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2016 DIGILAW 1688 (ALL)

Anni Bibi v. Kaish Ali

2016-05-03

SUNITA AGARWAL

body2016
JUDGMENT Mrs. Sunita Agarwal, J. – Heard Sri M. Sarwar Khan, learned counsel for the petitioner and Sri Abhishek learned counsel for the respondent. 2. The present writ petition is directed against the release order passed by the Courts below in proceeding under Section 21(1)(a) of the U.P. Act No. 13 of 1972. Admitted facts of the matter are that the disputed property is a house in which the petitioner was inducted as a tenant. The release application was filed in the year 1993 for the need set up by the landlord that he required the house for himself and his family members. It was stated in the release application that the house at Mohalla Rizvi Khan wherein landlord was living and which belonged to a Waqf was not sufficient for the residence of the landlord and his family member as his brother's family was also residing therein. During the course of time, his sons got married and he needed much larger accommodation. 3. The release application was allowed on 6.4.2005 by the Prescribed Authority, however, in appeal, the matter was remanded on 31.7.2006. Again by order dated 28.4.2007, the Prescribed Authority held the need of the landlord as genuine and bona fide and comparative hardship was also found tilted in favour of the landlord. The appellate court by judgment and order dated 15.4.2009 affirmed the findings of the Prescribed Authority. 4. The present writ petition was filed on 6.5.2010 and an interim order was granted staying the eviction of the petitioner subject to the condition that she deposits the rent @ Rs. 100/- per month w.e.f. May, 2010. 5 The respondent/landlord namely Kaish Ali has put in appearance in the present petition by filing a counter affidavit in the month of August, 2010. 6. It appears that an impleadment application was filed by the petitioner on 12.10.2010 with the assertion that the landlord namely Kaish Ali had executed a sale deed dated 9th July, 2009 with regard to the house in question in favour of Smt. Mobaraka Siddiqui wife of Abdul Ahad Siddiqui, resident of Mohalla Rizvi Khan, Pargana Haveli, Tehsil Sadar, District Jaunpur and therefore, the purchaser having been stepped into the shoes of the landlord was necessary party. It was also stated that the execution application was filed by the landlord on 15.4.2010 but he did not disclose before the executing court or before this Court in the counter affidavit that he had sold the disputed property. 7. The respondent no. 2, who was sought to be impleaded filed a counter affidavit dated 20.2.2011 with the assertion that the registered sale deed dated 9.7.2009 was executed by the landlord namely respondent no. 1 after getting the property released by a judgment and order dated 15.4.2009. The vendor and vendee both filed caveat application but the caveat application of the vendee was not reported. Another counter affidavit dated 21.2.2011 to the impleadment application was filed by Sri Kaish Ali the respondent/landlord stating therein that the disputed accommodation with the land was sold to Smt. Mobaraka Siddiqui as there was no legal impediment in alienating the disputed property. 8. With these admitted facts, the first submission of learned counsel for the petitioner is that the subsequent event of sale of the disputed property renders the need of the landlord in fructuous. The release application was filed with the categorical assertion that the landlord and his family members require the house in question for their residence as the house in which they were living was a small accommodation shared by family members of the brother of the landlord. The subsequent event of execution of sale deed within the period of three months from passing of the release order by the appellate authority showed the intention of the landlord that he got it vacated only for the purpose of alienating it. He never genuinely needed the disputed property for himself or his family members. 9. Submission is that the subsequent events are of such nature that would completely eclipsed the need of the landlord. The release application is, therefore, rendered in fructuous on account of the said subsequent event. The purchaser landlord cannot pursue the case of the applicant/landlord who has parted away his right on 9.7.2009. 10. It was strenuously argued by the learned counsel for the petitioner that the applicant/landlord has not approached this Court with clean hands as in the counter affidavit to the writ petition sworn by the landlord on 16.8.2010, he did not disclose the facts of the execution of the sale deed. 10. It was strenuously argued by the learned counsel for the petitioner that the applicant/landlord has not approached this Court with clean hands as in the counter affidavit to the writ petition sworn by the landlord on 16.8.2010, he did not disclose the facts of the execution of the sale deed. The execution case was also filed after execution of the sale deed and the fact of sale was not brought on record therein also. 11. As soon as the petitioner came to know about this fact he filed impleadment application in October, 2010 to protect his interest in the premises as a tenant. Then in the counter affidavit to the impleadment application, for the first time, the landlord admitted that he had executed the sale deed in favour of Smt. Mobaraka Siddiqui with regard to the disputed property. 12. On the other hand, Sri Abhishek, learned counsel for the respondent/landlord submits that the release application cannot be rendered in fructuous on account of subsequent event of sale of the disputed property. The purchaser landlord who had stepped into the shoes of the applicant/landlord can pursue this release application. It cannot be said that the need of the landlord completely eclipsed with the sale. 13. Reliance is placed upon the judgment of Apex Court in Gaya Prasad v. Pradeep Srivastava, AIR 2001 SC 803 : 2001 (1) ARC 352to submit that the crucial date for deciding as to the bona fides of the requirement of the landlord is the date of his application for eviction. If every subsequent development during the post petition period is to be taken into consideration during long period of litigation, certain events are bound to occur but that would not mean that the need would kept faded out of subsequent developments. 14. The present release application was filed in the year 1993 when the tenant had incurred the liability of eviction. The release application was initially allowed by the Prescribed Authority. On remand again both the courts below found the need of the landlords as genuine and pressing. The release matter has become final with the judgment and order dated 15.4.2009 passed by the appellate court. 15. The executing court had no option but to execute the decree. The release application was initially allowed by the Prescribed Authority. On remand again both the courts below found the need of the landlords as genuine and pressing. The release matter has become final with the judgment and order dated 15.4.2009 passed by the appellate court. 15. The executing court had no option but to execute the decree. The interim order passed in the present writ petition is restricted only to staying the eviction of the petitioner and the effect of eviction decree is not obliterated on account of ex-parte interim protection granted to the tenant. After 15.4.2009 he had no right to occupy the premises in question. On the merits of the release application, no interference can be made and, therefore, there is no force in the pleading of the petitioner that the release application has become in fructuous on account of the sale deed executed on 9.7.2009 i.e. much after the release order was passed by the appellate court. 16. In any case, the subsequent event which has cropped up during the course of long litigation does not go to show that the landlord's requirement is fully satisfied and he cannot pursue the decree or order of eviction passed against the tenant. The reference was made to paragraph 10' of the Apex Court judgment in Gaya Prasad (supra) extracted as under: - "10. We have no doubt that the crucial date for deciding as to the bona fides of the requirement of the landlord is the date of his application for eviction. The antecedent days may perhaps have utility for him to reach the said crucial date of consideration. If every subsequent development during the post petitioner period is to be taken into account for judging the bona fides of he requirement pleaded by the landlord there would perhaps be no end so long as the unfortunate situation in out litigative slow process system subsists. During 23 years after the landlord moved for eviction on the ground that his son needed the building. Neither the landlord nor his son is expected to remain idle without doing any work, lest, joining any new assignment or starting any new work would be at the peril of forfeiting his requirement to occupy the building. It is a stark reality that the longer is the life of the litigation the more would be the number of developments sprouting up during the long interregnum. It is a stark reality that the longer is the life of the litigation the more would be the number of developments sprouting up during the long interregnum. If a young entrepreneur decides to launch a new enterprise and on that ground he or his father seeks eviction of a tenant from the building, the proposed enterprise would not get faded out by subsequent developments during the traditional lengthy longevity of the litigation. His need may get dusted, patina might stick on its surface, nonetheless the need would remain intact. All that is needed is to erase the patina and see the gloss. It is pernicious, and we may say,unjust to shut the door before an application just on the eve of his reaching the final. After passing through all the previous levels of the litigation, merely on the ground that certain developments occurred pendent lite, because the opposite party succeeded in prolonging the matter for such unduly long period." 17. Having heard learned counsel for the parties and perused the record. In the light of the arguments, the sole question which is required to be determined by this Court is whether with the execution of the sale deed dated 9.7.2009 the need propounded by the landlord has been completely eclipsed. 18. To answer this question by application of legal principles in the facts of the case, it would be apt to refer to the judgments of Apex Court which laid down the preposition relevant to the point in issue. 19. The learned counsel for the petitioner has relied upon the judgment in Pasupuleti Venkateswarlu v. The Motor & General Traders, AIR 1975 SC 1409 , wherein Justice V.R. Krishna Iyer speaking for the Bench held in paragraph 4' as under: - "4. We feel the submissions devoid of substance. 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. 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 and has a fundamental impact on the right to relief for 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 fair play is violated, with a view to promote substantial justice subject, of course, to the absence of other dis-entitling 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 my raid." It was further observed in the same paragraph as extracted below: - "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 cognisance of events and developments subsequent to the institution of the proceeding 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)(iii) itself. We are not disposed to disturb this approach in law or finding of fact." 20. 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)(iii) itself. We are not disposed to disturb this approach in law or finding of fact." 20. In Ramesh Kumar v. Kesho Ram, AIR 1992 SC 700 , it was held that wherever subsequent events of fact or law occur which have a material bearing on the entitlement of the parties or have material bearing on the moulding of the relief, the Court is not precluded from taking a "cautious cognisance" of the subsequent changes of fact and law to mould the relief. 21. Referring to the judgment in Pasupuleti Venkateswarlu (supra), it was held that though the rights and obligations of the parties in any litigation are adjudicated at the time of commencement of the lis but the subsequent events if brought on record and proved shall be considered by the court to mould the relief. 22. Same principle has been reiterated in Hasmat Rai and another v. Raghunath Prasad, 1981 (3) SCC 103 ; Gaya Prasad (supra). Applying the legal principles extracted above to the facts of the instant case, it would be seen that the landlord who had filed application for release of the disputed house executed a sale deed and has parted with his rights in the suit property on 9.7.2009. With the execution of the sale deed, the need of the applicant/landlord in the suit property had eclipsed. The subsequent purchaser/landlord cannot maintain the execution proceeding on the ground that he had purchased the building after the tenant had incurred liability of being evicted from the said premises. For the requirement of the landlord, in case, he succeeds in establishing his bona fides, it could be said that the tenant incurred the liability of eviction on the date of application. 23. Subsequent sale of the house by the landlord would mean that he no longer requires the said house for his own need. This is a different situation from a case where even on the death of the landlord, where the premises was needed for starting the business by the landlord, the need did not extinguish as there were other members in the family to pursue the business proposal. 24. This is a different situation from a case where even on the death of the landlord, where the premises was needed for starting the business by the landlord, the need did not extinguish as there were other members in the family to pursue the business proposal. 24. In Kamleshwar Prasad v. Pradumanju Agarwal By Lrs., 1997 (4) SCC 413 , it was held by the Apex Court that even if the landlord died during the pendency of the writ petition in the High Court the bona fide need cannot be said to have lapsed as the business can be carried on by his wife or any elder member of the family. 25. This preposition would not available in the present case as the release application herein was filed for the personal need of residence of the landlord and his family which has been eclipsed with the sale of house in question. 26. In view of the above discussion, the reliance placed by the learned counsel for the respondent/landlord upon the judgment of Apex Court in Kameshwar Prasad (supra) and of this court in Kedar Nath Agrawal and another v. District Judge, Ballia and others in Civil Misc. Writ Petition No. 19160 of 1985, decided on 20.8.2007 is misplaced. 27. For all the above reasons, in view of the admitted fact that the landlord had sold the disputed house by means of a registered sale deed, the release application cannot survive. 28. Accordingly the release order dated 28.4.2007 passed by the Prescribed Authority/Civil Judge (S.D.), Jaunpur in P.A. Case No. 13 of 1993 affirmed by judgment and order dated 15.4.2009 passed by the Appellate Court/Additional District Judge, Court No. 6, Jaunpur in P.A. Case No. 1 of 2007 cannot be sustained. 29. The release application is rejected. 30. With the above observations, the writ petition is allowed. Petition allowed.