note of the fact that that view of the Court's powers was reaffirmed once again in a subsequent case in Minnesota v. National Tea Company (1939) 309 U.S. 551 . In the same decision, Varadachari, J. dealt with this aspect in the following language:
it is also on the theory of an appeal being in the nature of a rehearing that the Courts in this country have in numerous cases recognised that in moulding the relief to be granted in a case on appeal, the Court of appeal is entitled to take into account even facts and events which have come into existence after the decree appealed against.
5. P.N. Ramaswami, J., in Pokrakutty v. A.V. Mammad : AIR1954Mad381 observed as follows:
Secondly, although ordinarily the decree or order in a suit or proceeding should accord with the rights of the parties as they stand at the date of its institution, yet where it is shown that the original relief claimed has by reason of subsequent change of circumstances become inappropriate or that it is necessary to base the decision of the Court on the altered circumstances in order to shorten litigation, or to do complete justice between the parties, it incumbent upon a Court of Justice to take notice of events which have happened since the institution of the suit and to mould its decree according to the circumstances as they stand at the time the decree is made.
6. In Narayan Persad v. Sona Bair (1962) 2 An.W.R. 95, Gopal Rao Ekbote, J., pointed to the dictum in the following terms:
It is true that the plaintiff must have a valid cause of action at the date of the institution of the suit and that the Court must shape its decree in accordance with that cause of action, but during the pendency of the case circumstances often change and the court in a fit case is entitled to take such change into consideration and shape its decree in the light of ths altered circumstances If the need of the landlord has disappeared during the pendency of the litigation, it is obvious that no decree can be passed.
The learned Judge has quoted with approval, the judgment of P. N. Ramaswami, J., in Pokrakutty v. A. V. Mammada : AIR1954Mad381 ,
7. In Surinder Kumar v. Gian Chand : 1SCR548 , it was pointed out that in deciding the appeal by the Supreme Court had to take the circumstances as they were at the time when the appeal was being decided and the fact of the grant of the probate which had supervened since the decision under appeal was given must be taken into consideration in deciding the appeal. The Supreme Court referred to the decision of the Federal Court in Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri , for spelling out and following ths ratio regarding the Court's powers to take note of subsequent events.
8. In P. Venkateswarlu v. Motor and General Traders : 3SCR958 , the matter arose under Section 10(3)(a)(iii) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 which is similar to the provision of Section 10(3)(a)(iii) of the Act, The High Court, in revision, took note of certain material events of fatal import to the maintainability of the eviction proceedings which had come to pass subsequently and so it decided to mould the relief in the light of these admitted happenings. The learned Judge of the High Court observed as follows :-
If the fact of the landlord having come into possession during the pendency of the proceedings of Shop No. 2 is to be taken into account, as indeed it must be, then clearly the petition is no longer maintainable under Section 10(3)(a)(iii)of the Act, as the requisite condition for the invoking of that provision has ceased to exist, viz., that the landlord was not occupying a non-residential building in the town.
The Supreme Court held that this finding of legal disability cannot be re-opened and while stating the law on the subject, observed as follows :-.First about the jurisdiction and propriety vis-a-vis circumstances which come into being subsequent to the commencement of the proceedings. It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process If a fact, arising after the lis has come to Court which has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fairplay is violated, with a view to promote substantial justice, subject of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial Court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion even as situations for applications of this equitable rule are myriad. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the Court can, and in many cases must, take cautious cognizance of events and developments subsequent to the institution of the proceedings provided the rules of fairness to both sides are scrupulously obeyed. On both occasions the High Court, in revision correctly took this view. The later recovery of another accommodation by the landlord, during the pendency of the case, has as the High Court twice pointed out, a material bearing on the right to evict, in view of the inhibition written into Section 10(3)(a)(iii) itself. We are nor disposed to disturb this approach in law or finding of fact.
Of course, in that case, there was a scope for scrutinizing the matter afresh in view of the subsequent events and in this view, the Supreme Court remitted the matter back to the Controller.
9. In Rameshwar v. Jot Ram : 1SCR847 , the question again came up for consideration and after analysing the proposition, the Suprerme Court affirmed that 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. It was pointed out that the decision in Venkateswarlu v. Motor and General Traders : 3SCR958 , read in its statutory setting, falls in this category.
10. In M.N. Quasim v. Manahar Lal : 3SCR367 , the Supreme Court dealt with an eviction suit on the ground of bona fide requirement of one of the co-owners under the relevant provision of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, and the Supreme Court opined that while an appeal against a decree for eviction is pending, the fact that the plaintiff/co-owner lost interest in the property as a result of a decree in a partition suit can be taken note of by the appellate Court as a subsequent event to mould the reliefs accordingly, the reason being the appeal is the continuation of a suit and the appellate Court is competent to take notice of the subsequent event, viz., cessation or extinguishment of the landlord's interest in the building.
11. In Hasmat Raj v. Ragunath Prasad : 3SCR605 : during the pendency of a second appeal arising out of a suit for eviction of the tenant on the ground that the premises was bona fide required by the landlord for starling his business, the tenant pointed out that the landlord had acquired possession of another premises in the building in question, which would meet the landlord's need for the business and the Supreme Court held that the finding given by ignoring the admitted position would not be binding in appeal under Article 136 of the Constitution of India. The following passage brings out succinctly the rule that should govern the Court's power to take note of subsequent events:.If a landlord bona fide requires possession of a premises let for residential purpose for his own use he can sue and obtain possession. He is equally entitled to obtain possession of the premises left for non-residential purposes if he wants to continue or start his business If he commences the proceedings for eviction on the ground of personal requirement he must be able to allege and show the requirement on the date of initiation of action in the Court which would be his cause of action. But that is not sufficient. This requirement must continue throughout the progress of the litigation and must exist on the date of the decree and when we say decree we mean the decree of the final Court. Any other view would defend the beneficial provisions of a welfare legislation like the Rent Restriction Act. If the landlord is able to show his requirement when the action is commenced and the requirement continued till the date of the decree of the Trial Court and thereafter during the pendency of the appeal by the tenant if the landlord comes in possession of the premises sufficient satisfy his requirement, on the view taken by the High Court the tenant should be able to show that the subsequent events disentitled the plaintiff, on the only ground that here is tenant against whom a decree or order for eviction has been passed and no additional evidence was admissible to take note subsequent events. When the statutory right of appeal is conferred against the decree or the order and once in exercise of the right an appeal is preferred the decree or order ceases to be final. What the definition of 'tenant' excludes from its operation is the person against whom the decree or order for eviction is made and the decree or order has become final in the sense that it is not open to further adjudication by a Court or hierarchy of Courts. An appeal is a continuation of suit. Therefore, a tenant against whom a decree for eviction is passed by Trial Court does not lose protection if he files the appeal because if appeal is allowed the umbrella of statutory protection shields him. Therefore it is indisputable that the decree or order for eviction referred to in the definition of tenant mast mean final decree or final order of eviction. Once an appeal against decree or order of eviction is preferred the appeal being a continuation of suit, the landlord's need must be shown to continue to exist at the appellate stage. If the tenant is in a position to show that the need or requirement no more exists because of subsequent events, it would be open to him to point out such events and the Court including the appellate Court has to examine, evaluate and adjudicate the same. Otherwise the landlord would derive an unfair advantage. An illustration would clarify that we want to convey. A landlord was in a position to show that he needed possession of demised premises on the date of the suit as well as on the date of the decree of the trial Court. When the matter war pending in appeal at the instance of the tenant, the landlord built a house or bungalow which would fully satisfy his requirement. If this subsequent event is taken into consideration, the landlord would have to be non-suited. Can the Court shut its eyes and evict the tenant? Such is neither the spirit nor intendment of the Rent Restriction Act which was enacted to fetter the unfettered right of re-entry. Therefore when an action is brought by the landlord under the Rent Restriction Act for eviction on the ground of personal requirement, his need must not only be shown to exist at the date of the suit, but must exist on the date of the appellate decree, or the date when a higher Court deals with the matter. During the progress and passage of proceeding from Court to Court, if subsequent events occur which if noticed would non suit the plaintiff, the Court has to examine and evaluate the same and mould the decree accordingly. This position is no more in controversy in view of a decision of this Court in Pasupuleti Venkateswarlu : 3SCR958 .
12. The rule being thus laid down by the Supreme Court, there is no escape from it and it shall be binding on all Courts within the territory of India, as laid down by Article 141 of the Constitution of India, unless there is a possibility to distinguish it on facts or on difference in the language of the concerned provision of law. No such contingency to make such a distinction has arisen in the instant case.
13. Mr. R. Sundaravaradan, learned Counsel for the landlord, draws my attention to three pronouncements of three learned single Judges of this Court, to advance the proposition that while granting reliefs under the Act, the Court is not bound to take note of the subsequent events. The first pronouncement is that of Ismail, J., as he then was, in Excel Lables and Ors. v. Simson Knitting Company C.R.P. Nos 312 and 318 to 320 of 1977, Order dated 24th February, 1978. The attention of the learned Judge was drawn to the judgment of the Supreme Court in P. Venkateswarlu v. Motor and General Traders : 3SCR958 . But the matter seems to have been argued with reference to the language contained in the second proviso to Section 10(3)(a)(iii) of the Act and the learned Judge, opining that the Supreme Court did not expressly consider the language of the said proviso, held that the proviso only lays down that if the landlord had obtained possession of the building under Section 10(3)(a)(iii) of the Act, he will not again be entitled to apply for the relief under the very same provision and declined to countenance the plea with regard to the non maintainability of the petition for eviction on the ground that the landlord obtained possession of another premises after he filed the petition in question. This judgment of the learned single Judge has been followed by Mohan, J, in Arjun and Ors. v. Yeogendrakumar Gupta (1979) T.L.N.J. 464, Ratnam, J., has also fallen in line with the above pronouncements in Peer Mohammed v. Rajamani Bai (1981)2 M.L.J. 170.
14. Obviously, the later pronouncements of the Supreme Court in M. M. Quasim v. Manohar Lal : 3SCR367 , as well as Hasmat Bai v. Raghunath Prasad : 3SCR605 , were not rendered and reported for the purpose of the three learned Judges taking note of the emphatic statement of law by the Supreme Court on the question. Even in P. Venkateswarlu v. Motor and General Traders : 3SCR958 , the consideration was of the relevant provision of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Act, which is similar to the one in the Act, and the Supreme Court pointed out 'The later recovery of another accommodation by the landlord, during the pendency of the case, has a material bearing on the right to evict, in view of the inhibition written into Section 10(3)(a)(in) itself. The inhibition is not one to be gleaned from the proviso alone which has got a separate purpose to serve, as I would presently discuss. However, in Muthiah Asari v. Ramanathan (1982) T.L.N.J. 21, Mohan, J., took note of the subsequent pronouncements of the Supreme Court and opined that his earlier order in Arjun and Ors. v. Yogrendra Kumar Gupta (1979) T.L.N.J. 464, does not reflect the correct view.
Apart from the enlightenment, derived from the cases of the Supreme Court, the language of the provision itself is emphatic and takes the matter outside the sphere of ambiguity. Section 10(3)(a)(iii) of the Act reads as follows:
10. Eviction of tenants
(3)(a). A landlord may, subject to the provisions of Clause (d), apply to the Controller for an order directing the tenant to put the landlord in possession of the building--(iii) in case it is any other non-residential building, if the landlord or any member of his family is not occupying for purposes of a business which he or any member of his family is carrying on, a non-residential building in the city, town or village concerned which is his own.
The relevant proviso thereunder reads as follows:
Provided further that where a landlord has obtained possession of a building under this clause, he shall not be entitled to apply again under this clause--
(ii) in case he has obtained possession of a non-residential building, for possession of another non-residential building of his own.
The right to the remedy for the landlord has got to be spelt out under the statute itself It will depend on the presence or absence of certain basic facts. The Controller will direct the tenant to put the landlord in possession of the building only if the landlord is not occupying for the purposes of business which he is carrying on a non-residential building of his own in the city. The obtaining of an order of eviction before the lowest forum in the hierarchy of the authorities under the Act does not conclude the matter. If there is an appeal to the appellate authority, the order will not become conclusive and final, and scrutiny of the controversy continues, the principle being that an appeal is nothing but a continuation of the initial lis. Equally so, when the matter is taken up by way of statutory revision, no finality is reached unless the revision is disposed of one way or the other and as approved by the Supreme Court in P. Venkateswarlu v. Motor and General Traders : 3SCR958 , the revisional Court can definitely take note of the subsequent events to mould the reliefs accordingly. The inhibition or the fetter for the landlord to seek and obtain eviction of the tenant under the provision is in-built in the provision itself. The proviso has not in any manner cut down or watered down the conditions, without satisfying which neither the landlord could obtain possession of the building nor the Controller could pass an order of eviction. The language of the proviso is clear and it has got a purpose to serve. If, anterior to the riling of the petition, the landlord has obtained possession of a building under the relevant clause, he shall not be entitled to apply again under that clause for possession of another building of his own. The reason is obvious because, by securing possession of a building under that clause, the purpose of the landlord would have got served and he shall not more the Court by invoking the very same provision for the very same purpose This does not mean that the basic facts which are adumbrated in the main provision, the presence of which alone will enable the Controller to grant relief under the statute, cease to exist when the highest Court in the hierarchy of Courts, being seized with the matter renders a decision under that provision and the absence of such basic facts on account of subsequent events can be omitted to be taken note of by the said highest Court
15. With inclination settled to take note of subsequent events and change in circumstances, in deference to the law propounded by the highest Court in the land, I shall now go to the facts which, according to the learned Counsel appearing for the petitioner, has served the purpose of the landlord when he sought the eviction of the tenant from the premises in question. On an analysis of the factual materials which existed from the inception and which formed the basis and the back-ground for the claims of the land lord, I am clear in my mind that the subsequent event of the landlord actually obtaining possession of the other 'premises after orders were passed by the appellate authority has not disturbed the basic facts which justified and even today justify the passing of the orders of eviction under the concerned provision of the Act.
16. To the affidavit sworn to by the tenant, in the present revision, bringing forth to the notice of this Court the so-called subsequent change in the circumstances, the landlord has filed a counter affidavit the material averments in which are found expressed in paragraphs 1 to 3, and they stand extracted as follows:
1. I am the respondent herein, the landlord/petitioner in the lower court. I have obtained an eviction order against the petitioner of the premises No. 276, Gandhi Road, Kancheepuram for my own Beedi business. I have had the affidavit of the petitioner in support of an additional factor read and explained to me in Tamil and I deny the various allegations therein as false except those that are admitted herein. It is true that I have taken delivery of the premises number 277. But on that account the necessity or need to occupy the petition mentioned shop has not ceased. Originally 276 and 277 were one unit and structure ; even to-day factually they are so. Door No. 276 and 277 are covered on the top by single open undivided space. It is useful for drying my beedi manufactures. Further in premises No. 277 beedi will be manufactured and in 276 they will be stocked and sold. Even the excise rules require such separation ; one of the premises without the other is of no utility for my business.
2. In fact eviction proceedings for both buildings were filed together and eviction obtained. The tenant of premises No. 277 appears to have filed a revision and failed. Almost there were close adjournment dates, and almost a joint trial. The joint possession and carrying on of business both manufacture and sale in 276 and 277 is an absolute necessity and need forms and the delivery of 277 cannot and will not whittle down the need, If this petition were to be allowed on the ground of obtaining the next shop in the same unit, it will be absolutely unsuitable and inconvenient for my beedi manufacture and sale business. The space available in both 276 and 277 is absolutely essential for my trade. 3. I am manufacturing beedi in thinnai (Pial) of my residential houses and often the privacy of my household pardhanashin ladies are disturbed when excise officers inspect the same. Further it is in a lane-a residential quarter.
17. The tenant has filed a reply affidavit and the averments therein are cursory in the extreme and paragraphs 2 and 3 read as follows:
2 The averment that Door No. 276 and 277 form one unit and one structure is not correct.
3. It is not correct to say that beedis will be manufactured in one premises and will be stocked and will be sold in the other premises.
18. If there is a warrant to assess afresh by the forums below as to how far the change, made a difference from the point of view of the landlord's need, I would not hesitate to remit the matter back to the appropriate forum below. Such is not the case here. Mr. R. Sundaravaradan, learned Counsel for the landlord, has filed a typed set consisting of copies of the petition in R.C.O.P. No. 44 of 1978 and the counter filed thereto. This proceeding relates to Door No. 276 in the occupation of the tenant and which is the subject-matter of the present revision A copy of the petition in R.C.O.P. No. 43 of 1978 which relates to Door No. 277 has also been disclosed. In the petition in R.C.O.P. No. 44 of 1978, it has been categorically averred that the landlord is carrying on beedi manufacturing business and he requires both the premises to meet the requirements of his business. Paragraph 5 of the said petition runs in the following terms:
5. The petitioner requires the petition mentioned premises bona fide for his own use and occupation to stock the beedi bundles. It will be convenient for him to stock the bundles and also to dry the beedies in the terrace. The petitioner does not own any other premises in this street for stocking purposes as this trade is being carried on by the petitioner and his father for more than a period of 40 years. It is Well known to public. This premises will suit the petitioner's requirement. He owns another premises adjoining to this bearing door No. 277 for which he has filed another application to vacate for running the factory. It is needed for immediate occupation. The petitioner's requirement is a bona fide one.
The tenant's counter is ambiguous and does not specifically controvert the relevant aspects.
19. In the petition in R.C.O.P. No. 43 of 1978, relating to the other premises, Door No. 277, there is an averment about the filing of the application for eviction of the tenant herein from Door No. 276.
20. The facts being what they are, as they stood disclosed at the initiation of the proceedings and as they stand disclosed even to-day, it is impossible to conceive that the landlord obtaining possession of the premises, Door No. 277 has brought about a material change in the circumstances and has altered the basic fact which warranted the passing of an order of eviction. The landlord falt the need to obtain possession of the two door numbers, to serve the needs of his business. The two door numbers are adjoining and abutting each other and it is reasonable to conceive that they would conveniently serve the business needs of the landlord, as coveted by him from the inception. Even taking note of the so-called change in circumstances, I am of the view, that it has not shaken the essential ingredients which justify the passing of an order of eviction and sustaining the same, if already passed. Similar facts were dealt with by Ratnavel Pandian, J., in Ponniah Cheitiar v. S. Rajagopal (1981) T.N.L.J. 377. and the learned Judge found that the landlord sought eviction of both the premises as additional accommodation and the fact that the tenant in one premises suffered the order of eviction and thereby made available the said premises to the landlord would not amount to a change in circumstances, so as to operate as an inhibition to pass and sustain an order of eviction. In the said circumstances, I have no other alternative, but to dismiss the revision. Accordingly, the revision is dismissed, but there will be no order as to costs.
21. At the specific request and plea of the learned Counsel for the tenant petitioner in this revision, the tenant will have there months time from to-day to vacate the premises.