Holding

The landlord must establish a continuing bona‑fide requirement and the absence of any other reasonably suitable accommodation, and the tenant may rely on subsequent events; the amendment of pleadings was allowed and the eviction decree under section 12(1)(f) was set aside.

Summary

The landlord filed two eviction suits seeking possession of a non‑residential building, claiming he needed the premises to start a medicine shop and to carry out reconstruction, and that he had no other suitable accommodation. The tenant argued that the landlord already possessed a major portion of the building (vacated by Goraldas Parmanand) which was sufficient for his business, and that the landlord's claim under section 12(1)(f) of the Madhya Pradesh Accommodation Control Act therefore failed. The Supreme Court held that the landlord must prove both a bona‑fide requirement and the absence of any other reasonably suitable accommodation, and that this requirement must continue to exist at the date of the final decree. The Court also ruled that the tenant could invoke subsequent events, such as the landlord acquiring alternative premises, and that the amendment of the written statement under Order VI Rule 17 CPC should be allowed despite delay. Consequently, the decree of eviction under section 12(1)(f) was set aside and the matter remanded for further determination, particularly on the landlord's claim under section 12(1)(h) and any directions under section 18.

Issues considered

The landlord's entitlement to evict under section 12(1)(f) of the Madhya Pradesh Accommodation Control Act, requiring proof of bona‑fide need and lack of other suitable accommodation.
Whether the landlord's acquisition of vacant possession of the adjoining portion of the building defeats his claim under section 12(1)(f).
Whether a tenant, despite a decree of eviction, may invite the court to consider subsequent events affecting the landlord's requirement.
Whether amendment of the written statement under Order VI Rule 17 CPC is permissible despite the lapse of time.
Whether the landlord's requirement under section 12(1)(f) must continue to exist at the date of the appellate decree.
The applicability of section 12(1)(h) for reconstruction and the need for directions under section 18 of the Act.

Legislation cited

Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960
Code of Civil Procedure, 1908s. Order VI Rule 17
Madhya Pradesh Accommodation Control Act, 1961s. 12(1)(f), s. 12(1)(h), s. 18

Subjects

evictionpersonal requirementlandlord‑tenantsection 12(1)(f)section 12(1)(h)amendment of pleadingsOrder VI Rule 17subsequent eventsremand

Judgment

605

HASMAT RAJ & ANR. A
v.
y RAGHUNATH PRASAD

April 28, 1981
B
[D.A. DESAI, R.S. PATHAK AND E.S. VENKATARAMIAH, JJ.J

Madhya Pradesh Accommodation Control Act, 1961-Scope of section 12(I)
(f)-Bonafide requirement under section 12(1}(f}-Landlord filing two eviction
suits and acquiring possession of a major portion of the suit premises through an
eviction order passed in one of them-Whether this acquisition amounts to the
landlord "has a reasonably suitable non-residential accommodation of his own c
in his occupation in the city or town concerned" within the meaning of section
12(I)(f) of the Act-Noticing of such event subsequent to the passing of the
decreefor eviction in the other eviction suit, whether a must by the Court-
P.ropriety of refusal of leave to amend the written statement under order VT rule 17
Civil Procedure Code by the High Court.

The respondent-landlord filed two eviction suits for recovery of possession D
of a non-residential building which were in occupation of a finn Goraldas Parma-
nand and the appellant-tenant. The portion occupied by.the appellant including
the frontage was 7 'x221. In the view of the fact that the landlord obtained eviction
order against the firm Goraldas Parmanand on the ground th at the building was
required for the purPose of reconstruction and repairs and also for bona fide
requirement, in the later eviction suit filed a~ainst the appellant, in para 4 of the
plaint the landlord stated that he was in possession of a major portion of the E
non-residential building which he obtained from the firm M/s. Goraldas Parma-
nand, The appellant contested the eviction suit filed against him on the ground,
(a) that the premises was not in dilapidated condition and did not, therefore,
~ need reconstruction and repairs and (b) that the landlord in view of his own
admission in the plaint at para 4 has a reasonable suitable non-residential
accommodation of his own and therefore cannot claim his eviction under section
.. (12)(1)(f) of the Madhya Pradesh Accommodation Control Act, 1961. F
The trial court rejected the tenant's pleas and passed an eviction order. In
appeal the first appellate court, while confirming the finding of the trial court that
the building was in a dilapidated condition and required re-construction and
repairs, held that even though the landlord obtained a decree against the firm
Goraldas Parmanand, he had not got actual possession, as the litigation was still
pending and, therefore, the plaintiff's requirements of the whole building was
established. G
In the second appeal before the High' Court, an application under Order
VI, Rule 17, Code of Civil Procedure, was made praying for an amendment to
the written statement alleging that the firm Goraldas Parmanand has vacated the
entire portion of the premises in his possession and the plaintiff-landlord has
obtained actual possession of a major portion of the building and if this aspect H
was taken into consideration the plaintiff-landlord would not be entitled to a
decree for eviction under section 12(1 )(f) of the Act. The High Court rejected
606 SUPREME COURT REPORTS [1981] 3 S,C.R.

A the application observing that the adjoining portion occupied by-firm Goraldas
Parmanand was vacated by the firm as for back as in the year 1972 and, there-
fore, the application for amendment filed 3·1/2 years after ·the filing of the [second
appeal must be rejected. Further it was of the view that the definition of
"tenant" in the· Madhya Pradesh Act would not enable a tenant, though in
possession but against whom a decree or order for eviction has been made, to

B
invite the court to take notice of events subsequent to the passing of the decree
for eviction by the trial court. The High Court, accordingly confirmed the
..... ~
•
decree for eviction. hence, the appeal by the tenant after obtaining special leave
of the Court.

Allowing the appeal and remanding the matter to the first appellate court
• •Z"
with directions, the Court

c HELD : I. Before an allegation of fact to obtain the relief required is
---~
permitted to be proved, the law of pleadings require that such facts have to be
alleged and must be put in issue. Any amount of proof offered without pleadings 1~
is generally of no relevance. In order to be able to seek eviction of a tenant
under section 12(1l(f) of the Madhya Pradesh Accommoaation Control Act, 1961,
the landlord has to allege and establish (i) that he bona fide requires the accom-
modation let to the tenant for non-residential purposes for the purpose of con-
D tinuing or starting his business and (ii) that he has no other reasonably suitable
non-residential accommodation of his own in his occupation in the city or the
town concerned. The burden to establish both the requirements of section
12(1)(f) is squarely on the landlord. [610 H, 611 A, 612 D and F] •
2. The application under Order VI Rule 17, Civil Procedure Code, in view
of the averments in the written statement is wholly superfluous. However, in
E view of the pleadings in the instant case, it must be granted because "the burden
of proof of establishing that the landlord was not in possession of a reasonably
suitable accommodation in the same town was on the plaintiff" it was wrongly
rejected by the High Court on untenable ground that the defendant-appellant
was guilty of delay and !aches ignoring incontrovertible admitted position which •I •
would non-suit the respondent-plaintiff. [613 E-G]

F 3:1. The definition of expression "tenant" in the Madhya Pradesh .'
Accommodation Control Act, 1961 excludes from its operation a person in
possession against whom any order or decree for eviction has been made.
The decree means the decree of the final court. This is so because once an
appeal against decree or order of eviction is preferred, the appeal is a continua- .,
tion of suit. (615 C, 616 BJ

G 3:2. When an action is brought by the landlord under 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 appellate
decree, or the date when a higher court deals with the matter. During the prog·
ress and passage of proceeding from court to court if subsequent events occur
~: ...
:. ·~
t
which if noticed would non-suit the plaintiff. the court has to examine and
H evaluate the same and mould the decree accordingly. The tenant is entitled to
show that the need or requirement no more exists by pointing out such subsequent
events, to the court including the appellate court. Otherwise the landlord would
HASMAT RAJ V. RAGHUNATH 607

derive an unfair advantage, and it would be against the spirit -or intendment of A
Rent Restriction Act which was enacted to fetter the unfettered right of re-entry,
In such a situation it would be incorrect to say that as decree or order for
eviction is passed against the tenant he cannot invite the court to take into
y consideration subsequent events. But the tenant can be precluded from so.
contending when decree or order for eviction has become final. [616 C-G]

Pasupuleti Venkateswarlu v. The Motor and. General Traders, [1975] 3 B
S.C.R. 958, followed.

Taramal v. Laxman Sewak and Ors., 1971 Madhya Pradesh Law Journal
p. 888, overruled.

3:3. In the instant case ; (i) relying on the admission of the plaintiff
himself that be bas in his possession a shop admeasuring 18 1x90/ plus 7'x68'
forming part of the same building and his failure to state that the space with
c
18' frontage is neither suitable nor reasonably suitable nor sufficient for starting
his business as Chemist and Druggist, the plaintiff's suit for eviction on the
ground mentioned in section 12(1 )(f) of the Madhya Pradesh Act must fail ;
(ii) the finding of the courts below that the respondent requires possession of
the whole of the building including the one occupied by the tenant for starting
his business as Chemist and Druggist as also for bis residence is vitiated D
beyond repair. The observation of the High Court that the remaining portion
of the premises would be used by the landlord for his residence and even
though the portion utilised for the purpose of running the business would be
smaller compared to the one to be utilised for the residence it would still not
be violative of sub-section (7) of section 12 because such a composite user
would not radically change the purpose for which the accommodation was let,
is contrary to records and pleadings. (618 B-C, D-F, 619 B-C]
E
4:1. In order to obtain possession under section 12(1)(h) of the Madhya
Pradesh Act the landlord has to establish his bona fide requirement of the
accommodation in possession of the tenant for the purpose of building or re-
building or making thereto any substantial additions or alterations and must
further show that such building or re-building or alterations cannot be carried
out without the accommodation being vacated. If the landlord succeeds in his
prayer for possession on the ground mentioned in section 12(l)(h), it would. be F
necessary for the court to give appropriate directions under section 18 of the
Act. [619 F-G, 621 BC]

4:2. Here, as the matter has not been examined from this angle by any ..
court, even though the litigation is pending for a long time, the case requires
to be remanded to the first appellate court to ascertain : (i) whether the land-
lord is interested in re-constructing that portion of the building which is .in
G
possession of the tenant as demised premises ; (ii) whether the landlord would
be in a position to reconstruct foe building in his possession without the- tenant
being required to vacate the demised premises and (iii) if the first two queries
are answered in favour of the landlord, what should be the appropriate
directions to be given in favour of the tenant as enjoined by section 18 of H
the Act. [621 C-F]
608 SUPREME COURT REPORTS [1981] 3 s.c.R.

A Per Pathak, J. (Concurring)

I. In a proceeding for the ejectment of a tenant on the ground of personal
requirement under a statute controlling the eviction of tenants, unless the statute
prescribes the contrary the requirement must continue to exist on the date when
the proceeding is finally disposed of, either in appeal or revision, by the
relevant authority. Here, the High Court should have allowed the application
B for amendment of the written statement under Order VI Rule 17, Civil
Procedure Code. [624 E-F]

2. Before the need for per~onal residence can be held proved, several
considerations need to be proved under section 12(1)(e) of the Act. The omission
to draw the attention of the High Court to the fact that the need for ipersonal
residence was never pleaded in the plaint led the High Court to fall into error
c in taking this element into account. [625 B-C]

Per Contra:

3:1. In the instant case, it is clear from the concurrent findings of the
courts below that (a) the respondent has made out his case under section 12
(l)(h) of the Act that he requires the building including the portion occupied by
n the appellants for the re-construction of the front portion and repairs to the
rear portion and that necessitates that the appellants vacate their accommoda-
tion and (b) the respondent needs a portion of the building for starting the
business of a medicine shop. [625 E-G]

3:2. Whether or not the shop should be located in the front portion of
the building and what should be the dimensions of the proposed Chemist and
E Druggist shop will tum on the evidence adduced by the parties in that behalf,
· Giving a finding on this point, in the circumstances of thii case, is pre-eminently
a task to be entrusted to a subordinate court. The questions for consideration
by the appellate court are : (i) what should be the location of the shop and what
should be the dimensions in the matter and (ii) availability of [the benefit under
section 18 of the Act to the appellants. [625 D-E]

F CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1108 of
1976.
Appeal by special leave from the judgment and order dated
the 17th April 1976 of the Madhya Pradesh High Court in Second
Appeal No. 113 of 1969.

G S.K. Mehta, P.N. Puri and E.M.S. Anam for the Appellants. y

P.P. Juneja for the Respondent.

The following Judgments were delivered
H
DESAI, J. A tenant m;ider a decree of eviction is the appellant.
in this appeal by special leave.

I
HASMAT RAI v. RAGHUNATH (Desai, J.) 609

Respondent landlord filed a suit for recovery of possession of A
premises being a small shop admeasuring 7' X 22' forming part of
a big non-residential building situated in Sadar Bazar, Bilaspur town
y in Madhya Pradesh on two grounds, to wit : (i) that he (landlord)
intended to open a medicine shop and he had no other reasonably
suitable accommodation for the same in the town ; and (ii) that he
(landlord) required the suit building for the purpose of reconstruc- B
tion and repairs which could not be carried out unless it was vacated
by the defendant. The tenant resisted the suit pointing out that the
landlord on his own admission as set out in plaint para 4 was in
possession of a major portion of a non-residential building of which
he acquired possession from the firm of Goraldas Parmanand which
accommodation was sufficient for starting the business of Chemists c
and Druggists shop. It was also contended that the building was
not in a dilapidated condition and did not need reconstruction and
repairs.

The trial court recorded a finding that the building was in a
dilapidated condition and reconstruction of it was essential and the D
landlord had sufficient funds to undertake reconstruction. On the
question of personal requirement of plaintiff to start a medicine
shop, the trial court recorded a finding that in the front pJrtion .of
building landlord would start his business as Chemists and Druggists
and the rear of the building would be utilized by him for his
residence. It was further held that as the landlord's requirement E
was a composite one in that he wanted to reconstruct the building
and then use the whole of it for himself, therefore, the tenant was
not entitled to be inducted in the reconstructed building which he
would have been entitled to claim under section· 18 of the Madhya
Pradesh Accommodation Control Act, 1961 ('Act' for short).
F
An appeal by the tenant to the District Court elicited in para
20 a finding that though the landlord was studying he might choose
his career for business after he completed his education and he had
got Rs. 8,000 in a fixed deposit account in a bank and even though
he obtained a decree against the firm of M(s. Goral Parmanand he G
had not got actual possession as the litigation was still pending and,
therefore, the plaintiff's requirement of the whole building was
established. The finding that the house was in dilapidated condition
and ·required reconstruction was affirmed.
H
When the matter reached the High Court in second appeal by
the tenant an application under Order VI, rule 17, Code of Civil
610 SUPREME COURT REPORTS [1981] 3 s.c.R.

A Procedure, was made praying for an amendment to the written state-
ment alleging that the firm Goraldas Parmanand has vacated the
whole of the remaining portion of the building excluding the premises
in possession of the tenant measuring T x 22' and that the plaintiff
has obtained actual possession of the same and if this aspect was
taken into consideration the plaintiff landlord would not be entitled to
B a decree for eviction under s. 12(l}(f) of the Act The High Court
rejected the application observing that the adjoining portion occupied
by firm Goraldas Parmanand was vacated by the firm as far back as
in the year 1972 and therefore the application for amendment filed 3!
years after the filing of the appeal must be rejected on the ground
of delay and !aches. Further, despite the judgment of this Court
c in Pasupuleti Venkateswarlu v. The Motor and General Traders,( 1) the
High Court felt considerable hesitation in faking note of this event
subsequent to the passing of the decree for eviction by the trial
court because of its earlier decision in Taramal v. Laxaman Sewak
and Ors (2) in which it was held that the di;finition of 'tenant' in
the Act would not enable a tenant, though in possession but against
D whom a decree or order for eviction has been made, to invite the
Court to take notice of events subsequent to the passing of the
the decree for eviction by the trial court. The decision of· this
Court was distinguished on the ground that the definition of the
expression 'tenant' in Andhra Pradesh Building (Lease Rent and
Eviction) Control Act, 1960, was somewhat different and was wide
E enough to include such persons. The High Court accordingly
rejected the application and dismissed the second appeal confirming
the decree for eviction.

Section 12(l}(f) under which eviction of the tenant is sought
by the landlord reads as under :-
F
"that the accommodation let for non-residential pur-
poses is required bona fide by the landlord for the purpose
of continuing or starting his business or that of any of his
major sons or unmarried daughters if he is the owner
thereof or for any person for whose benefit the accommo-
G dation is held and that the landlord or such person has no
other reasonably suitable non residential accommodation
of his own in his occupation in the city or town concerned."
In order to be able to seek eviction of a tenant under s. 12(1)(f) the
landlord has not only to establish that he bona fide requires the
H
(1) [1975] 3 S.C.R. 958.
(2) 1971 M.P. Law Journal 888.
HASMAT RAI v. RAGHUNATH (Desai, J.) 611

accommodation let to the tenant for non-residential purposes for the A
purpose of continuing or starting his busine~s but he must further
show that the landlord has no other reasonably suitable non·
y residential accommodation of his own in his occupation in the city
or the town concerned.

The landlord in this case seeks eviction of the tenant from a B
building let for non-residential purpose. He can obtain possession
either for continuing or starting his business. He was a student
at the relevant time. He appeared to have completed his education
thereafter. It is stated in the plaint unambiguously that he wanted
to start business by opening a medicine shop. In other words, he
wanted to start a Chemist and Druggist shop. He must, therefore, c
show that he has not got in his possession a reasonably suitable
non-residential accommodation of his own in his occupation in the
town of Bilaspur.

The suit building, as earlier observed, is in the city of Bilaspur
and situated in Sadar Bazar, obviously a business locality. Res- D
pondent:landlord claims to be the owner of the whole building.
The suit premises in possession of the tenant in which he is
carrying on a small kirana shop admittedly admeasures 7' frontage
on the main road and 22' in depth. In other words it is 7' x 22'.
The whole building of which demised premises form a small part
appears to be having a frontage of 28'. 3' passage has to be exclud- E
ed. The premises in possession of the tenant has a frontage of 7'.
The length of the building or what is styled as depth was given out
to us as 90' by learned counsel for respondent-landlord. 18' frontage
with 90' depth was thus in possession of firm Goraldas Parmanand.
Respondent landlord had also initiated proceedings for obtaining
possession of the premises occupied by firm Goraldas Parmanand F
on the same ground, namely, that he wanted to start his business
of Chemists and Druggists in the building.

The question is whether the premises occupied by firm
Goraldas Parmanand has been vacated by the firm. If the answer G
is in affirmative, the respondent landlord has thus obtained vacant
possession of the whole of the premises occupied by firm Goraldas
Parmanand. Looking to the map annexed to the plaint and the
evidence led in the case and the dimensions of the premises stated
at the hearing of this appeal the area vacated by the previous H
tenant would be 18' x 90' plus portion at the back of the premises
occupied by the present appellant which would be 7' x 68' and it
612 SUPREME COURT REPORTS [1981] 3 S.C.R.

A has come in possession of the respondent. The last question would
be if landlord obtained vacant possession subsequent to the decree
passed against the present appellant tenant by the Trial Court,
whether the subsequent event could be noticed by the court for
moulding the decree against the present appellant tenant.

B Section 12 starts with a non-obstante clause thereby curtailing
the right of the landlord to seek eviction of the tenant which he
might have under any other law and the right of eviction is made
subject to the overriding provision of section 12. It is thus an
enabling section. In order to avail of the benefit conferred by
section 12 to seek eviction of the tenant the landlord must satisfy
c the essential ingredients of the section. The landlord in this case - _.._ __
seeks eviction of the tenant under section 12(l)(f). He must, there-
fore, establish (i) that he requires bona fide possession of a building
let for non-residential purpose for continuing or starting his busi-
ness; and (ii) that he has no other reasonably suitable non-residential
accommodation of his own in his occupation in the city or town
D concerned. The burden to establish both the requirements of section
12(l)(f) is squarely on the landlord. And before an allegation of
fact to obtain the relief required is permitted to be proved, the law
of pleadings require that such facts have to be alleged and must
be put in issue. Ordinarily, therefore, when a landlord seeks
eviction under section 12( I )(f) the court after satisfying itself that
E there are proper pleadings must frame two issues namely (i) whether
the plaintiff landlord proves that he bona fide requires possession
of a building let to the tenant for non-residential purpose for conti-
nuing or starting his business, and (ii) whether he proves that he
has no other reasonably suitable non-residential accommodation of
his own in the city or town concerned. With out elaborating we
F must notice a well established proposition that any amount of proof
offered without pleadings is generally of no relevance.
Turning to the pleadings in this case the plaintiff in para 6 of
the plaint has stated as under :-

G "The plaintiff intends to start his own business in the
said building after the said reconstruction. He intends to
open a medicine shop therein. The plaintiff bona fide
requires the suit house for the above purpose. He has no
other suitable accommodation for the same in the town."
H
The cryptic averment is that the plaintiff has not got any other
reasonably suitable accommodation in the same town. However,
HASMAT RAI v. RAGHUNATH (Desai, J.) 613

in para 4 of the plaint it is stated 'that the major portion of the A
building is in occupation of the firm Goraldas Parmanand and the
plaintiff has already obtained a decree for its eviction therefrom'.
The defendant in his written statement has in term stated that the
defendant is in possession of a small portion of the building, the
remaining p~rtion of which was in possession of firm M/s. Goraldas
Parmanand. In para 6 of the written statement it is further stated B
that on his own admission, the plaintiff has got a suitable alterna-
tive accommodation being the premises for which a decree of
eviction is obtained for doing business and which is more than
sufficient for his requirement. The learned Trial Judge framed Issue
No. 2(a) on the question whether the plaintiff landlord had no other
reasonably suitable accommodation of his own in his occupation in c
the city. While recording finding on this issue the cryptic observation
in para 19 of the judgment is that the plaintiff is a student and he
has no other accommodation for starting his own business. There
is not the slightest reference to the decree admittedly obtained by
the plaintiff against firm M/s. Goraldas Parmanand which firm was
carrying on business in a portion of the building which the plaintiff D
himself has described as the major portion of the building, the suit
premises being a small portion of the whole building. In the first
appeal this contention is disposed of by observing that the alternative
accommodation which the defendant has pleaded in his written
statement is under litigation and therefore it cannot be treated as
available to the plaintiff.' E
In the second appeal in the High Court the defendant appel-
lant moved an application under Order VI Rule 17 for amendment
of the written statement for elaborating what was already stated
that not only the decree obtained by the plaintiff against the
adjoining tenant of the same building namely firm of M/s. Goraldas F
Parmanand has become final but the plaintiff in execution of the
decree way back in I 972 obtained actual possession of the whole of
area occupied by that firm and that forms major portion of the whole
building. This application, though, in our opinion, to be whoily
superflous in view of the pleadings hereinbefore set out and in view
of the fact that the burden of proof of establishing that the landlord G
was not in possession of a reasonably suitable accommodation in
the same town was on the plaintiff was rejected on untenable
ground that the defendant appellant was guilty of delay and !aches.
This application for amendent deserves to be granted, and we grant
the same. What is its impact ? Even while rejecting the application H
the High Court in terms observed in para 4 of its judgment as
under:-
614 SUPREME COURT REPORTS [1981) 3 S.C.R.
A 'Adjoining portion was vacated by firm Goraldas
Parmanand as far back as in the year 1972'.

The High Court thus had before it a fact beyond dispute and beyond
controversy that the major portion of the building was vacated by
the adjoining tenant way back in 1972. This was an uncontroverted
B fact. Therefore remand on this point is an exercise in futility
because the fact alleged in the application for amendment is
admitted. After rejecting the application on wholly untenable ground
the High Court in 1976 affirmed the finding wholly contrary to
record as available at that stage that the plaintiff landlord had no
other reasonably suitable non-residential accommodation of his own
c in his occupation in the city even though on landlord's own admis-
sion he had acquired vacant possession of a major portion of the
building let for non-residential purpose as far back as 1972. In the
course of hearing we were repeatedly told that the finding of facts
are sacrosanct. The finding of fact ignoring incontrovertible
admitted position which would non-suit the plaintiff if upheld
D would be travesty of justice. The burden being on the plaintiff to
show that he had no other reasonably suitable accommodation for
carrying on the business which he wanted to start in the suit
premises, it was for the plaintiff to show that he had not acquired
possession from firm Goraldas Parmanand. Alternatively the
plaintiff should have shown that the said adjacent accommodation
E was not reasonably suitable for the business he wanted to start. He
has done neither. On the contrary plaintiff has admittedly adopted
a position in the plaint that he not only wanted suit premises but
also the adjoining premises of which he had obtained possession for
starting his business. In such a situation i · the High Court had
kept in view that the plaintiff had already with him viz. possession
F
of a building having 18' frontage on the main road and 90' depth
plus portion at the back of the suit premise~ in his possession it
would have to come to an affirmative conclusion that the plaintiff
had sufficient accommodation for starting his business as a Chemists
and Druggists. It was no where pointed out by the plaintiff that the
shop of Chemists and Druggists or a medicine shop would require
G frontage of more than 18'. 18' frontage on a main road in a city
like Bilaspur is sufficiently attractive and accommodating. The depth
of the shop as given out to us being 90' ; therefore landlord has now
in his possession shop admeasuring 18' X 90' plus the area of 7' X 90'
at the back of the suit premises being part of the same buildin.g.
H Would this not provide more than ample accommodation _to the
plaintiff to start his business as a Chemists and Druggists ? Not one
HASMAT RAJ v. RAGHUNATH (Desai, J.) 615

word has been said that the accommodation which is already in pos- A
session of the plaintiff is neither suitable nor reasonably suitable nor
sufficient for starting his business. In fact the very stand of plaintiff
y landlord as accepted by the High Court that some portion at the
back would be utilised by landlord for residence would affirmatively
establish that landlord has more than enough vacant accommodation
in possession for starting his business. B

The difficulty which the High Court experienced was whether
a tenant under a decree of eviction could invite the Court to take
into consideration the events .subsequent to passing of the decree
which if noticed would non-suit the landlord.
c
The definition of expression 'tenant' in the Act excludes from
its operation a person in possession against whom any order or
decree for eviction has been made. The High Court referred to its
earlier judgment in Taramal's case wherein it was held that the
protection to a statutory tenant lapsed with the passing of a decree
D
and such a person had no right to bring on record new circumstances
which were not in existence at the date of the passing of the decree.
This approach wholly overlooks the scheme of the Rent Restriction
Act. The M.P. Act enables a landlord to seek eviction of a tenant
and obtain possession under various circumstances set out in section
12. If a Ian dlord bona fide requires possession of a premises let
E
for residential purpose for his own use, he can sue and obtain
-( possession. He is equally entitled to obtain possession of the
premises let 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
F
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 defeat the beneficial provisions of a welfare legislation like
the Rent Registration Act. If the landlord is able to show his G
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 to satisfy his requirement,
on the view taken by the High Court, the tenant should be able H
to show that the subsequent events disentitled the plaintiff, on the
only ground that here is tenant against whom a decree or order for
616 SUPREME COURT REPORTS (1981] 3 S.C.R.

A eviction has been passed and no additional evidence was admissible
to take note of subsequent events. When a 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
B the decree or order has become final in the sense that it is not
open to further adjudication by a court or heirarachy 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
C decree or order for eviction referred to in the definition of tenant must
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, landlord's need must be shown to continue
to exist at appellate stage. If the tenant is in a position to show
that the need or requirement no more exists because of subsequent
D 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 what we want to
convey. A landlord was in a position to show he needed possession
of demised premises on the date of the suit as well as on the date
E of the decree of the trial court. When the matter was pending in
appeal at the instance of the tenant, the landlord built a house or
bungalow which would fully satisfy his requirement. If this sub-
sequent 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 Rent Restriction Act
which was enacted to fetter the unfettered right of re-entry. There-
fore when an action is brought by the landlord under Rent Restric-
tion 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
G 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 (supra) where Justice Krishna Iyer speeking
H for the Court observed as under :-
"We affiirm the proposition that for making the right
or remedy clain;ed by the party just and meaningfully as
HASMAT RAJ v. RAGHUNATH (Desai, J.) 617

also legally and factually in accord with the current realities, A
the court can, and in many cases must, take cautions
cognisance of events and development subsequent to the
y institution of the proceeding provided the rules of fairness
to both sides are scrupulously observed."
B
In order to fully evaluate the law laid down in the aforementioned
extracted passage it is worthwhile to give the background of facts
in which it was made. The appellant landlord in that case was the
owner of a large building which was leased out in separate portions
to several tenants. One of such tenants was the respondent. The
landlord wanted to start a business in automobile spares and
claimed eviction of the respondent under the Rent Restriction Act
c
being Andhra Pradesh Buildings (Lease, Rent and Eviction) Control
Act, 1960. The petition was resisted and the Rent Controller
dismissed the petition. The appeal of the landlord failed. But in
revision the High Court chose to remand the case to the appellate
authority and the appellate authority in turn remitted the case to D
the Trial Court for fresh disposal in accordance with certain
directions. The landlord preferred a revison petition against the
order of remand by the first appellate court. The High Court
dismissed the action of the landlord taking cognisance of a sub·
sequent event namely that the landlord acquired possession of a
reasonable suitable non-residential building in the same town. In E
appeal to this Court it was seriously contended that it was improper
for the High Court to take into consideration the subsequent events
and this contention was negatived inter alia on the ground in the
passage extracted above. Therefore, it is now incontrovertible that
where possession is sought for personal requirement it would be
correct to say that the requirement pleaded by the landlord must F
not only exist on the date of the action but must subsist till the
final decree or an order for eviction is made. If in the meantime
events have cropped up which would show that the landlord's
requirement is wholly satisfied then in that case his action must fail
and in such a situation it is incorrect to say that as ·decree or order
for eviction is passed against the tenant he cannot invite the court to G
take into consideration subsequent events. He can be precluded
from so contending when the decree or order for eviction has
become final. In view of the decision in Pasupuleti's case (supra)
the decision of the Madhya Pradesh High Court in TartJmal' s case
must be taken to have been overruled and it could not be distingui- H
shed only on the ground that the definition of 'tenant' in the
Madhya Pradesh Act is different from the one in Andhra Pradesh
618 SUPREME COURT REPORTS ( [981) 3 S.C.R.

A Act. Therefore, the High Court was in error in declining to take
this subsequent event which was admittedly put forth in the plaint
itself into consideration.

The landlord wants to start his business as Chemists and
Druggists. On his own admission he has in his possession a. shop
B admeasuring 18' x 90' plus 7' x 68' forming part of the same building
the remaining small portion of 7' x 22 is occupied by the tenant.
The landlord has not stated that so much space with 18' frontage
is not reasonably suitable for starting his business as Chemist and
Druggist. In that view of the matter the plaintiff's suit for eviction
on the ground mentioned in section 12(l)(f) must fail and this is
c being done by not disturbing any finding of fact but relying upon
the admission of the plaintiff himself.

There is an err0r apparent on the face of the record inasmuch
as when the High Court was faced with a dilemma whether
the landlord required the whole of the building including demised
D premises now. in possession of the appellant tenant for starting his
business of Chemists and Druggists and when the High Court had
before it an indisputable fact that the respondent landlord has
obtained vacant possession of a major portion of the building which
was in possession of firm M/s. Goraldas Parmanand, was it necessary
for him to have any additional accommodation ? The High Court
E got over this dilemma by observing and by affirming the finding of
the subordinate courts that the remaining portion of the premises
would be used by the landlord for his residence and even though
the portion utilised for the purpose of running the buisness would
be smaller compared to the one to be utilized for the residence it
would still not be violative of sub-section (7) of sec. 12 because
F such a composite user would not radically .change the purpose for
which the accommodation was Jet. This finding is contrary to
record and pleadings. Minutely scanning the plaint presented by
the landlord there is not the slightest suggestion that he needs any
accommodation for his residence. He has not even stated whether
at present he is residing in some place of his own though he claimed
G to be residing in the same town. He does not say whether he
is under any obligation to surender that premises. Section 12(l)(e)
specifically provides for a landlord obtainiHg possession of a building
Jet for residential purposes if he bona fide requires the same for his
own use and occupation. But there is an additional condition
H he must fulfil namely he must further show that he has rio other
reasonably suitable residential accommodation of his own in, his
HASMAT RAI v. RAGHUNATH (Desai, J.) 619

occupation in the city or town concerned. Utter silence of the A
landlord on this point would be a compelling circumstance for the
court not to go in search for some imaginary requirement of the
y landlord of accommodation for his residence. In the context of
these facts the Trial Court and the first Appellate Court committed
a manifest error apparent on the record by upholding the plaintiff's
case by awarding possession also on the ground neither pleaded nor B
suggested. The landlord must have been quite aware that he cannot
obtain possession of any accommodation for his residence. There-
fore, the finding of the High Court and courts subordinate to it
that the respondent-landlord requires possession of the whole of
the building including the one occupied by the tenant for starting
·his business as Chemists and Druggists as also for his residence is c
vitiated beyond repair. Once impermissible approach to the facts
of the case on hand is avoided although facts found by the Courts
are accepted as sacrosanct yet in view of the!incontrovertible position
that emerges from the evidence itself that the landlord has acquired
major portion of the building in which he can start his business as
Chemists and Druggists he is not entitled to an inch of an extra D
space under section 12(1)(f) of the Act.

Respondent landlord also sought possession on the ground set
out in section 12(I)(h) which reads as under :-

"that the accommodation is required bona fide by the E
landlord for the purpose of building or re-building or
making thereto any substantial additions or alternations
and that such building or re-building or alterations cannot
be carried out without the accommodation being vacated."

In order to obtain possession under section l 2(l)(h) the landlord F
again .has to establish his bona fide requirement of the accommoda-
tion in possession of the tenant for the purpose of building or re-
building or making thereto any substantial additions or alterations
and must further show that such building or re-building or altera-
tions cannot be carried out without the accommodation being
vacated. The case of the landlord on this point is that he wants G
possession of the whole of the building including the suit premises
and he has Rs. 8,000 in a fixed deposit account and that as the
building is in a dilapidated condition, he would reconstruct the
same and use it for himself both for residence and starting his
business. H
If landlord acquires possession under section 12(l)(h), section
620 SUPREME COURT REPORTS (1981] 3 S.C.R.

A 18 imposes corresponding obligation which reads as under_;,-

"18. Recovery of possession for repairs and re-
building and re-entry.-(1) In making any order on the
grounds specified in clause (g) or clause (h) of sub-section
(I) of Sec. 12, the Court shall ascertain· from the tenant
whether he elects to be placed in occupation of the accom-
B modation or part thereof from which he is to be evicted
and, if the tenant so elects, shall record the fact of the
before election in the order and specify therein the date on
or which he shall deliver possession so as to enable the
landlord to commence the work of repairs or building or
re-building, as the case may be."
c .......
The courts declined to grant any relief to .the tenant under section
18 on the ground that as the landlord's requirement is a composite
one, the tenant is not entitled to be reinducted in the building that
may be reconstructed by the landlord after obtaining possession of
the same. Now once it is held that the landlord is not entitled to
D possession for his residence and he has more than enough accom-
modation in his possession for carrying on his business, the com-
posite requirement disappears. Landlord's case will, therefore.
have to be exclusively examined in the context of section 12(I)(h).

Two contentions were urged on behalf of the appellant to
E negative the case of the landlord in this behalf; one that the building
is not in a dilapidated condition and secondly it can be repaired
without vacating the premises. As all the courts have concurrently
found that the building is. in a dilapidated condition, this finding is
entitled to respect and it is not proper for us to interfere with the
same. The question would however be whether the landlord wants
F to reconstruct the demised portion of the premises even though he
is not entitled to acquire possession of the same for his use and
that he would be under an obligation to reinduct the tenant after
its construction. The further question is whether the landlord is
interested in reconstructing the whole building. It was ·alternatively
contended that no attempt is made to find out whether the landlord
G would be in a position to reconstruct that part of the building which
has come in his possession once he is not in a position to acquire
possession of the demised premises for his own use. This situation
calls for a fresh examination of the case of the landlord under section
12(1)(h). If landlord is to be awarded possession under section
H 12(l)(h1 on the footing that, that is the only ground on which he
can seek possession, it will have to be found out after giving oppor-
HASMAT RAI v. RAGHUNATH (Desai J.) 621

tunity to the landlord to prove whether he is interested in re-building A
that portion of the building which is occupied by the appellant and
further the court should give necessary direction under section 18. In
y that event the court will have also to ascertain whether the portion
which is now in possession of the landlord and which he may be
interested in reconstructing can be reconstructed without the tenant
vacating the demised premises. As the whole foundation of the B
landlord's case of composite requirement disappears tho matter has
to be examined afresh on the footing that the landlord has come to
the court for possession under section 12(l)(h) only and if he
succeeds in his prayer for possession on the ground mentioned in
section 12(l)(h) it would be necessary for the court to give appro·
priate direction under section 18 of the Act. As the matter has c
not been examined from this angle by any Court it has become
inevitable, even though the litigation is pending for a long time, to
remit the case for examination of this aspect. The question is
whether the remand should be to the first appellate court or to the
trial court. As the first appellate court is the fact finding court, in
... our opinion it would be appropriate for us to remit the case, after D
setting aside the decree of the first appellate court as well as the
High Court, to the first appellate court to ascertain :-

(i) Whether the landlord is interested in reconstructing
that portion of the building which is in possession of
the tenant as demised premises ; E
(ii) Whether the landlord would be in a position to recon-
struct the building in his possession without the tenant
being required to vacate the demised premises ; and
(iii) if the first two queries are answered in favour of the
landlord, what should be the appropriate directions to F
be given in favour of the tenant as enjoined by S. 18 ?

Accordingly, this appeal is allowed and the decree of eviction
made by the trial court and confirmed by the 1st appellate court and
also by the High Court is set aside. The prayer of the landlord for G
possession under section 12(l)(f) is negatived as he is not entitled to
recover possession on the ground mentioned in section 12(l)(f). The
matter is remanded to the 1st Appelate Court for the limited pur-
poses set out in the just preceding paragraph. In the circumstances
of the case there will be no order as to costs. H
622 SUPREME COURT REPORTS [1981] 3 s.c.R.

A PATHAK J. This is tenant's appeal by special leave against the
judgment of the High Court of Madhya Pradesh arising out of a
suit for ejectment.

The suit was filed by the respondent, Raghunath Prasad. He
claimed to be the owner of a building in Sadar Bazar, Bilaspur.
B One portion of the building was occupied by a firm Goraldas Perma-
nand. According to the plaint, the entire building was in a
dilapidated condition and the plaintiff intended to reconstruct the
front portion of the building and to effect major repairs in the rear
portion. In order to do so it was said to be necessary that the
defendants should vacate the the accommodation. In regard to the
c other portion, the plaintiff stated that he had obtained a decree for
ejectment against Goraldas Parmanand. The plaintiff also alleged
that he intended to start the business of a medicine shop and for
that purpose he required the accommodation occupied by the
defendants as it faced the main road in Sadar Bazar, and that he
had no other suitable accommodation in the town for such business.
D
The suit was resisted by the defendants, and a number of pleas
were taken. In particular it was denied that the accommodation
occupied by them was dilapidated and that it was bona fide required
by the plaintiff. It was claimed that in view of the decree for eject-
ment against Goraldas Parmanand the plaintiff had suitable
E alternative accommodation for his proposed business.

The trial court found that the entire building, including the
accommodation occupied by the defendants, needed reconstruction
and repairs, and that for the purpose of his projected business the
plaintiff had bona fide need of the accommodation held by the
F defendants. It was observed that the accommodation occupied by
Goraldas Parmanand was still under litigation as an appeal was
pending in the case. Holding that the grounds under section 12(1)
(f) and 12(1)(h) of the Madhya Pradesh Accommodation Control
Act were made out, the suit was decreed for ejectment.

G The defendants preferred an appeal, and the first appellate
court while dismissing the appeal maintained the findings of the
trial court and upheld the order of ejectment.

A second appeal by the defendants was dismissed by the High
H Court on 17th April, 1976. During the pendency of the appeal the
defendants moved an application under Order VI, Rule 17 of the
Code of Civil Procedure for leave to amend their written statement
HASMAT RAJ v. RAGHUNATH (Pathak, J.) 623

by adding the plea that the plaintiff had secured vacant possession A
of the adjoining portion of the building from Goraldas Parmanand
in the year 1972, and that the case should be remanded for deciding
y whether the accommodation acquired was reasonably suitable for
starting a medicine shop, the purpose for which the plaintiff said
he required the accommodation held by the defendants. The High
Court rejected the application observing that it had been moved B
three and a half years after the event had taken place, that it was
not made bona fide but was intended merely to gain time and would
result in grave injustice to the plaintiff. The High Court also
observed that even if the amendment was allowed it would not affect
the decision of the case, because as the plaintiff's need extended to
entire building his securing vacant possession of one part would not c
conclude the matter. It was pointed out that the plaintiff intended
to reconstruct the entire portion of the building including the
. accommodation occupied by the defendants, as well as effect major
repairs to the rear portion of the building. In place of the shop
of the defondants with a frontage of 7' and a depth of 22' and the
adjoining shop with a frontage of 10' and a depth of 90', the D
plaintiff inteµded to demolish the front portion of both the shops
and to reconstruct the building with a new shop having a wide
frontage of 22' and a depth of 7', and to reside in. the rear portion
of the bµilding. The High Court added that residence in the rear
portion of the accommodation would not alter the nature of the
accommodation as the residence would be incidental to the main E
purpose of carrying on the medicine business in the front portion
of the building.

The defendants having obtained special leave from this Court
this appeal is now before us.

As analysis of the plaint shows tbat the ejectment of the
F
• appellants was sought on two grounds. The respondent intended
to reconstruct the front portion of the dilapidated building and to
repair the rear portion and according to him this required the
appellants to vacate the accommodation occupied by them. That
clearly is the ground envisaged by s. 12(I)(h), Madhya Pradesh
Accommodation Control Act. That ground stood on its own. The G
respondent also intended to open a medicine shop in the front portion
of the building, and he pleaded that he had no other accommodation
for the purpose. That brings into play s. 12(1)(f) of the Act. The
plea shows that as the dilapidated building required reconstruction
and repairs, the respondent indended to avail of the opportunity to
H
so effect the structural alterations as to accommodate a medicine
/
624 SUPREME COURT REPORTS (1981] 3 S.C.R.

A shop which he planned to start as a business in the premises. This
latter ground arose as a sequal to the first. If the first ground was
made out, the appellants would have to vacate the portion held by
them, and if that had been the only ground the court would auto-
matically be called upon to consider s. 18 of the Act, which entitles
the tenant at his option to be reinstated in a portion of the recon-
B structed building. There was the further ground that the respondent
proposed to start his own business in the front portion of the
building, and the finding of the High Court that the respondent
wanted the rear portion of the building for his personal residence.

c The subordinate courts were influenced by the consideration
that although the respondent had obtained a decree for ejectment
against Goraldas Parmanand, the case continued to be the subject
of litigation and therefore it could not be said that the respondent
was in possession of alternative accommodation. However, while
the second appeal was pending in the High Court the appellants
applied for amendment of their written statement to include the
D plea that the respondent had meanwhile obtained possession from
Goraldas Parmanand. The High Court declined to permit the amend-
ment. In doing so, it seems to me that the High Court erred. It was
an essential part of the appellants' defence from the outset that the
portion let out to Goraldas Permanand constituted suitable alterna-
tive accommodation, and therefore they should not be ejected. It
E is immaterial that the amendment was sought more than three years
after possession of the portion had passed to the respondent. The
J High Court was bound to take the fact into consideration because,
as is well settled now, in a proceeding for the ejectment of a tenant
on the ground of personal requirement under a statute controlling
the eviction of tenants, unless the statute prescribes Ito the contrary
F the requirement mus( continue to exist on the date when the pro-
ceeding is finally disposed of either in appeal or revision, by the
relevant authority. That position, to my mind, is indisputable. The
High Court should have allowed the amendment. The High Court,
alternatively observed that the respondent wanted to accommodate his
shop in the front portion of the building and therefore, of necessity,
G y
he would require the portion occupied by the appellants. That
conclusion is based on the findings rendered by the courts below,
which findings the High Court respected as findings of fact. But the
High Court failed to note that both the courts below had proceeded
H on the assumption that the adjoining portion occupied by Goraldas
Parmanand was not immediately available on account of litigation.
It is for that reason that permitting the amendment sought by the
HASMAT RAJ v. RAGHUNATH (Pathak, J.) 625

appellants became relevant and, indeed, imperative. If the respon- A
dent has obtained possession of that portion, and that does not
seem to be disputed, it becomes a serious question for decision
y whether the repondent needs the front portion of the building for his
medicine shop and, if so, according to dimensions proposed by him,
In the consideration of that question the element of the respondent's
need for the rear portion of the building for, his personal residence B
must be ignored. That need was never pleaded in the plaint and, as
will be seen from s. 12(I)(e) of the Act, several considerations need
to be satisfied before the need can be held proved. This aspect of
the matter was apparantly not brought to the notice of the High
Court and therefore it fell into the error of t~king this element into
account. c
My brother Desai has in his judgment held that the respondent
can accommodate his medicine shop in the portion vacated by
Goraldas Parmanand and he has indicated the dimensions of the
shop which appear reasonable to him. With great respect I am
unable to concur with what he has said. Whether or not the shop n
should be located in the front portion of the building and what
should be its dimensions will turn on the evidence adduced by the
parties in that behalf. The original record of the suit is not before
us, and without knowledge of the state of the evidence I would
refrain from a finding on the point. Indeed, it seems to me in the
circumstances of this case to be pre-eminently a task to be entrusted E
to a subordinate court.

Tpe position which then emerges is this. The respondent has
made out his case under s. 12( I)(h) of the Act that he requites the
building, including the portion occupied by the appellants, for recon·
struction of the front portion and repairs to the rear portion, and F
that necessitates that the appellants vacate their accommodation.
This matter is concluded by the concurrent findings of fact rendered
by the trial court and the first appellate court. It is also concluded
by concurrent findings of fact that the respondent needs a portion
of the building for starting the business of a medicine shop. What
should be the location of the shop and what its dimensions is a G
matter which remains for decision. And there is the further question
of considering the availablity of s. 18 of the Act to the appellants.
Both these questions, I think, should be left to the first appellate
court.
Accordingly, I allow the the appeal, set aside the judgment and
H
decree of the High Court and of the first appellate court and remand
626 SUPREME COURT REPORTS [1981] 3 S.C.R.

A the case to the latter court for permitting the appellants to amend
their written statement and allowing the parties to lead such evidence
as is consequentially called for, and thereafter to decide the case
afresh in the light of the observations made above. I would leave
the parties to bear their costs.

S,R. Appeal allowed.

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