Kamleshwar Prasad v. Pradumanju Agarwal (Dead) by Lrs.

Judgment

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2576 of 1997. From the Judgment and order dated 17.2.97 of the Allahabad High Court in C.M.W.P. No. 13903 of 1991. Manoj Swamp and Ms. Lalitha Kohli for the Appellant. Ms. Halida Khatoon for the Respondents. The Judgment of the court was delivered by PATTANAIK, J. Leave granted. This appeal by special leave to appeal is directed against the judgment dated 17.2.1997 of the Allahabad High Court dismissing the writ petition filed by the appellant. The respondent-landlord filed a petition for eviction of the appellant under Section 21(1) (a) of the U.P. Act XIII of H A 1972 inter alia on the ground that he bona fide requires the premises for carrying on his own business and he has no other means of livelihood.

The tenantappellant filed objections before the prescrihed authority stating therein that the application for eviction has been filed on false and baseless allegations and in fact the respondent does not need the premises bona B fide for starting his own business. The prescribed authority on consideration of he materials on record came to the conclusion that the landlord docs not require the premises for his own use bona fide. The said prescribed authority also came to the conclusion that the tenant would be comparatively harassed if an order of eviction is passed. With these con- C clusions, the application for eviction having been rejected, the landlord preferred an appeal. The appellate authority re-appreciated the entire evidence on record and reversed the conclusion of the prescribed authority.

The said appellate authority came to the conclusion that in the facts and circumstances of the case the requirement of the landlord to start D a cloth business must be a bona fide requirement entitling him to get an order of eviction under Section 21 (1) (a) of the Act. The appellate authority, therefore, set aside the order of the prescribed authority and directed eviction of the appellant. Being aggrieved by the order of the appellate authority, the tenant carried the matter to the High Court by filing a writ petition. During the pendency of the writ petition in the High E Court the landlord died and was substituted by his legal heirs namely his widow, two sons and the married daughter.

On behalf of the tenant, it was urged before the High Court that the landlord having died, the bona fide requirement which was found to have existed by the appellate authority no more survives, and therefore, taking into consideration the subsequent event the High Court must quash the order of eviction passed by the appellate authority. On behalf of the landlord it was contended that the order of the appellate authority in the eviction proceedings, is a decree and •that decree having become final, in a proceeding under Article 226 of the Constitution, the High Court will not be entitled to take into consideration any subsequent event that had occurred and on that score it would not be appropriate for the High Court to interfere with the decree passed by the appellate authority.

It was also contended that the requirement in question must exist on the day the application for eviction was filed and the same requirement having been found to be established by the competent forum who was required to go into the said question, it is no longer open to the KAMLESH\VARPRASADv. P.AGARWAL[PATIANAfK,J.J High Court to interfere with the said finding in exercise of its supervisory A . jurisdiction under Article 226 of the Constitution. The High Court by the impugned judgment came to the conclusion that the decree fur eviction has become final and the said tinality cannot be disturbed on the applicatiun under Article 226 of the Constitution by taking into account the facts that the original landlord died during the pendency of the writ petition.

Mr. :V1anoj Swarup, learned counsd appearing for the appellant in this Court urg.:d that the person for whos.: bona fide n;quircment the order of eviction has been passed by the appdlate authority having died during the pendency of the writ petition, the said bona fide requirement no longer subsists and consequently the High Court should have taken that fact into C consideration and should have interfered with the order passed by the appellate authority for the eviction of the tenant. The learned counsel further urged that no doubt the proceedings under Article 226 of the Constitution is not a continuation of the eviction proceedings under the Act, but all the same the High Court while exercising its power of supervision under Article 226 of the Constitution is not denuded of its power to take into consideration the subsequent event that had happened which is necessary to be taken into consideration in the interest of justice.

Accordingly, the High Court committed serious error in not taking into account the facts of the death of the landlord for whose bona fide requirement the order of eviction had been passed by the appellate authority, and therefore, E this Court should interfere with the said order of the High Court. Having given an anxious considcT<ttion to the contention raised by the learned counsel for the appellant and under the facts and circumstances of this case we arc of the considered opinion that this case docs not warrant interference by this Court unJer Article 136 of the Constitution. Under the Act the order of the appellate a·rthority is final and the said order is a F decree of the civil court and decree of a competent Court having become fiUdl cannot he intertcred with by the High Court in exerci:,e of its power of superintendence under Articles 226 and 227 of the Constitution by taking into account any subsequ,;nt event which might have happ"ned.

That apart, the fact that tht: landlord needcJ the premises in q ucstion for G starting a business which fact has been found by the appellate authority, in eye of law, it must be that on the day of application for eviction which is the crucial date, the tenant incurred the liability of being evicted from the premises. Even if the landlord died during the pcndcncy of the writ petition in the High Court the bona fide need cannot be said to have lapsed as t hl' business in question can be carried on by his widow or any elder son. In H A this view of the matter, we find no force in the contention of Mr. Manoj Swamp, learned counsel appearing for the appellant and we do not find r any error in the impugned judgment of the High Court warranting interference by this Court under Article 136 of the Constitution. The appeal, accordingly, fails and is dismissed but in the circumstances without any order as to costs. J.N.S. Appeal dismissed. r