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Raj Kumar Vij Petitioner v. Hem Raj Singla And Others S
Factual and Procedural Background
The written opinion contains two short procedural entries at the outset: an order in C.M. No. 3412-CII of 2007 in which an order dated 14.2.2007 was recalled and the case restored to its original number; the miscellaneous application (C.M.) was allowed.
The principal matter is C.R. No. 6748 of 2001, a revision petition challenging an order of eviction passed by the learned Rent Controller and affirmed by the appellate authority. The landlord (respondent) had originally filed a petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 seeking eviction of the tenant (petitioner) from premises at Sirhind Mandi on multiple grounds: arrears of rent, material alterations to the premises, and personal necessity. The pleadings led to framing of five issues which included validity of tender, personal necessity, material change in value and utility, maintainability, and relief.
On the pleadings, tender was made and the related issue was not pressed; the landlord did not press the ground of material impairment; the matter proceeded largely on the question of personal necessity. The Rent Controller found the landlord's need bona fide and ordered ejectment. On appeal, the landlord Smt. Shanti Devi died during the pendency. The appellate authority nevertheless affirmed eviction reasoning that the requirement survives death and other family members may continue proceedings. The petitioner challenged that approach in the present revision petition.
Legal Issues Presented
- Whether the tender made by the respondent on the first date of hearing was valid (Issue No. 1 as framed in the pleadings)?
- Whether the premises in dispute was required by the petitioner (landlord) for her personal necessity (Issue No. 1-A)?
- Whether the respondent materially changed the value and utility of the demised premises (Issue No. 2)?
- Whether the petition was maintainable (Issue No. 3)?
- What relief, if any, should follow (Issue No. 4)?
Arguments of the Parties
Petitioner's (tenant's) Arguments
- With the death of Smt. Shanti Devi during the pendency of the appeal, the personal necessity ground for eviction — pleaded specifically for Smt. Shanti Devi — ceased to exist and therefore the eviction order could not be sustained.
- The landlord failed to prove bona fide necessity because Smt. Shanti Devi did not appear in the witness box; the attorney's statement alone could not substitute for her testimony.
- Relied on Kedar Nath Agrawal v. Dhanraji Devi (2004) to support the contention that subsequent events must be considered and that personal necessity must continue until final determination.
- Relied on Janki Vashdeo Bhojwani v. Indusind Bank Ltd. and Vidhyadhar v. Manikrao to argue the limited evidentiary value of a power-of-attorney's testimony and the adverse presumption when a party does not testify.
Respondent's (landlord's) Arguments
- Supported the orders of the Courts below; contended that death of the landlord during pendency does not extinguish the right to eject because other senior family members can continue the proceedings and execute the order.
- Relied on Shakuntala Bai v. Narayan Das (2004) for the proposition that necessity should be assessed as on the date of filing and subsequent events do not affect the rights of ejectment.
- Argued that the power of attorney had appeared in court and supported the case, implying that the attorney's testimony was competent to support the landlord's claim.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Kedar Nath Agrawal (dead) & another v. Dhanraji Devi (dead) by LRs. and another, 2004 (8) SCC 76; 2004 (2) RCR (Rent) 498 (SC) | The court may, and in some circumstances must, take into account subsequent events occurring during pendency of proceedings; while rights are generally determined as of the institution date, changed circumstances may render originally claimed relief inappropriate, necessitate consideration to shorten litigation, or to do complete justice. Also held that ground of personal necessity must continue till final determination. | The court applied this authority to hold that because Smt. Shanti Devi's need was personal to her and other heirs had no intention to move to the suit premises, the subsequent death meant the requirement did not survive and the eviction could not stand. |
| Om Parkash Uppal of Sonepat v. Desh Raj of Sonepat, 1986 (2) RCR (Rent) 320 : 1986 HRR 460 | Support for the proposition that personal necessity must subsist up to final determination and subsequent events are relevant. | The court cited this decision as being of similar effect and supportive of the conclusion that personal necessity must continue; used to reinforce applicability of subsequent-event analysis. |
| Janki Vashdeo Bhojwani & another v. Indusind Bank Ltd. & others, 2005 (1) RCR (Civil) 240 (SC) | Interpretation of Order III, Rules 1 & 2 CPC (referred to in the judgment): a power-of-attorney holder can act under the instrument but generally cannot depose for the principal on matters that only the principal can have personal knowledge of; the attorney's testimony does not substitute for the principal's testimony on personal matters. | The court relied on this principle to hold that because Smt. Shanti Devi did not herself appear and testify, it was not open to the courts below to accept her personal-necessity plea merely on the attorney's statement; this supported setting aside of the eviction order. |
| Vidhyadhar v. Manikrao and another, 1999 (3) SCC 573 (also reported in 1999 (2) Civil Court Cases 91) | When a party to a suit does not appear in the witness-box but states his case on oath otherwise and does not offer to be cross-examined, a presumption may arise that the case set up is not correct. | Invoked to support the view that Shanti Devi's failure to testify raised an adverse inference and weakened the evidentiary basis for finding bona fide necessity. |
| Shakuntala Bai and others v. Narayan Das and others, 2004 (1) RCR (Rent) 580 (SC) | The need of the landlord is to be assessed as on the date of filing; subsequent events during pendency do not necessarily affect rights of ejectment. | The court noted this authority was relied upon by respondents but distinguished it on facts: since the eviction was pleaded specifically for Smt. Shanti Devi (a personal need) and her heirs did not intend to occupy, Shakuntala Bai was held inapplicable to justify maintaining the eviction after her death. |
Court's Reasoning and Analysis
The Court proceeded by first identifying the operative pleadings and the issues framed. It noted that tender had been made so that issue was not pressed and that the only contested issue before the courts below and in the revision was the question of personal necessity (Issue No. 1-A).
The Rent Controller had found bona fide need and ordered ejectment; the appellate authority affirmed that finding despite the death of Smt. Shanti Devi during pendency, reasoning that the requirement subsisted and other senior family members could continue the proceedings.
The revisional court considered the competing authorities. It accepted the tenants' reliance on Kedar Nath Agrawal which recognizes that courts can and should take subsequent events into account in certain circumstances and that the ground of personal necessity must continue until final determination. The court observed the factual matrix: the landlord's case was specifically that the premises was required for Smt. Shanti Devi's personal use after the death of her husband; other legal heirs were settled at Chandigarh and Ludhiana and had shown no intention to relocate to Sirhind.
On that factual basis the court concluded the eviction petition had been presented for the personal need of Smt. Shanti Devi alone and that her death during pendency extinguished the factual foundation for the eviction in the absence of any intention by heirs to occupy. Accordingly the court found the Kedar Nath principle applicable and distinguished the authority relied on by respondents (Shakuntala Bai) as inapplicable on the facts.
The court further analyzed the evidentiary position: Smt. Shanti Devi did not appear in the witness-box. Relying on Janki Vashdeo Bhojwani (and the explanation of Order III Rules 1 & 2 CPC) and Vidhyadhar, the court held that the attorney's deposition could not substitute for the landlady's own testimony on her personal need and that the failure to put the landlady in the witness-box supported adverse inference. On this independent evidentiary basis the court concluded the case for bona fide necessity was not proved.
Combining the legal principle that personal necessity must subsist until final determination with the factual finding that the need was personal to the deceased landlady and was not supported by her own testimony, the court found no merit in the orders of the lower authorities and allowed the revision.
Holding and Implications
Holding: The revision petition is allowed; the orders passed by the learned Rent Controller and the appellate authority are set aside and the petition under Section 13 of the East Punjab Urban Rent Restriction Act is dismissed. (The opinion concludes: "Petition allowed.")
Implications:
- Direct effect: The eviction order against the petitioner (tenant) has been vacated and the Section 13 petition seeking eviction is dismissed, restoring the tenant's position with respect to possession.
- The Court based its decision on two linked points — (i) the requirement for personal necessity must subsist until final determination and (ii) the absence of the landlady's own testimony meant the claimed bona fide necessity was not sufficiently proved. The court applied existing Supreme Court authorities to these propositions.
- No new legal precedent or rule of law is articulated beyond the court's application and reconciliation of existing authorities to the facts of this case; the decision resolves the parties' rights in this matter without purporting to lay down novel law.
Vinod K. Sharma, J. — C.M No. 3412-CII of 2007
For the reasons stated in the application, the order dated 14.2.2007 is recalled and the case is restored to its original number.
C.M stands allowed.
C.R No. 6748 of 2001
The present revision petition has been filed against the order of eviction passed by the learned Rent Controller and affirmed by the learned appellate authority.
2. The landlord respondent had filed a petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as ‘the Act’) for eviction of the petitioner from the premises situated at Sirhind Mandi, Tehsil and District Fatehgarh Sahib. The case set up by the respondent-landlord was that petitioner was tenant in a portion of the house on a monthly rent of Rs. 100/- (Rs. One hundred only) and the tenant was in arrears of rent. It was also claimed that the petitioner tenant had made material alterations in the tenanted premises. A ground of personal necessity was also taken. The application was contested and on the pleadings of the parties, the following issues were framed :—
1. Whether the tender made by the respondent on the first date of hearing is not valid? OPA
1-A. Whether the premises in dispute is required to the petitioner for her personal necessity? OPA
2.. Whether the respondent has materially changed the value and utility of the demised premises? OPP
3. Whether the petition is not maintainable? OPR
4. Relief.
3. As tender having been made, issue No. 1 was not pressed whereas landlord respondent did not press eviction on the ground of material impairment of value and utility of the demised premises. The case was contested only on issue No. 1-A. The learned Rent Controller found the need to be bona fide and ordered ejectment of the petitioner from the premises in dispute. The petitioner went in appeal before the appellate authority. During the pendency of the appeal Smt. Shanti Devi landlord of the premises, for whom premises was sought, died. The petitioner, therefore, contend that due to the subsequent event the order of ejectment passed against the petitioner is not sustainable. However, the said plea was rejected by the learned appellate authority for the reason that by the death of landlord during the pendency of the petition the requirement does not cease to exist and other senior members of the family can continue the proceedings and execute the order of ejectment and take possession from the tenant. The Court also took note of the fact that no party could be given benefit for the delay on account of proceedings in the Court to give benefit to one of the party. The contention of the learned counsel for the petitioner that the landlord had failed to prove even bona fide requirement, was also rejected. The primary ground for that was that it was for the landlord to decide as to how to she has to live and not for the tenant or the Court to form its opinion. The learned counsel appearing on behalf of the petitioner has challenged the order passed by the learned Rent Controller and affirmed by the appellate Authority primarily on the ground that the authorities below have failed to take into consideration the subsequent events. The contention of the learned counsel for the petitioner is that eviction (petition) was filed for personal requirement of Smt. Shanti Devi alone and not for other family members and thus with the death of Smt. Shanti Devi the purpose of seeking eviction was lost. In support of this contention he has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Kedar Nath Agrawal (dead) and another v. Dhanraji Devi (dead) by LRs. and another, 2004 (2) RCR (Rent) 498 (SC) : 2004 (8) SCC 76, wherein it has been held that :—
“13. The question then remains as to effect of subsequent events. It is not in dispute between the parties that during the pendency of the writ petition before the High Court, both the applicants died and their three daughters were brought on record. It is also not in dispute that all the three daughters are married and they are at their marital homes with their in-laws. In view of the said fact an argument was advanced on behalf of the tenants before the High Court that the said circumstance was an eloquent one and must be taken into account which had occurred during the pendency of the proceedings which would affect the final outcome. According to the tenants, in view of death of both the applicants, the requirement as pleaded by the applicants in the application did not survive and the application was liable to be rejected. It was the power and the duty of the High Court to take into account subsequent events which emerged during the pendency of the writ petition and pass an appropriate order taking into consideration such development. In support of the said contention, reliance was placed by the learned counsel on several decisions of this Court.”
“16. In our opinion, by not taking into account the subsequent event, the High Court has committed an error of law and also an error of jurisdiction. In our judgment, the law is well settled on the point, and it is this : the basic rule is that the rights of the parties should be determined on the basis of the date of institution of the suit or proceeding and the suit/action should be tried at all stages on the cause of action as it existed at the commencement of the suit/action. This, however, does not mean that events happening after institution of a suit/proceeding, cannot be considered at all. It is the power and duty of the Court to consider changed circumstances. A court of law may take into account subsequent events inter alia in the following circumstances :
(i) the relief claimed originally has by reason of subsequent change of circumstances become inappropriate; or
(ii) it is necessary to take notice of subsequent events in order to shorten litigation; or
(iii) it is necessary to do so in order to do complete justice between the parties.”
4. In this very judgment the Hon'ble Supreme Court has been pleased to lay down that ground for personal necessity must continue to exist till the final determination of the case. He has further placed reliance on the judgment of this Court in the case of Om Parkash Uppal of Sonepat v. Desh Raj of Sonepat, 1986 (2) RCR (Rent) 320 : 1986 HRR 460, which is to the similar effect.
5. The learned counsel for the petitioner further argued that in the present case the respondent-landlord had failed to prove the bona fide necessity for the reason that the landlady had failed to appear in the witness box and, therefore, the evidence of the attorney qua her personal need could not be taken into consideration. In support of this contention he has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Janki Vashdeo Bhojwani and another v. Indusind Bank Ltd. and others, 2005 (1) RCR (Civil) 240 (SC) : 2005 (2) Civil Court Cases 324 (SC), wherein the Hon'ble Supreme Court has been pleased to lay down as under :—
“12. Order III, Rules 1 and 2 Cr.P.C, empowers the holder of power of attorney to “act” on behalf of the principal. In our view the word “acts” employed in Order III, Rules 1 and 2 CPC, confines only in respect of “acts” done by the power of attorney holder in exercise of power granted by the instrument. The term “acts” would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some “acts” in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined.”
“14. Apart from what has been stated, this Court in the case of Vidhyadhar v. Manikrao and another, 1999 (2) Civil Court Cases 91 (SC) : 1999 (1) Apex Court Journal 438 (SC) : 1999 (3) SCC 573 observed at page 583 SCC that “where a party to the suit does not appear in the witness-box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct.”
6. The learned counsel appearing on behalf of the respondents, however, has supported the order passed by the learned Courts below. The learned counsel for the respondent placed reliance on the judgment of the Hon'ble Supreme Court in the case of Shakuntala Bai and others v. Narayan Das and others, 2004 (1) RCR (Rent) 580 (SC) : 2004 (2) HRR 5 to contend that the need of the landlord is to be seen on the date of filing of suit and the subsequent events have no effect on the rights of ejectment and, thus, according to the learned counsel for the petitioner once an order of eviction was passed the same cannot be set aside on the subsequent event.
7. The learned counsel for the respondent further argued that the power of attorney of the landlady had appeared in the Court and supported the case and, therefore, no fault cannot be found with the findings recorded by the learned Courts below.
8. After hearing learned counsel for the parties, I find no force in the contention raised by the learned counsel for the respondents. In the present case the case set up by the landlady was that the premises was required for her own personal use and occupation as her husband was stated to have died. It was also proved on record that the other legal heirs of Smt. Shanti Devi were settled at Chandigarh and Ludhiana and had not shown any intention to shift to Sirhind. So, the case set up was for her need and not for the need of other family members and, therefore, the judgment of the Hon'ble Supreme Court in the case of Kedar Nath Agrawal (dead) and another v. Dhanraji Devi (dead) by LRs. and another (supra) would be applicable to the facts of the present case and the judgment of the Hon'ble Supreme Court relied upon by the learned counsel for the respondents in the case of Shakuntala Bai and others v. Narayan Das and others (supra) would not be applicable as in the present case legal heirs would not be entitled to maintain the order of eviction for their personal need. Even on other ground the order deserves to be set aside as, Shanti Devi had not appeared in the witness box in support of her case of bona fide requirement. It was not open to the Court to accept her plea merely on the statement of the attorney. Thus, it is not a case of bona fide necessity.
Consequently, this revision is allowed, the orders passed by the learned Courts below are set aside and the petition under Section 13 of the East Punjab Urban Rent Restriction Act is dismissed.
Petition allowed.
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