Tuesday, 10 September 2019

Whether decree granted in favour of landlord should be set aside on ground of subsequent event?

 The courts below have appreciated the evidence and
concluded on facts that the owners have an expanded family, and their
needs are genuine. It is impermissible for this Court to disturb those
findings of facts in its revisional jurisdiction. The owners, besides
denying these allegations, have contended that all these developments
were said to have taken place when the appeal was pending. But the
tenants did not bring them to that court’s notice. The issue of the
locked rooms had been concurrently rejected by the courts below.
According to them, these pleas are part of the tenants’ delaying
techniques.
62. The alleged later developments, I must note, have not been,
first, properly brought on record—at an appropriate time. Second, at
this stage they cannot be considered; third, there is no clinching
evidence to establish these allegations.
(f) Two of the Owners’ Family Getting Employment:
63. Indeed, the tenants have made heavy weather of this issue.

Indeed, two of the many children in the owners’ family secured
employment. They are many other children, either unemployed or
doing petty businesses. Let us not forget the owners initiated the
eviction proceedings in 1986—over thirty years ago. In this period
someone may be born, brought, and employed. And the one who was
getting educated then, may get employed, and retired. And the one
who was employed then may retire and die away, too.
64. In Dickensian diction, innumerable children may have been
born into the cause; innumerable young people may have married into
it; innumerable old people may have died out of it. The little of the
plaintiffs may have been promised a new toy cycle when the case is
settled, but may have grown up pending the case, possessed a real cycle,
ridden it through his life, and ridden away into the other world. A case
can be perennial but not the life, nor its needs. As it were, courts have
time machines, for cases remain constant decades on end. But not the
clients or causes.
65. True, two of the many children have secured employment.
But that is hardly surprising in three decades and three years. That has
not taken away the owners’ need completely. That development has not
eclipsed their need, so to say.
Suppression of Facts:
66. The tenants have contended that two of the owners’ children
got employment, perhaps, pending the appeal. It was not brought to

the Appellate Court’s notice. It is suppression. At least, the tenants
assert so.
67. S. P. Chengalraya Naidu is the oft-quoted judgment on fraud
and its ramification in the judicial arena. It invokes Chief Justice
Edward Coke’s aphoristic assertion that “Fraud avoids all judicial acts,
ecclesiastical or temporal”. It reiterates that a judgment or decree
obtained by playing fraud on the court is a nullity and non est in the
eyes of the law.
68. As a general rule, suppression of a material fact by a litigant,
according to the Supreme Court[15], disqualifies such litigant from
obtaining any relief. This rule has been evolved out of the need of the
Courts to deter a litigant from abusing the process of Court by
deceiving it. But the suppressed fact must be a material one in the sense
that had it not been suppressed it would have affected the merits of the
case. It must be a matter material for the consideration of the Court,
whatever view the Court may have taken.
69. The owners have a counter allegation: the tenants have
business at another place, too. But they suppressed that fact.
70. At any rate, I see no plea taken in the CA about the
suppression of a material fact: two of the children getting employment.
But it was argued. I reckon among the many children of the owners,
two getting employment in thirty years hardly affects their case
prospects. Nor does it amount to a material suppression.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.497 OF 2016

Smt. Rukminibai Motiram Kshirsagar v/s.  Smt. Manoramabai Mallikarjun Bagale

CORAM : DAMA SESHADRI NAIDU, J.

PRONOUNCED ON: 6th September 2019


Introduction:
In a suit for eviction, the owners have concurrently succeeded.
Both the trial Court and the Appellate Court have accepted that the
owners need the property for their use. Aggrieved, the tenants filed this
Civil Revision Application (CRA) before this Court, under Section 115
of the Code of Civil Procedure. The tenants have pleaded three things:

(a) Change of circumstances or subsequent developments; (b) Owners’
suppressing facts; and (c) the suit proceedings getting abated. We will
examine.
Facts:
2. Generations ago, one landlord let a piece of property—two
shops—to one tenant. The tenancy continued. Both the original
landlord and the original tenant passed away. Later, their legal heirs
succeeded on either side. Eventually, in 1986 the wife and seven
children of the immediate predecessor-landlord filed Suit No.585/1986
to evict the tenants, on the grounds of bona fide requirement and
arrears of rent. During the trial, it seems, the owners gave up their
claim on the arrears of rent, but they persisted with the bona fide
requirement under Section 13(1)(g) of the Bombay Rent Control Act.
Eventually, in 2001, the trial Court decreed the suit.
3. Aggrieved, the tenants filed Civil Appeal No.343 of 2001.
That appeal too was dismissed. Thus, the tenants suffered concurrent
findings. As a matter of collateral development, three defendants, that
is the defendants 3, 5 and 7, died pending the suit. The owners did
bring on record the legal representatives (LRs) of the 5th and the 7th
respondents. But could not bring on record the LRs of the 3rd
defendant. Eventually, the Appellate Bench of the Small Cause Court
dismissed the Appeal.
4. Assailing the judgment in appeal, the tenants filed Civil

Revision Application No. 497 of 2016. Six months later, the tenants
also filed Civil Application No.62 of 2017 with a few documents to
bring on record what the tenants called the later developments not in
their knowledge till then.
Submissions:
Petitioners-Tenants:
5. In the above factual background, Shri Rajesh Patil, instructed
by Shri Rahul Matkari for the applicant, has submitted that pending
the appeal in October 2015, the owners inducted a new tenant into the
adjacent shop. Had there been any bona fide requirement, they would
have used that property, too, for themselves, instead of letting it out to
a 3rd party. In that context, Shri Patil asserts that the plea of bona fide
requirement is false.
6. Then, Shri Patil has drawn my attention to a few photographs
to assert that a lady by name Neeta Ranpise is the new tenant and that
she has been carrying on the business in the adjacent property. Shri
Patil has laid frontal emphasis on what he calls suppression of facts by
the owners. According to him, two of the plaintiffs secured government
employment pending the suit. They never brought it to the notice of
the courts below. Had they brought this vital piece of information to
the Appellate Bench’s notice, the outcome could have been different.
On this count, Shri Patil stresses that once a suiter's conduct is not
bona fide, he deserves no indulgence from the court and, on the same

reckoning, even a meritorious case can be thrown out.
7. Shri Patil has also submitted that for many years, the landlords
have kept two rooms near the leased property locked. This again
exposes the owners’ claim there was any bona fide requirement to
accommodate themselves and carry on business in the leased property.
To elaborate, Shri Patil has shown me a rough sketch filed along with
the civil application, to hammer home his contention that there exists a
clear open space, where the landlords could have constructed as per
their convenience. Thus, the owners could have had a more
commodious building, accommodating the alleged growing needs of
the family.
8. One of the owners living in the vicinity, Shri Patil contends,
has constructed a new structure for the residential as well as commercial
purpose. Then, similarly, the other owners too could have done the
same thing in the vacant space available for them. Besides, the tenant
Shri Patil referred to already, he submits that the owners have inducted
another tenant in another part of the property, that is a shop. Shri Patil
has also stressed that the proceedings the owners initiated stood abated
because they could not bring all the LRs of the deceased tenants.
9. In the context of all these later developments, Shri Patil has
submitted that the lis does not become final until the fruits of the
decree are released. For that, the litigation must run its full course,
including the appeal and the revision. In the meanwhile, any

developments take place, they must be judicially noted and the relief
moulded accordingly.
10. To support his contentions, Shri Patil has relied on Dr.
Vinayak Trimbak Wale v. Tarachand Hiralal Shet Marwadi[1], Mohd.
Ismail v. Dinkar Vinaykrao Dorllikar[2], P. V. Papanna v. K.
Padmanbhaiah[3], S.P. Chengalvaraya Naidu v. Jagannath[4], Parvez
Rustom Nekoo v. Rustom Ardeshir Nekoo[5], and Tarachand
Hassaram Shamdasani v. Durgashankar G. Shroff[6] .
Respondents-Owners:
11. Shri Vikram Sathe, the learned counsel for the respondentsowners,
has submitted that the owners created no new tenancy. And
the photographs the tenants filed do not reveal the true picture.
According to him, what was shown in the photograph is the ‘Veranda’
that provides access to the rest of the property. Without the landlord’s
leave, at some point in time, if some street vendor stood there and
conducted business, that should not be termed a tenancy the owners
have created. In this context, Shri Sathe has submitted that the creation
of tenancy is a legal formality—not a fortuitous event.
12. About the two of the owners securing jobs, Shri Sathe stresses
that it never amounted to suppression of any material facts. It is a lis
1 [] (1960) 62 BLR 785
2 [] (2009) 10 SCC 193.
3 [] 1994 (2) SCC 316
4 [] 1993 DGLS (SC) 918
5 [] 2003(3) Bom.C.R.86
6 [] 2004 (Supp.)Bom. C.R. 333

pendence development not affecting the suit proceedings. According
to him of the eight co-owners, if two have secured an alternative source
of living, it has not rendered the cause of action infructuous. He has
also submitted that it has been a well-established principle of law that
once the cause of action has arisen and proceedings are taken, the later
developments do not denude the cause.
13. About the open area said to have been available, Shri Sathe
submits that it is again a question of an established legal principle that
it is not for the tenants to dictate in what manner the owner should use
his property. To elaborate, he has submitted that constructing
something new entails various factors, such as finance. If a piece of
property is readily available, the landlord cannot be compelled to
abandon his right and be compelled to develop some other property in
a manner which may not be beneficial for him.
14. Touching on the question of abatement, Shri Sathe has
submitted that the tenants have been living for generations and
carrying on the business. As is the case with the owners, people have
been born into both the families, people have moved away from those
families, and some have, inevitably, died away, too. According to him,
the landlords’ have diligently brought on record the LRs of the
deceased defendants and have tried to serve notices on them. Those
LRs were sought to be served on the addresses shown in the
proceedings for respondents. Some have received the notices and

defended themselves, but some have avoided. Even otherwise,
according to him, once it is a joint tenancy it suffers no partial
abatement.
15. Shri Sathe has also submitted that every time, at the eleventh
hour, the tenants have tried to introduce something new. To illustrate,
he has submitted that before the Appellate Bench, for the first time
after many years, the tenants pleaded that they would hand over half
the leased property. Thus they wanted the Appellate Bench to remand
the matter to the trial Court. It was again for deciding whether the
bona fide requirement still subsisted. In this context, Shri Sathe has also
submitted that now in the Revision Application, the tenants raise the
bogey of subsequent developments. According to him all the issues
now the tenants raised had been available to them all along. To
support his contention, he has relied on Gaya Prasad v. Pradeep
Shrivastava[7], Smt. Ramkubai v. Hajarimal D. Chandak[8], and Sait
Nagjee Purushotham & co. Ltd. v. Vimalabai Prabhulal[9].
Reply:
16. In reply, Shri Patil has submitted that the plaintiffs have only
pleaded that the need still subsists; in their reply to the Civil
Application, they have pleaded nothing beyond.
Discussion:
7 [] AIR 2001 SC 803
8 [] AIR 1999 SC 3089
9 [] (2005) 8 SCC 252

17. As I have noted, generations ago the original landlord let a
piece of property—two shops—to the original tenant. The original
landlord and the tenant died. The LRs succeeded on both sides. In
1986, the wife and the seven children of the immediate predecessorlandlord
sued for eviction. It was for their bona fide requirement. In
2001, the trial Court decreed the suit. The tenants Civil Appeal too was
dismissed. So this Civil Revision Application under Section 115 of
CPC.
Later Developments:
18. In this CRA, the tenants have filed an additional affidavit
along with documents. They wanted the Court to consider what they
call the subsequent developments. How does the Court take judicial
cognizance of the subsequent developments?
(a) How Should the Later Developments be Brought on Record?
19. Usually, this Court exercises its revisional jurisdiction under
Section 115 of CPC. That exercise of power concerns the jurisdictional
errors. The challenge per se to the findings of fact ends with the appeal.
And the Bombay Rent Control Act has not provided for the second
appeal. So, in the revision under Section 115 of CPC, the suit survives,
if at all, in an attenuated form, as the challenge is more technical than
substantial.
20. That said, even the revision under Section 115 of CPC is a
continuation of the original suit proceedings. The Code provides for

procedural steps to be taken—for example, placing evidence on record
—both at the trial stage and at the appellate stage, but hardly any
specific provision, again for placing evidence, at the revisional stage.
Even Order 41, Rule 27 permits additional evidence at the appellate
stage, not at the revisional stage.
21. But amending the pleadings is permitted at all stages. Order
6, Rule 17 enables the parties to amend the pleadings. It reads:
“Amendment of pleadings – The Court may at any stage of the
proceedings allow either party to alter or amend his pleadings in
such manner and on such terms as may be just, and all such
amendments shall be made as may be necessary for the purpose
of determining the real questions in controversy between the
parties. Provided that no application for amendment shall be
allowed after the trial has commenced, unless the court comes to
the conclusion that in spite of due diligence, the party could not
have raised the matter before the commencement of trial.”
22. Indeed, the court can allow the parties to amend the
pleadings at any stage of the proceedings. Those amendments must be
necessary for the court to determine the questions in controversy
between the parties. This liberal provision underwent an amendment
in 2002. So the earlier Maharashtra-specific State Amendment of 1983,
I reckon, now may not stand in the way. Then, with the Central
Amendment, the limitation on amending the pleadings is this: there
should be no amendment once the trial has commenced. But there is
an exception: if the court concludes that despite due diligence, the

party could not have raised the matter before the commencement of
trial. And that includes the subsequent developments.
23. For the court to appreciate the later developments, they
should be brought on record through amendment. Once the pleadings
are amended, the later developments become part of the record. Then,
based on the gravity, the appellate court or even the revisional court
may remand the matter.
24. The tenants seem to have filed two applications before the
District Court: Ext.82, for “permitting them to produce documents;”
and Ext.85, “to frame additional issue and remand the matter for
additional evidence on the issue.” Both were dismissed “at the time of
final hearing along with the main Civil Appeal.” But there seems to be
no application for amendment of pleadings per se.
25. Now, in this CRA, the tenants have filed a Civil Application.
They have narrated what they call subsequent developments; besides
they also filed certain documents and photos, for the first time.
Through that CA, the reliefs they sought are these: “b) In view of the
events which are now brought on record, the matter be remanded back
and the Applicants be allowed to amend the written statement and lead
evidence to that effect; c) The subsequent events which have taken
place after the impugned judgments and orders and during the
pendency of the above Civil Revision Application be taken on record
and same may be considered at the time of hearing.”

(b) What Should Amount to the Subsequent Developments?
26. The principal point of discord is the bona fide requirement.
The question is, have the subsequent developments eclipsed this need?
27. In Dr. Vinayak Trimbak Wale, a learned Single Judge of this
Court has held that under Section 13(f)(g) of the Bombay Rent Act, a
landlord could recover possession of any premises if he reasonably and
bona fide required the property for his own occupation. The burden
would, therefore, lie on the landlord to prove his requirement. Then,
the Court has observed that to satisfy the requirements of Section 13(1)
(g) of the Bombay Rent Act, the landlord must establish to the Court’s
satisfaction that “his requirement of the suit premises for occupation by
himself continued even during the pendency of the suit.”
28. In Mohd. Ismail, the appellant was a tenant. The landlord
applied for his eviction. He pleaded that he was jobless and wanted to
start a “kirana business” in the leased property to sustain his family.
According to him, he and his three sons required two shops for their
bona fide need. The appellant was directed to vacate the leased shop.
The Rent Controller and the Appellate Authority concurrently ordered
eviction. The High Court remanded the matter. The appellate
authority returned the same findings.
29. Again, the appellant filed a writ petition. He pleaded in that
writ petition that the landlord filed a similar eviction petition against
another tenant and secured possession. In that property, he had started

a business. The High Court again remitted the matter back to the
Appellate Authority for fresh consideration. Yet again, the same order
of eviction was returned. So the appellant filed a writ petition for the
third time.
30. Again, the High Court partially allowed the writ petition and
directed the Appellate Authority to hear and decide the appeal afresh.
But this time, too, the outcome was no different. So the matter reached
the High Court for the fourth time. This time, the High Court
dismissed the Writ Petition. It concurred with the concurrent finding
that the respondent proved his bona fide requirement. Then, the
appellate approached the Supreme Court.
31. Before the Supreme Court, the appellant’s counsel absented
himself. The Court heard the respondent’s counsel alone. The Supreme
Court remanded the case back to the High Court, “who in turn, would
frame issues to the extent whether in view of the subsequent events, as
stated herein earlier, the bona fide requirement of the respondent
landlord has already been satisfied or not.” This case is an outlier; but,
to my mind, it has no precedential proposition.
32. In another case, the landlord sought his tenant’s eviction, on
various grounds. The trial Court allowed that on the grounds of bona
fide requirement. The trial court granted two years' time to the tenant.
On appeal, the High Court of Karnataka dismissed the tenant’s plea.
But it granted four years' time to the tenant to vacate. Special Leave

Petition filed, that too was dismissed. Before the period of four years
the High Court granted to the tenant could expire, the landlord died.
He bequeathed the property to his brother, his wife, and their son.
Despite the decree holder’s death, the Executing Court ordered
eviction.
33. The tenant reached the High Court, which allowed his
petition. It has held that the landlord’s original cause of action did not
survive on his death. The legatees went to the Supreme Court. In P. V.
Pappanna, the Supreme Court has held that when eviction of a tenant
is sought on the ground of personal need of the landlord, such need
must not only exist on the date of the suit but must also exist when
higher courts deal with the order of eviction in appeal or in revision.
34. P. V. Papanna has finally held that events which take place
after an eviction petition under any Rent Act was filed can be
considered until a decree becomes final. But any event that takes place
after the decree becomes final cannot be made a ground for reopening
the decree. The finality to the dispute culminating in the decree cannot
be reopened by the executing court for adjudication on the ground that
some event or the other has altered the situation. In other words, once
the decree becomes final, “it [becomes] a part of the estate of the
landlord.”
35. In Tarachand Hassaram Shamdasani, the respondentlandlord
pleaded he required the leased property for his business. The

background of that requirement was that he was his partner and they
were carrying on the business on his premises. Then, that nephew
wanted him to go out. The petitioner-tenant in the written statement
denied the respondent’s plea. He asserted that the respondent owned
three other properties. Later, the respondent swiftly changed his stand
about his requirement. Despite the petitioner’s serious objections, this
Court observed, the respondent did not disclose the material facts
necessary to decide the bona fide and reasonable requirement.
36. In the above context, Tarachand Hassaram Shamdasani has
observed that it is obligatory for the landlord to disclose in the
pleadings and in his evidence the fact that he owns other premises
capable of being utilized for the requirement pressed into service in the
suit filed against the tenant and to further disclose and explain that
despite those acquisitions and ownership of other premises, the
requirement still survives.
37. Gaya Prasad begins with an exhortation: “This case presents a
sample scenario of the tormenting plight of an average litigant who
approaches the court with all expectations of getting relief for his
urgent need. But the snail-paced litigation creeping through all the tiers
of the hierarchical judicial forums would have frustrated all his
expectations, though others could admire the tenacity with which he
persisted with the cause.”
38. Then, Gaya Prasad traces the origin of the case: twenty-three

years ago, the landlord wanted accommodation for his son, who then
became a medical graduate. It was for his son’s starting a clinic.
Although he won the battle at all tiers the urgently needed eviction still
eluded him like a mirage. The appellant-tenant lost in the trial court,
filed an appeal, and there too he failed. The appeal took three years.
But the tenant had the longest leap, as Gaya Prasad puts it, in the High
Court. He secured a stay and that lasted for 15 years. The High Court
eventually found the tenant’s objection meritless. It nevertheless
granted him six months' time to vacate.
39. The appellant lately discovered that the respondent’s son, for
whom the eviction was sought, joined the Government Service. It was
12 years after the suit was filed. On that premise, the appellant wanted
the High Court to review its order. The High Court, however, refused.
Then, the appellant went to the Supreme Court.
40. In the above factual backdrop, Gaya Prasad has held that “the
crucial date for deciding as to the bona fides of the requirement of the
landlord is the date of his application for eviction.” Then it has
observed:
If every subsequent development during the post-petition period
is to be taken into account for judging the bona fides of the
requirement pleaded by the landlord, there would perhaps be no
end so long as the unfortunate situation in our litigative slow
process system subsists. During 23 years after the landlord moved
for eviction on the ground that his son needed the building,
neither the landlord nor his son is expected to remain idle
without doing any work, lest, joining any new assignment or

starting any new work would be at the peril of forfeiting his
requirement to occupy the building. It is a stark reality that the
longer is the life of the litigation the more would be the number
of developments sprouting up during the long interregnum. If a
young entrepreneur decides to launch a new enterprise and on
that ground he or his father seeks eviction of a tenant from the
building, the proposed enterprise would not get faded out by
subsequent developments during the traditional lengthy
longevity of the litigation. His need may get dusted, patina might
stick on its surface, nonetheless the need would remain intact. All
that is needed is to erase the patina and see the gloss. It is
pernicious, and we may say, unjust to shut the door before an
applicant just on the eve of his reaching the finale, after passing
through all the previous levels of the litigation, merely on the
ground that certain developments occurred pendente lite,
because the opposite party succeeded in prolonging the matter
for such unduly long period.
(italics supplied)
41. Gaya Prasad has held that, to overshadow the genuineness of
the need, the subsequent events must be of such nature and of such a
dimension that the petitioning party’s need should have been
completely eclipsed by such subsequent events. It has eventually held
that
“[T]he judicial tardiness, for which unfortunately our system has
acquired notoriety, causes the lis to creep through the line for
long, long years from the start to the ultimate termini, is a malady
afflicting the system. During this long interval many, many
events are bound to take place which might happen in relation to
the parties as well as the subject matter of the lis. If the cause of
action is to be submerged in such subsequent events on account
of the malady of the system it shatters the confidence of the

litigant, despite the impairment already caused.”
42. In Ramkubai, the landlady filed a civil suit against
respondent-tenant. When the original respondent died, his LRs were
brought on record. The eviction was, among other grounds, bona fide
requirement. The trial Court granted a decree. But the Appellate Court
and the High Court have found that the landlady could not prove the
bona fide requirement. One of the reasons that weighed with the
Appellate Court and the High Court is that when the appellant sued,
her son was unemployed; but later he started working as a contractor in
the construction field. So his need to run kirana shop no longer
subsisted.
43. In the above context, Ramkubai has observed that the
appellant’s son could not be expected to idle away the time by
remaining unemployed untill the case is finally decided. It has already
taken about 25 years. So, it has held that the appellant’s son taking up
the contract work, in the meanwhile, does not militate against his
carrying on the business of kirana, which is his family business.
44. In Sait Nagjee Purushotham, the Supreme Court has noticed
that the landlords have their business spread over Chennai and
Hyderabad. Yet it has observed that it “is always the prerogative of the
landlord that if he requires the premises in question for his bona fide
use for expansion of business this is no ground to say that the landlords
are already having their business at Chennai and Hyderabad therefore,

45. Sait Nagjee Purushotham has emphasised that “it is not the
tenant who can dictate the terms to the landlord and advise him what
he should do and what he should not. It is always the privilege of the
landlord to choose the nature of the business and the place of business.”
But on fact, the Court has refused to interfere with the High Court’s
findings.
46. Finally, I may refer to another important decision from the
Supreme Court. In that case, it has reversed the findings of fact
accepted at the earlier three stages. The judicial overstretch of the
statutory provisions and the improbability of legal interpretation have
compelled the Apex Court to do so.
47. The original landlord filed a suit for eviction on the grounds
of bona fide and reasonable requirement. The respondent-tenant
resisted it. Pending the suit, the original plaintiff died; his heirs were
brought on record. They amended the pleadings. The third legal
representative pleaded that he wanted the leased property for his
starting a grocery business. In that context, he stated that he was
working in Metal box. Co., that there was a lock-out in that company,
that he was finding it difficult to maintain the family, and that he
wanted to improve his livelihood by starting grocery business.
48. The trial Court held that on the original landlord’s death, the
suit abated. On merits, the trial Court held that there was no proof of

lock-out, no proof of capital available for investment, no proof of
preparations for business, and no proof of the third appellant’s having
experience in grocery business. It further held that the lockout did not
put the appellant out of his job permanently; the appellant had not
resigned his job. therefore, the requirement was not bona fide. The
lower appellate Court confirmed the finding on the question of bona
fide requirement but reversed the finding as to abatement. The
appellate Court gave a finding that the tenant had got three other
shops. The appeal was dismissed. The High Court, too, seems to have
accepted the verdict of the courts below. The landlords came up in
appeal to the Supreme Court.
49. In Raghunath G. Panhale v. Chaganlal Sundarji and Co.[10] ,
the Supreme Court has held that the word 'reasonable' connotes that
the requirement or need is not fanciful or unreasonable. It cannot be a
mere desire. The word 'requirement' coupled with the word
‘reasonable’ means that it must be something more than a mere desire
but need not certainly be a compelling or absolute or dire necessity.
The language of the provision, it is held, cannot be unduly stretched or
strained as to make it impossible or extremely difficult for the landlord
to get possession. Raghunath G. Panhale warns that if more limitations
are imposed upon the landlord holding property, it would expose itself
to the vice of unconstitutionality.
10 [] (1999) 8 SCC 1

50. In Rena Drego (Mrs.) v. Lalchand Soni[11], as quoted by
Raghunath G. Panhale, it was observed that in the light of the factual
position in that case, "where the (landlady) says that she needs more
accommodation for her family, there is no scope for doubting the
reasonableness of the requirement." It was held that the circumstances
of the case raised a presumption that the requirement was bona fide
and that "tenant has failed to show that the demand for eviction was
made within any oblique motive". It was held that in the absence of
such evidence by the tenant, the presumption of the bona fide need
stood unrebutted.
51. In the end, Raghunath G. Panhale has observed that
“unfortunately the High Court simply dismissed the writ petition filed
under Article 227 stating that the findings were one of fact. That is
why we think that this is an exceptional case calling for interference
under Article 136 of the Constitution of India.”
(c) The Precedential Summary:
52. Events which take place after an eviction petition under any
Rent Act was filed can be considered until a decree becomes final. To
overshadow the genuineness of the need, the subsequent events must
be of such nature and of such a dimension that the petitioning party’s
need should have been completely eclipsed by such subsequent events.
A person could not be expected to idle away the time by remaining
11 [] [1998] 2 SCR 197

unemployed untill the case is finally decided.
(d) Is an Alternative View Possible?
Courts and Delays:
53. Courts and delays are correlatives; they go together. The
reasons are a legion. They range from infrastructural inadequacies to
insufficient adjudicators to protracted procedures to plain misplaced
priorities. The rule established by the general concurrence of the
Common Law Courts, holds the American Supreme Court in Mitchell
v. Overman[12] , is that where the delay in rendering a judgment or a
decree arises from the act of the court-that is, where the delay has been
caused either for its convenience or by the multiplicity or press of
business, either the intricacy of the questions involved, or of any other
cause not attributable to the laches of the parties-the judgment or the
decree may be entered retrospectively, as of a time when it should or
might have been entered up. Mitchell relies on the maxim actus curiae
neminem gravabit (an act of the court shall prejudice no one), which
has been well said to be founded in right and good sense and to afford a
safe and certain guide for the administration of justice. It holds that the
duty of the court is to see that the parties shall not suffer by the delay. A
nunc pro tunc (Now for then) order should be granted or refused as
justice may require because of the circumstances.
54. In Becker v. King[13] , the District Court of Appeal of Florida
12 [] (103 US 62 (1881)
13 [] 307 So. 2d. 855 (Fla. Dist. Ct. App. 1975) as quoted in

has observed that courts from very ancient times have exercised the
inherent power of entering judgments nunc pro tunc so the rights of a
litigant, who is himself not at fault should not be impaired or lost. The
Black's Law Dictionary quotes the American Federal Civil Procedure to
explain this Latin expression: When an order is signed nunc pro tunc as
of a specified date, it means that a thing is now done which should have
been done on the specified date.
55. Given the enormous and inevitable delays in judicial
adjudication, most of the times, the winner turns out to be the actual
loser. The victory remains hollow: a pyrrhic victory (a victory that is
not worth winning because the winner has lost so much in winning it.
Interim order or no interim order, procedural delays or other reasons,
unless the blame rests on the petitioner, the delay in the court's
disposing the matter should not hurt him. If mere delay with nothing
more were to defeat a person's right, it would only put a premium on
those who take delight in delaying and dragging the proceedings. The
is what Kerala High Court, per me, bemoaned in Sunil Mathew v.
Union of India[14] . It is only an alternative thought, but the
precedential weight pulls me back to the path of judicial propriety.
(d) Has the Landlords’ Need been Totally Eclipsed?
56. The first allegation is that pending the eviction proceedings,
the owners got another tenant evicted, secured possession, and then let
http://www.duhaime.org
14 [] 2017 (4) KLT 597

out that portion to another lessee. The tenants have also contended
that the portion adjacent to theirs was given to one Imran Shaikh. A
photograph is filed. The owners deny this, too. They say the
photograph reveals nothing; it only shows a casual vegetable vendor
squatting over verandah with her wares, though the verandah itself is a
passage. And the third contention is that the owners have open space
still left; they could construct there. Indeed, it is not for the tenants to
say what the owners should do with their vacant land.
57. The tenants assert the owners have kept two rooms adjoining
the tenanted property locked for fifteen years. Had it been so, it would
have been the subject during the trial. That alleged factual aspect
cannot be brought to light at the revisional stage.
58. All these aspects, the owners assert, were known or happened
during the trial or appeal. But they were not pleaded in the manner
permissible. No amendment application was filed before the District
Court. The tenants only filed a document petition and a petition for
additional issues. Nothing more.
59. As the owners’ counsel has submitted, the tenants during the
appeal would surrender one of the two rooms—a half portion of the
tenanted property. So the District Court did frame an issue on that.
Besides it has also framed another issue: Is it necessary to frame the
additional issue and remand the suit to the trial Court?
(e) The Owners’ Position:

60. before the trial court, the fifth plaintiff deposed that they
were four brothers. Two were dead, and two were retired. These four
brothers have many children. One of these children was selling tea and
snacks on the road (in a cart); he has been facing problems because of
traffic regulations and Municipal laws. Another son is running a pan
stall on the road; another a tailoring shop in the house itself; another an
advocate; and many other children are unemployed.
61. The courts below have appreciated the evidence and
concluded on facts that the owners have an expanded family, and their
needs are genuine. It is impermissible for this Court to disturb those
findings of facts in its revisional jurisdiction. The owners, besides
denying these allegations, have contended that all these developments
were said to have taken place when the appeal was pending. But the
tenants did not bring them to that court’s notice. The issue of the
locked rooms had been concurrently rejected by the courts below.
According to them, these pleas are part of the tenants’ delaying
techniques.
62. The alleged later developments, I must note, have not been,
first, properly brought on record—at an appropriate time. Second, at
this stage they cannot be considered; third, there is no clinching
evidence to establish these allegations.
(f) Two of the Owners’ Family Getting Employment:
63. Indeed, the tenants have made heavy weather of this issue.

Indeed, two of the many children in the owners’ family secured
employment. They are many other children, either unemployed or
doing petty businesses. Let us not forget the owners initiated the
eviction proceedings in 1986—over thirty years ago. In this period
someone may be born, brought, and employed. And the one who was
getting educated then, may get employed, and retired. And the one
who was employed then may retire and die away, too.
64. In Dickensian diction, innumerable children may have been
born into the cause; innumerable young people may have married into
it; innumerable old people may have died out of it. The little of the
plaintiffs may have been promised a new toy cycle when the case is
settled, but may have grown up pending the case, possessed a real cycle,
ridden it through his life, and ridden away into the other world. A case
can be perennial but not the life, nor its needs. As it were, courts have
time machines, for cases remain constant decades on end. But not the
clients or causes.
65. True, two of the many children have secured employment.
But that is hardly surprising in three decades and three years. That has
not taken away the owners’ need completely. That development has not
eclipsed their need, so to say.
Suppression of Facts:
66. The tenants have contended that two of the owners’ children
got employment, perhaps, pending the appeal. It was not brought to

the Appellate Court’s notice. It is suppression. At least, the tenants
assert so.
67. S. P. Chengalraya Naidu is the oft-quoted judgment on fraud
and its ramification in the judicial arena. It invokes Chief Justice
Edward Coke’s aphoristic assertion that “Fraud avoids all judicial acts,
ecclesiastical or temporal”. It reiterates that a judgment or decree
obtained by playing fraud on the court is a nullity and non est in the
eyes of the law.
68. As a general rule, suppression of a material fact by a litigant,
according to the Supreme Court[15], disqualifies such litigant from
obtaining any relief. This rule has been evolved out of the need of the
Courts to deter a litigant from abusing the process of Court by
deceiving it. But the suppressed fact must be a material one in the sense
that had it not been suppressed it would have affected the merits of the
case. It must be a matter material for the consideration of the Court,
whatever view the Court may have taken.
69. The owners have a counter allegation: the tenants have
business at another place, too. But they suppressed that fact.
70. At any rate, I see no plea taken in the CA about the
suppression of a material fact: two of the children getting employment.
But it was argued. I reckon among the many children of the owners,
two getting employment in thirty years hardly affects their case
15 [] M/s S.J.S. Business Enterprises (P) Ltd. v. State of Bihar, [2004] 7
SCC 166

prospects. Nor does it amount to a material suppression.
Abatement:
71. Again, there is no plea in the CA about the alleged
abatement. Nor was there any issue in the trial Court. So was the case
with the District Court. The tenants, during the arguments, have
stressed that the proceedings the owners initiated stood abated because
they could not bring all the LRs of the deceased tenants. Let us
examine this.
72. Three of the defendants, that is the defendants 3, 5 and 7,
died pending the suit. The owners did bring on record the legal
representatives (LRs) of the 5th and the 7th respondents. Of the 5th
respondents’ four LRs, respondents 5c and 5d could be served, but not
the other two: respondents 5a and 5b. Then, all the LRs of the 7th
defendants were served. They defended themselves in the suit. But the
LRs of the 3rd respondent could not be brought on record.
73. In Daya Ram v. Shyam Sundari[16], the appellant had
impleaded the heirs of the deceased respondent so far as known to him
but had omitted to bring on record some of the heirs. Their details
were unavailable with him. The question was about the effect of the
appellant’s having omitted to include two of the legal heirs, a son and a
daughter, who admittedly had an interest in the property. The omission
was brought to the court’s notice before the could be heard.
16 [] AIR 1965 SC 1049

74. Noting the impact of Order 22, Rule 4 of CPC, Daya Ram
has observed that where a plaintiff or an appellant after diligent and
bona fide enquiry ascertains who the legal representatives of deceased
defendant or respondent are and brings them on record within the time
limited by law, there is no abatement of the suit or appeal. It has ruled
that if the impleaded legal representatives sufficiently represent the
estate of the deceased, a decision obtained with them on record will
bind not merely those persons impleaded but the entire estate
including those not brought on record. So if one of the legal heirs is on
record, the appeal or suit would not abate.
75. Then, Daya Ram answered another question. It concerns the
effect of omission to include all the known legal heirs, who, admittedly,
had an interest in the property, despite the plaintiff’s knowing about it.
It has answered this query by holding that “there would be no
abatement of the suit or appeal if the estate of the deceased is
sufficiently represented. It has, however, gone ahead and held that
“once it is brought to the notice of the Court hearing the appeal that
some of the legal heirs of the deceased have not been brought on
record, and the appellant is thus made aware of this default on his part,
it would be his duty to bring others on record, so that the appeal could
be properly constituted.” In other words, if the appellant should
succeed in the appeal, it would be necessary for him to bring on record
those representatives whom he had omitted to implead originally.

76. In Parvez Rustom Nekoo, this Court has relied on Daya Ram
and then held that once some of the legal heirs of the deceased are
brought on record, the proceeding does not abate. “[B]ut once the
petitioner is put on notice with respect to the omission on his part to
implead other legal heirs, in that event, it is obligatory on his part to
bring the left-out legal heirs on record.” It has also observed that “[i]t is
not open for any litigant who has the knowledge of other legal heirs to
contend that one of the legal heirs is on record and therefore,
proceeding does not abate. All known legal heirs must be brought on
record.”
77. If we trace back the roots of the case, the present tenants’
common ancestor was the tenant, as was the present owners’ common
ancestor was the landlord. After their death, the families spread. What
was leased out is a business structure: two rooms. In about six or seven
decades, neither family remained constant. And the available tenants
have been brought on record. They are tenants by operation of law;
they have no independent right. So one represents another unless that
another establishes there is a conflict of interest among them. Here a
couple of children of one of the deceased co-tenants not being
impleaded, I am afraid, cannot be fatal.
Conclusion:
Thus, viewed from any perspective, the applicants have failed to
establish that this Court should overturn the concurrent findings by

exercising its revisional jurisdiction under Section 115 of CPC. The case
deserves dismissal, and it is dismissed with costs.
(DAMA SESHADRI NAIDU, J)

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