PASUPULETI VENKATESWARLU versus THE MOTOR & GENERAL TRADERS

PASUPULETI VENKATESW ARLU

THE MOTOR & GENERAL TRADERS March 18, 1975

[A. N. RAY, C.J., K. K. MATHEW AND v. R. KRISHNA IYER, JJ.]

Appellate Jurisdicti'on, exercise of-Court, if can mould reliefs in appeal iy taking into arcount facts subsequent to i11stz'tution of proceedings.

Andhra Pradesh Buildirrgs (Lease, Rent and Eviction) Control Act, 1960, Section 10(3)(iii) (a) a11a (b)-Revis/011 to High Court against order of whole· sale remillal to trial Court-High Court, if can take into account subsequent fact and dismiss the eviction petition also.

The appellant, landlord of large building, had leased out in separate por-tions his building to several tenants. One of such tenants is the respondent. Tho former resolved to start businr:ss in automobile spares and claimed eviction of the respond,~nt by Rent <:ontrol proceedings, under~. 10(3)(iii)(a) and (b) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 19.60. The petition was resiste.rl and the Rent Controller dismissed the petition. Tue appeal by the landlord failed but, in revision, the High Court chose to remand the case to· the appellate authority. The appellate authority, after hearing par· ties, remitted the whole case to the trial Court for fresh disposal in accordance with certain dir~ctions and, after allowing parties to lead evidence. Instead of finishing the case at the trial Court level, the landlord preferred revision to the High Court on the ground that wholesale rcmittal, as agaimt calling for finding on specific point, was illegal. The High Court held that if the fac:t of the landlord having come into possession during the pendency of the proccedingll of Shop No. 2 is to be taken into account, then clearly the petition is no longer maintainabl.e under section 10(3) (iii) of the Act. The inevitable sequel was the dismissal, not only of the civil revision, but also of the eviction petition.

In this appeal by special leave, :.i was contended for the appellants : (i) It was illegal for the High Court to have taken cognisance of subsequent events; and (ii) Once thi: High Court held-as it did-that the appellate tribunal acted illegally in remit ing the whole case to the Rent Controller, it could not go fur-ther to dismiss his whole eviction proceedings.

Allowing the appeal partially,

HELD : (i) For making the light or rei;nedy, claimed by the party just and meaningful as also legally and factuallv in accord with the current realities, the court can, and in many cases must, take cautious cognisance of events and de-velopments 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 la~r recovery of another ac-commodation by the landlord, during the pendency of the case, has as the Hi&l1 Court twice pointed out, mMerial bearing on the right to evict, in view of the inhibition written into s. 10(3)(iii) itself. The High Court was right in taking into consideration the facts which came into being subsequent to the commence-ment of the proceedings. [960 G·H] ·

Lachmeshwar Prasad Shukul v. Kes/iwar Lal Chaudhuri [1940] F.C.R. 85; Patterson v. State of Alabama, 294 U.S. 600, 607 and Mirnesota v. National 1"e« Co. 309 U.S. 551, 555, referred to.

(ii) It is unfair to drive parties to new litigation of unknown duration anJ therefore, in the special circumstances of this case, it is directed that : (a) the revision before the High Court shall stand dismissed; (b) the Rent Controlle1: will take note of the subsequent development disabling the landlord from seeking eviction on whicb there is already an adverse finding by the High Court; (c) the

landlord be allowed to amend his petition if he has case for eviction on any other !egally permissible ground; and (d) the parties be given fair and full op· portunity to file additional pleadings and lead evidence thereon. But the subse· quent event that the petitioner had come by non-residential accommodation of his own in the same town having been found by the High Court, cannot be can-vassed ever again. That finding of legal disability cannot be reopen~d. [961 G-H]

CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 2120 to 2122 of 1972,

Appeals by special leave from the judgment and order dated the 7th April 1972 of the Andhra Pradesh High Court in C.R.P. No. 1576-78 of 1971.

K. S. Ramamurthi, M. S. Narayana Achari and C. S. S. Rao, for the appellant.

K. R. Choudhury and K. Rajendra Chaudhry, for the respondent.

The Judgment of the Court was delivered by

KRISHNA IYER, J.-Once the facts are stated fairly, one is left to wonder what substantial issue of law deserving of adjudication by the Supreme Court survives at all in these appeals. We may straightway proceed to state, with brevity, the case of the appellant presented for our scrutiny and make short shrift of it as it merits little more. The appellant, landlord of large building, had leased out in separate portions his building to several tenants. One of such tenants is the respondent. The former resolved to start business in automo· bile spares and claimed eviction of the respondent by Rent Control pro-ceedings, under s. 10(3) (iii) (a) and (b) of the Andhra Pradesh Build-ings (Lease, Rent and Eviction) Control Act, 1960. The petition was resisted and the Rent Controller dismissed the petition. The appeal by che landlord failed but, in revision, the High Court chose to remand the case to the appellate authority. The litigation lengthened further because the latter, after hearing parties, rerilitted the whole case to the trial Court for fresh disposal. in accordance with some directions and, after allowing parties to lead evidence. Instead of finishing the case at the trial court level, the landlord repeated revision to the High Court on the perhaps technically correct stand that wholesale remittal, as against calling for finding on specific point, was illegal. While hearing protracted arguments it came to the ken of the court that certain material events of fatal import to the maintainability of the eviction proceedings had come to pass and so it decided to mould the relief in the light of these admitted happenings. The learned judge observed :

"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 t'he peti· tion is no longer maintainable under Section 10(3) (iii) of the Act, as the requisite condition for the invoking of · that provision has ceased to exist viz., that the landlord was net occupying non-residential building in the town. 'Building',

of course means portion of building. .As the prerequisite for the entitlement of the petitioner to institute and continue petition has ceased to eXJst, it must follow that ABA No. 5/1967 is no longer maintainable and must be dismissed."

The inevitable sequel was the dismissal, not only of the civil revision, but also of the eviction petition. Thus, after marathon forensic battle lasting over six years, the landlord lost even the flickering hope of success before the trial Court as result of supererogatory revision to the High Court. It is against this adverse decision he has, by special leave, come to this Court.

Two submissions were advanced by Sri K. S. Ramamurthy to sal-vage his client's case. He argued that it was illegal for the High Court ro have taken cognisance of subsequent events, disastrous as they proved to be, Secondly, he urged that once the High· Court held-as it did-that the appellate tribunal acted illegally in remitting the whole case to the Rent Controller, it could not go further to dismiss his whole evic-tion proceedings, misfortune heavier than would have been, had he not moved the High Court at all.

We feel the submissions devoid of substance. First about the )uris-diction and propriety vis vis circumstances which come into being subsequent to the commencement of the proceedings. It is basic to ow: processual jurisprudence that the right to relief must be judged to exist as on the date suitor institutes the legal proceeding. Equally clear is . the principle that procedure is the handmaid and not the mistress of the judicial process. If fact, arising after the tis has come to court and has fundamental impact on th': right to relief tor the manner of mould·· ing it, is brought diligently to the notice of the tribunal, lt cannot blink at it or be blind to events which stultify or render inept the decrctal remedy. Equity justifies bending the rules of procedure, where no specific provision or fairplay is violated, with view to promote subs-tantial justice-subject, of course, to the ab~ence 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. ~ulings on this point arc legion, even as situations for applications of this equit-able rule arc myraid. We affirm the propooition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realitie8, the court can, and in ;many .cases must. take cautious cognisance of events and developments / ~ubsequcnt to the institution of the proceeding provided the rules of fair-v ness 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, material bearing on the right to evict in tjew of the inhibition written into s. 10(3 )(iii) itself. We lre not disposed to disturb this approach in law or finding of fact.

· The law we have set out is of <mcient vintage. We will merely refer to Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri(!) which is leading case on the point. Gwyer C.J., in the above case, referred to the rule ado?ted by the Supreme Court of the United States in Pat-terson v. State of Alabama(2) :

''We have frequently held that in the exerc.!se of our appellate jurisdiction we have power not only to correct error 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 judg-ment was entered."

and said that that view of the Court's powers was reaffirmed once again · in the then recent case of Minnesota v. National Tea Co.([3]). Sulaim:m J., in the same case([1]) relied on English cases and took the view that an appeal is by way of re-hearing and the Court may make such order as the Judge of the first instance could have made if the case had been heard by him at the date on which the ap,peal was heard. (emphasis, ours). Varadachariar J., dealt with the same point little more com-D prehensively. We may content ourselves with excerpting one passage which brings out the poi_gt luminously (at p. 103) : .

"It is also on the theory of an appeal being in the nature of re-hearing that the courts in this country have in numerous cases recognized that in moulding the relief to be granted in . 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."

The High Court, in this case, in the concluding stages slightly self-contradicted itself and observed : 'the civil revision petition cannot be entertained' and proceeded further to state : 'It will not be desirable that I should exercise my discretion in directing an amendment of the peti-tion'. In conclusion, the Court did interfere in revision by setting aside the order of remittal to the Rent Controller. and dismissing the eviction petition, leaving the near decade-old litigation to be reopened in fresh unending chapter of forensic fight. The learned Judge gave little com-fort to the litigant who had come with proved case of bona fide require-ment to start his own business by his obscure observation : 'If so advis-ed the petitioner may seek to obtain such relief as may be open to him by filing fresh petition under the appropriate provision of the Act, in view of the subsequent event of his 111aving come into possession of portion of the building'. 'We think it unfair to drive parties to new litigation of unknown duration but direct, in the special circumstances of the case (which are peculiar) that : (a) the re"ision before the High Court shall stand dismissed; (b) the Rent Controller will take note of the subsequent development disabling the landlord from seeking evic-, • tion on which there is already an adverse finding by the High Court;

(I) [1940} F.C.R. 85.

(2) 294 U.S. 600, 607.

(3) 309 u. s. 551, 555. 15-564SupCl/75

( c) the landlord be allowed to amend his petition if he has case for eviction on any other legally permissible ground; and ( d) the parties · be given fair and full opportunity to file additional pleadings anq lead evidence thereon. But we make it clear that the subsequent event that the petitioner had come by non-residential accommodation of his own in the same town having been found by the High Court, cannot be can-vassed over again. That finding of legal disability cannot be reopened. We keep open for enquiry only grounds, 1£ any, which may reasonably be permitted by amendment if they are of any relevance or use for eviction.

With these observations we partially allow the appeal as indicated above and direct the parties to bear their respective costs.

Appeal partly allowed.