Whether the court can pass decree the suit or mould the relief on the basis of reneged compromise?

 In view of the aforesaid, a compromise pursis at

Exh.13 duly signed by the parties to the appeal, was

presented before the first appellate Court on 3/9/2020 with

the following prayer therein :

“The appeal be ordered as withdrawn in terms of

the Compromise and the Decree of R.C.S.

No.119/2015 passed by C.J.S.D. (M.C.A.),

Aurangabad on 9.9.2019 be confirmed as per terms

and conditions of this Compromise and oblige.” {Para 25}

26. Thereafter the Law Officer of the AMC submitted a

pursis dated 15/9/2020, whereunder the AMC reneged on the

compromise pursis. The first appellate Court, therefore, did

not endorse the compromise. The appeal was heard on its

merits and came to be dismissed.

35. The subsequent event of the compromise between

the AMC and the plaintiff firm or concessionaire is a fact not in

dispute. Most of the terms of compromise were executed in

nature. True, some of them were executory. To be specific,

additional FSI was to be granted permitting further

construction. It is also true that, the subject matter of the

present appeal is not the enforcement of the terms of the

compromise.

This Court, relying on decision of the Apex Court

in case of Nidhi (supra), finds that, when the AMC went back

on its promise and it has offered every excuse therefor, this

Court finds that, those facts need not be brought on record by

amending the respective pleadings. This subsequent event is

the admitted fact. The defendant AMC is a local authority. It

has a battery of lawyers on its panel to advice it. True, it has

every authority not to take the compromise terms to logical

conclusion. The Court seized of the present Second Appeal,

however, could not be oblivious to the factum of settlement.

 In the present case, a compromise pursis was

submitted for withdrawal of the appeal. Be that as it may.

This Court is neither endorsing the compromise nor enforcing

the same. The factum of compromise, however, is viewed to

hold the defendant – AMC to have diluted its stand on the

decision of cancelling the lease agreement for illegality

committed by the plaintiff firm and/or its sister concern.

In view of the above, the substantial questions of

law are answered accordingly.

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

SECOND APPEAL NO.335 OF 2022 WITH

CIVIL APPLICATION NO.8534 OF 2022

M/s Shalaka Engineers and JV Vs Aurangabad Municipal Corporation,

CORAM : R. G. AVACHAT, J .

Dated : 22nd December, 2022

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Can the court strike off the entire notice of demolition issued by the Municipal Corporation if only part of the plaintiff's construction is authorized?

 After considering the entire oral and documentary evidence of the parties, the learned Judge came to the correct conclusion that the ground floor being authorized as being in existence prior to the datum line deserves to be protected against demolishing by virtue of its mention in the impugned notice as well as upon the DMC's order calling upon the Plaintiffs to remove the structure under the notice. The learned Judge has, therefore, protected that portion of the Appellants' structure by the order of injunction and partly decreed the Plaintiffs' Suit.{Para 11}

12. The Plaintiffs not having proved the existence of the first floor as having been constructed along with ground floor and after considering oral evidence of the parties showing even earlier litigation where the son of the 1st Plaintiff filed an Affidavit stating that the landlady allowed horizontal as well as vertical extensions to the structure of all the tenants and upon considering the further oral evidence relating to the permission, if any, granted by the landlady in the year 1992-93, the learned Judge correctly came to the conclusion that the construction of the first floor was unauthorized. Hence, the Suit has not been fully decreed. Upon part decree, it follows that the first floor premises of the Plaintiffs is not protected by the order or injunction in the Suit. Hence, this Appeal.

13. It is contended on behalf of the Appellants by Mr. V. A. Thorat, that once even part of the structure is authorized, the entire impugned notice is required to be struck down. He further contends that the notice cannot survive since atleast the ground floor structure of the Appellants' is seen to be authorized and protected by the order of the Trial Judge in the impugned judgment. That contention is incorrect. The Court can mould the relief in respect of any part of the structure and can consider the validity of a part of an order or notice which has been challenged in the Suit. The judgment and order of the Court is required to be on merits of the claim of the Plaintiff. If the Plaintiff succeeds in proving a part of the claim, the Plaintiff is entitled to have his or her Suit partly decreed. (This is more so, if the impugned action is severable as in this case). If the Plaintiff succeeds in proving the entire claim, the entire Suit would be required to be decreed.

15.  In this case, the Plaintiffs claimed that both the ground and first floors were authorised and hence, claimed the reliefs of declaration and protection of their possession. The reliefs could be granted for the ground floor premises which the Plaintiffs proved to be authorised, but could not be granted for the first floor premises which the Plaintiffs could not prove to be authorised. Upon proof of a part of the suit structure as authorized, the entire notice, therefore, cannot be struck down, just as upon not proving a part of the claim of the Plaintiffs, the entire suit cannot be dismissed. The judgment of the learned Trial Judge is, therefore, correct. No prejudice to the Appellants despite merits of their case is shown. For whatever the Plaintiffs merited, the learned Judge has granted the injunction. Part of the structure, for which no merits were shown, the learned Judge could not have and has not granted any reliefs to the Plaintiffs. The impugned judgment and order is correct.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

R.S. DALVI, J.

Pushpaben Mulji Kothari & Ors.Vs.Municipal Corporation Of Gr. Mumbai & Ors.

First Appeal No.198 of 2007

11th June, 2007

Citation:  2007(5) ALL MR 73,2007(5) MHLJ 712

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Whether the court can mould relief in revision proceeding considering the subsequent event?

What is urged is that only an appeal is a continuation of a suit while revision is not. There cannot be any demur to the legal proposition as such. However, I am of the view that where the right to sustain the application is no longer available to Murugan Bus Service, different considerations will arise irrespective of the fact that the jurisdiction that is exercised is appellate jurisdiction or revisional. In other words, if the lis is kept pending, that would enough for the court to interfere. If it were some other matter perhaps, one may not very much worry in exercising revisional jurisdiction. But here as I have stated above, the right to sustain the application on certain stated qualifications having disappeared, can it be said that because of this High Court exercising revisional jurisdiction and because it concerns itself under S. 115 C.P.C. with the jurisdiction exercised by the Tribunal or lower authority, it should shut its eves? I do not think so. The power of revision is a limited one, in comparison to the appellate power. Barring that there is no point in saying that under revisional powers, the subsequent events cannot be taken note of. Such an extreme argument will render the revisional power absolutely nugatory. In shankar v. Krishnaji MANU/SC/0456/1969 : [1970]1SCR322 , it has been categorically held that the power under S. 115 C.P.C is a valuable power which is exercised by the High Court as a superior Court. Therefore the right to sustain the application must survive at any stage of the order. In fact, Alagirirswami J. (as he then was) in a ruling reported in Abdul Rahiman v. Abdulla (1967) 80 MLW 54, which comes under the Madras Buildings (Lease and Rent Control) Act, took note of an even that took place during the revisional stage and granted the relief. this exactly is the purport of the ruling in P.Venkateswarlu v. Motor and General Traders, MANU/SC/0415/1975 : [1975]3SCR958 . that case also related to A.P.Buildings (Lease Rent and Eviction) Control Act. Krishna Iyer J. speaking for the court, said as follows ( at p.1410) -

"We feel the submissions devoid of substance. First about the jurisdiction and prosperity vis-a-vis circumstances which come into being subsequent to the commencement of the proceedings. It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceedings. Equally clear is the principle that procedure is the hand-maid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inapt the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fair play is violated, with a view to promote substantial justice subject, of course to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial court. If the litigation ponds, the power exists, absent other special circumstances repelling resort to that course in law or justice. rulings on this point are legion, even as situations for applications of this equitable rule are myriad. We affirm the proposition that for making the fight or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the court can and in many cases must, take cautious cognizance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed. On both occasions the High Court, in revision, correctly took this view. the later recovery of another accommodation by the landlord, during the pendency of the case has as the High Court twice pointed out, a material bearing on the right to evict, in view of the inhibition written into S. 10(3)(iii) itself. We are not disposed to disturb this approach in law or finding of fact.

Therefore, if a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the court, it cannot blink at it or be blind to events which stultify or render inapt the decretal remdey. I should think that equity and justice demand my taking note of these events especially when by reason of these events, the original grantee Murugan Bus Service loses all the qualification to the a transport operator.

 IN THE HIGH COURT OF MADRAS

C.R.P. No. 1535 of 1980

Decided On: 17.09.1982

 A.M.V. Jayaraman Vs.  Murugan Bus Service and Ors.

Hon'ble Judges/Coram:

S. Mohan, J.

Citations: AIR 1983 Mad 210,MANU/TN/0377/1983,1982SCCONLINE Mad 138

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Whether bonafide need of landlord should subsist till passing of eviction decree?

If a landlord bona fide requires possession of a premises let 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 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 n 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 to show that the subsequent events disentitled the plaintiff, on the only ground that here is tenant against whom a decree or order for 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 the decree or order has become final in the sense that it is not open to further adjudication by a court or hierarchy 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 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 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 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 subsequent 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.

Therefore 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 the appellate decree, or the date when a higher court deals with the matter. During the progress and passage 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 speaking for the Court observed as under :

We affirm the proposition that for making the right or remedy claimed by the party just and meaningfully as also legally and factually in accord with the current realities, the court can, and in many cases must, take cautions cognisance of events and development subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously observed.

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 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 the Trial Court for fresh disposal in accordance with certain directions. The landlord preferred a revision petition against the order of remand by the first appellate court. The High Court dismissed the action of the landlord taking cognisance of a subsequent event namely that the landlord acquired possession of a reasonable suitable non-residential building in the same town. In 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 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 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 Taramal's case must be taken to have been overruled and it could not be distinguished only on the ground that the definition of 'tenant' in the Madhya Pradesh Act is different from the one in Andhra Pradesh 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.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1108 of 1976.

Decided On: 28.04.1981

 Hasmat Rai  Vs. Raghunath Prasad

Hon'ble Judges/Coram:

D.A. Desai, R.S. Pathak and E.S. Venkataramiah, JJ.

Citation: (1981)3 SCC 103,AIR 1981 SC 1711.

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Whether terms of lease can be proved on basis of unregistered lease agreement?

The defendants have nowhere admitted that the lease was for a specific term of nine years. On the contrary, they have pleaded that they were tenants holding over under Section 116 of the Transfer of Property Act. The unregistered draft lease agreement Ex. B-2 was clearly inadmissible in evidence under Section 49 of the Registration Act, except for the collateral purpose of proving the nature and character of possession of the collateral purpose of proving the nature and character of possession of the defendants. The documents Ex. B-2 was admissible under the proviso to Section 49 only for a collateral purpose of showing the nature and character of possession of the defendants. The proviso to Section 49 was however not applicable in the present case inasmuch as the terms of a lease are not a "collateral purpose" within its meaning. It follows that the unregistered draft lease agreement Ex. B-2 was inadmissible in evidence to prove the transaction of lease. It was also ineffectual to create a valid lease for a renewed term of nine years for want of registration as required under Section 17(1)(d) of the Registration Act.
IN THE SUPREME COURT OF INDIA

C.A. No. 10041 of 1983

Decided On: 27.10.1998

Satish Chand Makhan  Vs.  Govardhan Das Byas 

Hon'ble Judges/Coram:
A.P. Sen and E.S. Venkataramiah, JJ.
Citation: AIR 1984 SC 143

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Whether court should consider subsequent event in favour of landlord to grant him eviction decree on ground of bonafide need?

 We have no doubt that the crucial date for deciding as to the bonafides of the requirement of the landlord is the date of his application for eviction. The antecedent days may perhaps have utility for him to reach the said crucial date of consideration. If every subsequent development during the post petition period is to be taken into account for judging the bonafides 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.

 Acquisition of accommodation during pendency of lis by landlord may satisfy his additional needs of growing family and merely because such needs have not been pleaded in the eviction proceedings initially started, they could not be ignored. A review of the authorities cited, requires that all subsequent events should be noted and not only those, which favour a tenant. Therefore, the need of landlord's son in this case, who is 66 years old, too would qualify for being considered as a subsequent event, just as the death of his parents.

IN THE HIGH COURT OF BOMBAY AT GOA

Writ Petition No. 799 of 2016

Decided On: 08.03.2018

 Gurudas Yeshwant Pednekar Vs. Sharada and Ors.

Hon'ble Judges/Coram:

Nutan D. Sardessai, J.

Citation: 2018(6) MHLJ 605

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Leading judgment of Supreme court on interim mandatory injunction and moulding of relief

 That apart, the learned Single Judge as well as the Division Bench have committed fundamental error in applying the principle of moulding of relief which could at best be resorted to at the time of consideration of final relief in the main suit and not at an interlocutory stage. The nature of order passed against the appellant is undeniably a mandatory order at an interlocutory stage. There is marked distinction

between moulding of relief and granting mandatory relief at an interlocutory stage. As regards the latter, that can be granted only to restore the status quo and not to establish a new set of things differing from the state which existed at the date when the suit was instituted.This Court in Dorab Cawasji Warden Versus Coomi Sorab Warden and Others,2 has had occasion to consider the circumstances warranting grant of interlocutory mandatory injunction. In paragraphs 16 & 17, after analysing the legal precedents on the point as noticed in paragraphs 11-15, the Court went on to observe as follows:

“16. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are: (1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.

2 (1990) 2 SCC 117

(2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.

(3) The balance of convenience is in favour of the one seeking such relief.

17. Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive nor complete or absolute rules, and there may be exceptional circumstances needing action, applying them as prerequisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion.”

(emphasis supplied)

25. The Court, amongst others, rested its exposition on the dictum in Halsbury‟s Laws of England, 4th edition, Volume 24, paragraph 948, which reads thus:

“A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court thinks ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied, or if the defendant attempts to steal a march on the plaintiff, such as where, on receipt of notice that an injunction is about to be applied for, the defendant hurries on the work in respect of which complaint is made so that when he receives notice of an interim injunction it is completed, a mandatory injunction will be granted on an interlocutory application.”

26. The principle expounded in this decision has been consistently followed by this Court. It is well established that an interim mandatory injunction is not a remedy that is easily granted. It is an order that is passed only in circumstances which are clear and the prima facie material clearly justify a finding that the status quo has been altered by one of the parties to the litigation and the interests of justice demanded that the status quo ante be restored by way of an interim mandatory injunction. (See Metro Marins and Another Versus Bonus Watch Co. (P) Ltd. and Others3, Kishore Kumar Khaitan and Another Versus Praveen Kumar Singh4 and Purshottam Vishandas Raheja and Another Versus Shrichand Vishandas Raheja (Dead) through LRS. and Others5)

27. In the factual scenario in which mandatory order has been passed against the appellant, in our opinion, is in excess of jurisdiction. Such a drastic order at an interlocutory stage ought to be eschewed. 

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7079 OF 2018

(Arising out of SLP (Civil) No.18465/2018)

Samir Narain Bhojwani Vs M/s. Aurora Properties and Investments

and Anr.

Dated:August 21, 2018.

A.M. Khanwilkar J,
Citation:  2018 (5) Bom.C.R. 731 : 2018 (5) RAJ 243 : 2018 (10) Scale 33 

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Whether Principle Of Moulding Of Relief Can Be Invoked At Interlocutory Stage?

That apart, the learned Single Judge as well as the Division Bench have committed fundamental error in applying the principle of moulding of relief which could at best be resorted to at the time of consideration of final relief in the main suit and not at an interlocutory stage. The nature of order passed against the appellant is undeniably a mandatory order at an interlocutory stage. There is marked distinction

between moulding of relief and granting mandatory relief at an interlocutory stage. As regards the latter, that can be granted only to restore the status quo and not to establish a new set of things differing from the state which existed at the date when the suit was instituted. This Court in Dorab Cawasji Warden Versus Coomi Sorab Warden and Others,2 has had occasion to consider the circumstances warranting grant of interlocutory mandatory injunction. In paragraphs 16 & 17, after analysing the legal precedents on the point as noticed in paragraphs 11-15, the Court went on to observe as follows:

“16. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are: (1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.

2 (1990) 2 SCC 117

(2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.

(3) The balance of convenience is in favour of the one seeking such relief.

17. Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive nor complete or absolute rules, and there may be exceptional circumstances needing action, applying them as prerequisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion.”

(emphasis supplied)

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7079 OF 2018

(Arising out of SLP (Civil) No.18465/2018)

Samir Narain Bhojwani Vs M/s. Aurora Properties and Investments

and Anr.

Dated:August 21, 2018.

A.M. Khanwilkar J,
Citation:  2018 (5) Bom.C.R. 731 : 2018 (5) RAJ 243 : 2018 (10) Scale 33 

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When court can take note of subsequent events occurred during pendency of suit?

Ordinarily, rights of the parties stand crystallised on the date of institution of the suit. However, the court has power to take note of the subsequent events and mould the relief accordingly. Power of the court to take note of subsequent events came up for consideration in a number of decisions. In Om Prakash Gupta v. Ranbir B. Goyal MANU/SC/0035/2002 : (2002) 2 SCC 256, this Court held as under:

11. The ordinary Rule of civil law is that the rights of the parties stand crystallised on the date of the institution of the suit and, therefore, the decree in a suit should accord with the rights of the parties as they stood at the commencement of the lis. However, the Court has power to take note of subsequent events and mould the relief accordingly subject to the following conditions being satisfied: (i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted; (ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; and (iii) that such subsequent event is brought to the notice of the court promptly and in accordance with the Rules of procedural law so that the opposite party is not taken by surprise. In Pasupuleti Venkateswarlu v. Motor & General Traders MANU/SC/0415/1975 : (1975) 1 SCC 770 this Court held that a fact arising after the lis, coming to the notice of the court and having a fundamental impact on the right to relief or the manner of moulding it and brought diligently to the notice of the court cannot be blinked at. The court may in such cases bend the Rules of procedure if no specific provision of law or Rule of fair play is violated for it would promote substantial justice provided that there is absence of other disentitling factors or just circumstances. The Court speaking through Krishna Iyer, J. affirmed the proposition that the court can, so long as the litigation pends, take note of updated facts to promote substantial justice. However, the Court cautioned: (i) the event should be one as would stultify or render inept the decretal remedy, (ii) Rules of procedure may be bent if no specific provision or fair play is violated and there is no other special circumstance repelling resort to that course in law or justice, (iii) such cognizance of subsequent events and developments should be cautious, and (iv) the Rules of fairness to both sides should be scrupulously obeyed.
Om Prakash Gupta's case was referred with approval in Ram Kumar Barnwal v. Ram Lakhan (Dead) MANU/SC/7670/2007 : (2007) 5 SCC 660.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1008 of 2017 (Arising out of Special Leave Petition (C) No. 19117 of 2013)

Decided On: 07.02.2017

 Nidhi Vs. Ram Kripal Sharma (D) thr. L.Rs.

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Whether landlady will not be entitled to eviction decree if she is married subsequently?

 In the facts of present case, the Appellant-landlady herein was living in a small house with her family comprising four members and was not able to accommodate her ailing grandparents who used to visit them frequently for medication purposes and were willing to reside with them permanently as they were living alone in their village where nobody was there to look after them. Appellant in order to accommodate her grandparents with them and in the light of growing needs of her and her younger sister (who were then studying) filed the release application before the prescribed authority and the release order was granted by the prescribed authority in favour of the Appellant/landlady directing Respondent-tenant to handover vacant possession of suit premises to the Appellant. As noticed earlier, during the pendency of appeal, preferred by the Respondent-tenant, the Appellant got married and settled with her husband. The first appellate court as well as the High Court took note of this as subsequent development and held that the requirement no longer subsists and the claim of personal requirement has disappeared. Of course, during the pendency of lis between the parties, situation underwent a change and the Appellant got married to an Indian Revenue Service Officer and started residing with him in Delhi and Mumbai etc. Though the Appellant is married and settled with her husband, her bona fide requirement cannot be said to have ended as she wanted the premises not just for herself but to accommodate her parents and grandparents in the suit premises so that they can live together. The family of the Appellant is still said to be residing in rented premises in Moradabad, despite having their own suit premises to reside in. In the facts of present case, the change in subsequent events is not such that would deprive the Appellant of her right to vacant possession of suit premises as it is a natural event that the daughter of the house would get married and settle with her husband. Though the Appellant has got married and shifted to different accommodation with her husband, the actual bona fide requirement of premises is still the same, since her parents and grandparents are still residing separately from each other with no one to look after them. More so, the Appellant got married but the family stays where it is and the bona fide requirement of premises for accommodation of parents remains the same. Being married and shifting to other place does not automatically result in extinguishing of bona fide requirement of the Appellant as being the owner of property, she alone is to decide what she wants to do with her property.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1008 of 2017 (Arising out of Special Leave Petition (C) No. 19117 of 2013)

Decided On: 07.02.2017

 Nidhi Vs. Ram Kripal Sharma (D) thr. L.Rs.

Hon'ble Judges/Coram:
Dipak Misra and R. Banumathi, JJ.
Citation: (2017) 5 SCC 640

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When court can take notice of subsequent events?

Ordinarily, a suit is tried in all its stages on the cause of action as it existed on the date of its institution. But it is open to a Court (including a court of appeal) to take notice of events which have happened after the institution of the suit and afford relief to the parties in the changed circumstances where it is shown that the relief claimed originally has (1) by reason of subsequent change of circumstances become inappropriate, or (2) where it is necessary to take notice of the changed circumstances in order to shorten the litigation, or (3) to do complete justice between the parties (See Rai Charan Mandal and another v.. Biswanath Mandal and others).

Supreme Court of India

Shikharchand Jain vs Digamber Jain Praband Karini ... on 11 January, 1974

Equivalent citations: 1974 AIR 1174, 1974 SCC (2) 215

BENCH:
BHAGWATI, P.N.
PALEKAR, D.G.
KRISHNAIYER, V.R.

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Whether sub tenant can oppose eviction suit on ground of bonfide requirement?

Thus, the present appellant having no privity of tenancy with the plaintiff, it is not open to him to challenge the plaintiff's suit for eviction on ground of bonafide requirement. He having been impleaded merely as a sub-tenant was and is entitled to oppose the suit only on ground of sub-tenancy.

IN THE HIGH COURT OF MADHYA PRADESH (GWALIOR BENCH)

Decided On: 15.01.2010

Harveer Singh and Subalal (Deceased) through his L.Rs.

Vs.

 Shri Kishan Singh Tomar and Ors.

Citation: 2010(2) RCJ 21

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Whether court can grant smaller relief even though larger reliefs are claimed by parties?

Insofar as the submission of the learned counsel for the

defendant that the plaintiffs could not have applied for recovery of

possession of the entire property without impleading the other parties,

who were in possession of the suit property and thus the suit was

bad for non-joinder of necessary parties is concerned, in my view,

even if the plaintiffs had prayed for larger reliefs, the Court has ample

power to mould the reliefs and grant smaller relief.

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

 CIVIL APPELLATE JURISDICTION

SECOND APPEAL NO.197 OF 2013

WITH

CIVIL APPLICATION NO.526 OF 2013

Shri Shaikh Mustafa Yasin

V

Shri Sharad Ganesh Tisgaonkar

 CORAM : R.D. DHANUKA, J.

 Dated : 13TH OCTOBER, 2016

Citation: 2017(1) MHLJ 358

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How to mould relief if there is infringement of copyright on internet?

 On the question of what relief would be practical, the Division Bench by its order dated 06.03.2009 had directed SCIL to supply a list of its works to MySpace, which it would remove within one week of receipt of notice. Perhaps the Division Bench was more mindful of technological constraints as well as the notice and take down mechanism considering the order was made before the amendment to the IT Act which introduced safe harbor provisions only in October 2009. The Court is conscious of the fact that under the current system, MySpace hosts several hundreds and thousands of videos, which is only growing every single day. Without a notice containing the details and location of the exact works in which infringement is complained of, MySpace cannot be expected to scan through such large number of videos to discern infringement. This is not only impractical but also dangerous for reasons discussed previously. A vague order of injunction against works which are yet to exist is not only contrary to law but also impossible to monitor. Therefore, SCIL cannot give vague and general lists of its works but will have to give notice with specific details as well as locations of the works, which the appellant shall remove within 36 hours of receiving such notice.

67. Despite the lengthy analysis and reasoning, a fundamental aspect overlooked by the learned Single Judge is the peculiarity of the Internet intermediary industry. The Internet industry often coined the term "fastest growing industry" enabling access and innovations at an exponential rate. In cases like these, the Court has to appreciate that relief should be sound and practical, not far-reaching and momentous in regard to policy and growth of trade or information dissemination. Such care is warranted where interim orders in respect of liabilities are yet to be ascertained and claims tried. Whilst in other areas of law like property or contracts, the enforcement mechanism has remained relatively unchanged, enforcement under the technology regime, because its very nature is different. It is these considerations, which the court has to keep in mind while granting relief. Apart from avoidable prolixity and attendant imprecision in the impugned  judgment (which a reader may perhaps justifiably complain about this judgment as well) the width of the directions has resulted in what was colourfully described by the US Supreme Court in Reno v American Civil Liberties Union 521 US 244,as ―to burn the house to roast the pig‖ (i.e a disproportionate response, or a remedy worse than the disease). The court has - as always to tread a delicate balance between the Scylla of over protection (of intellectual property and privileging it in an overbearing manner) and the Charybdis of ineffective or under-protection, of IP rights: both of which chill and kill creativity, in the final analysis, harmful to society.

68. To summarize the conclusions, it is held as follows

(a) Sections 79 and 81 of the IT Act and Section 51(a)(ii) of the Copyright Act have to be read harmoniously. Accordingly, it is held that proviso to Section 81 does not preclude the affirmative defence of safe harbor for an intermediary in case of copyright actions.

(b) Section 51(a)(ii), in the case of internet intermediaries contemplates actual knowledge and not general awareness. Additionally, to impose liability on an intermediary, conditions underSection 79 of the IT Act have to be fulfilled.

(c) In case of Internet intermediaries, interim relief has to be specific and must point to the actual content, which is being infringed.

In light of the above discussion impugned order of the learned Single Judge is set aside and is substituted with the following relief:

(i) The plaintiff Super Cassettes shall provide an updated catalogue of "specific" works in which it holds copyright along with the location/ URL of such work on the appellant Myspace‟s website to the appellant as and when SCIL detects infringement.

(ii) On receiving such notice from the plaintiff SCIL, the appellant/MySpace shall within 36 hours remove/ block access to such content, in accordance with Rule 3 (4) of the Intermediary Guidelines Rules of 2011.

(iii) MySpace shall also keep an account of all such content removed pursuant to such requests as well as other details such as the number of viewings (wherever mechanisms exist to track such action) of such content, till it is removed, the advertisement revenue earned from it (proportionately) etc to enable calculation of damages, at the trial stage.

Delhi High Court

My Space Inc. vs Super Cassettes Industries Ltd. on 23 December, 2016

Read full judgment; Click here 

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Whether Industrial tribunal can mould relief or grant relief which a party is entitled to in equity and justice?

 It is one thing to say that the court interprets a provision of a statute and lays down a law, but it is
another thing to say that the courts although exercise plenary jurisdiction will have no discretionary power
at all in the matter of moulding the relief or otherwise give any such reliefs, as the parties may be found to
be entitled to in equity and justice. If that be so, the court's function as court of justice would be totally
impaired. Discretionary jurisdiction in a court need not be conferred always by a statute.
 Order VII, Rule 7 of the Code of Civil Procedure confers power upon the court to mould relief in a
given situation. The provisions of the Code of Civil Procedure are applicable to the proceedings under the
Industrial Disputes Act. Section 11A of the Industrial Disputes Act empowers the Labour Court, Tribunal
and National Tribunal to give appropriate relief in case of discharge or dismissal of workmen.
Equivalent Citation: AIR2006SC586, 2006(1)AWC667(SC), [2006(108)FLR201], JT2005(10)SC344, (2006)ILLJ496SC,
(2006)1SCC479, 2006(2)SLJ327(SC)
IN THE SUPREME COURT OF INDIA
Civil Appeal No. 7304 of 2005 [Arising out of S.L.P. (C) No. 14945 of 2004]
Decided On: 08.12.2005
Appellants: U.P. State Brassware Corpn. Ltd. and Anr.
Vs.
Respondent: Udai Narain Pandey
Hon'ble Judges: S.B. Sinha and P.K. Balasubramanyan, JJ.

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When appellate court can take note of subsequent event which will have fundamental impact on relief claimed?

 It was further contended by defendant Nos. 1 to 6
that even on the date of execution of Agreement of
Sale their mother was very much alive and, therefore
in the absence of execution of Agreement of Sale by
all the seven co-sharers of the suit schedule
property the suit for specific performance does not
lie. The learned counsel for the defendants placed
reliance on the decisions of Andhra Pradesh High
Court and this Court in the cases of Kommisetti
Venkatasubbayya v. Karamestti Venkateswarlu 
 A.I.R. 1971 AP 279 and
Lourdu Mari David & Ors. v. Louis Chinnaya
Arogiaswamy & Ors. (1996) 5 SCC 589 in support of their claim.
20. Further, they placed reliance upon the case of
this Court in Rameshwar & Ors. v. Jot Ram & Anr. 
(1976) 1 SCC 194Page 11
In the said authority it has been held as follows:
“9…First, its bearing on the right of
action, second, on the nature of the
relief and third, on its impotence to
create or destroy substantive rights.
Where the nature of the relief, as
originally sought, has become obsolete or
unserviceable or a new form of relief will
be more efficacious on account of
developments subsequent to the suit or
even during the appellate stage, it is but
fair that the relief is moulded, varied or
reshaped in the light of updated facts.
Patterson illustrates this position. It is
important that the party claiming the
relief or change of relief must have the
same right from which either the first or
the modified remedy may flow. Subsequent
events in the course of the case cannot be
constitutive of substantive rights
enforceable in that very litigation except
in a narrow category (later spelt out) but
may influence the equitable jurisdiction
to mould reliefs. Conversely, where rights
have already vested in a party, they
cannot be nullified or negated by
subsequent events save where there is a
change in the law and it is made
applicable at any stage. Lachmeshwar
Prasad Shukul v. Keshwar Lal Chaudhuri
falls in this category. Courts of justice
may, when the compelling equities of a
case oblige them, shape reliefs — cannot
deny rights — to make them justly relevant
in the updated circumstances. Where the
relief is discretionary, courts may
exercise this jurisdiction to avoid
injustice. Likewise, where the right to
the remedy depends, under the statute
itself, on the presence or absence of
certain basic facts at the time the relief
is to be ultimately granted, the Court,
even in appeal, can take note of such
supervening facts with fundamental
impact…”
 (Emphasis supplied)
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7835 OF 2014
(Arising out of SLP(C) NO. 24653 OF 2012)
PEMMADA PRABHAKAR & ORS
Vs.
YOUNGMEN’S VYSYA ASSOCIATION & ORS. …
V.GOPALA GOWDA, J.
Citation;(2015)5 SCC355

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Whether party can ask court to mould relief to take advantage of his own wrong?

 Further, it is urged by the learned senior Counsel on behalf of Appellant-Company that there is no question of reinstatement of the concerned workmen and payment of back wages to them since the concerned department/unit of the Appellant-Company in which they were employed no longer exists and therefore, requested this Court to mould the relief granted by the courts below. The said contention is rightly rebutted by the learned senior Counsel on behalf of the Respondent-Union by placing reliance on the case of Workmen of Sudder Workshop (supra), wherein this Court held that the Court cannot sympathise with a party which gambles in litigation to put off the evil day, and when that day comes, prays to be saved from its own gamble. The said contention urged on behalf of the Respondent-Union must be accepted by us as the same is well founded. Therefore, we hold that moulding of the relief is not permissible in this case at this stage when the matter has reached this Court keeping in mind the legal principle laid down by this Court on this aspect of the matter in the case referred to supra.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5319 OF 2008
MACKINON MACKENZIE & COMPANY LTD.
V
MACKINNON EMPLOYEES UNION

Citation;AIR2015SC1373, (2015)4SCC544, 
Coram:
V. GOPALA GOWDA, J.

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When court can grant larger relief than claimed without amending plaint?

 Two other points remain. In Suit No. 483 of 1942, Shahid Ali claimed that he was entitled to a one-tenth share of the income of the 'waqf' property in the two waqf deeds executed by Amna Bibi. According to the allegations in paragraph 4 of the plaint there were eight lineal descendants of Shah Qayamuddin on the date of the death of Mohammad Ali but on the date of the suit there were ten such heirs and he claimed that he was entitled to a one-tenth share. The fact that there were eight male lineal descendants on the date of the death of Mohammad Ali and ten on the date of suit was admitted by the defendant but the defendant did not admit that Shahid Ali had a one-tenth share. The lower courts took the view that on a correct interpretation of the waqf deeds Shahid Ali had a one-fourth share and not a one-tenth share. The reason why he claimed a one-tenth share is not difficult to see. He had four sons while the other members of the family had only one son each.

If his interpretation had been accepted then between him and his four sons he would have got either a half share or five-eighths share of the entire income. Learned counsel for the defendant has urged that the plaintiff having alleged that he had a one-tenth share in the income the lower courts erred in giving him a decree for a one-fourth share. The relief claimed, however, to avoid valuing the suit properly and paying the proper court-fee, was for rendition of accounts and for payment of such amount as was found due after accounting. Hence the relief was so worded that it cannot be said that the relief claimed was for only a one-tenth share of the income. The issues framed by the trial court were :

"(1) Is the plaintiff Shahid Ali entitled to any share in the income of the properties in the deeds of waqf in suit?

(2) If so, to what share is he entitled?"

If the allegations in the plaint had been admitted by the defendant, the parties having agreed, it would not be open to the Court, without having the pleadings amended, to give the plaintiff a decree for more than one-tenth. Here, however, the allegation in the plaint was not admitted. The issue was in general terms and the court, on an interpretation of the 'waqf' deed, came to the conclusion that Shahid Ali had a one-fourth share. Neither the valuation of the suit nor the amount payable as court-fee would need any change to grant the plaintiff a decree for a larger share. In the circumstances we feel that to bind the plaintiff down to a one-tenth share when, on a correct interpretation of the 'waqf' deed, he is entitled to a one-fourth share will not be just.

 Relief - Order 7, Rule 7 of Code of Civil Procedure, 1908 - relief claimed 1/10th share of income of waqf property - allegation not admitted by defendant - Plaintiff found entitled to 1/4th share - decree for 1/4th without amending plaint can be given.

Allahabad High Court

Maqsood Ali vs Zahid Ali Sabzposh on 13 November, 1953

Equivalent citations: AIR 1954 All 385

Bench: Malik, V Bhargava

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