- (1.) ANJANI Kumar, J. By means of present writ petition under Article 226 of the Constitution of India, the petitioners has challenged the orders passed by the prescribed authority as well as by the appellate authority under the provisions of the U. P. Act No. XIII of 1972, which shall here-in-after referred to as 'the Act'.
(2.) THE brief facts of the present case are that contesting respondent-landlord filed an application on 28th August, 1995 purporting to be an application under Section 21 (1) (a) of 'the Act' for the release of accommodation in question in which the shop in dispute is situated on the ground of bona fide requirement. This application under Section 21 (1) (a) of 'the Act' filed by the respondent-landlord was contested by the petitioner-tenant denying the need set up by the landlord. THE prescribed authority vide order dated 20th January, 1997 allowed the release application filed by the respondent-landlord holding that the need of the landlord is bona fide and in comparison to that of the petitioner-tenant is more pressing. Aggrieved by the order passed by the prescribed authority dated 20th January, 1997, the petitioner filed an appeal on 14th February, 1997 under Section 22 of 'the Act' before the appellate authority. During the pendency of appeal before the appellate authority, the petitioner filed an application on 14th May, 1998 with the prayer that accompanying affidavit be accepted as additional evidence on behalf of the petitioner-tenant. The affidavit which is said to brought on record by the tenant was to the effect that during the pendency of the appeal many facts have been changed, which were not existing earlier at the time when the application under Section 21 (1) (a) of 'the Act' was filed and the application was decided and were also not in the knowledge of the petitioner-tenant. It is further asserted in the aforesaid affidavit that the landlord's son Sandeep got married and started living at New Delhi where he is carrying on his business, therefore, the need set up by the landlord for his son Sandeep is no more in existence and shall not be taken into consideration in view of the changed circumstances and facts. It has further been brought on record by the petitioner-tenant in the aforesaid affidavit that first floor shop in which M/s. Sun Sales Corporation, which is situated above the shop in dispute, has been closed and the shop has been let out to Savey Dryers and Dry Cleaners in which business of dry cleans has been started with effect from 7th December, 1997 i. e. , after the decision of the application by the prescribed authority. The appellate authority vide order dated 5th March, 1999 dismissed the petitioner's aforesaid application numbered as 14- Ga. Thereafter the petitioner-tenant filed an application on 13th May, 1999, which has been numbered as 20-Ga2 to recall the order dated 5th March, 1999. The appellate authority vide order dated 4th September, 1999 rejected the recall application filed by the petitioner- tenant. Aggrieved by the order dated 5th March, 1999 and 4th September, 1999, passed by the appellate authority, the petitioner filed writ petition being civil misc. writ petition No. 54617 of 2000 before this Court. This Court vide judgment and order dated 25th February, 2002 dismissed the writ petition filed by the petitioner with the observation, which is reproduced below : "heard learned Counsel for the parties. This writ petition is directed against the order of the appellate authority thereby refusing to accept the additional evidence sought to be brought on record of the appeal at the appellate stage by the petitioner- tenant. Without entering into the merits of the order passed by the appellate authority, since the petitioner-tenant will have an opportunity to challenge the order impugned in the present writ petition and also in case this appeal is ultimately decided against him by the appellate authority. In this view of the matter, without entering into the merits of the case this writ petition is dismissed at this stage. However, it will always be open to the petitioner-tenant to raise such of the objections as are open to him under law before the appellate authority. There will be no order as to costs. " Pursuant to the direction issued by this Court, the matter was re-opened before the appellate authority. When the matter was re-opened before the appellate authority under the order of this Court in writ petition No. 54617 of 2000, the petitioner prayed before the appellate authority that the changed facts and circumstances which the petitioner-tenant brought by means of affidavit paper No. 14-G, may be taken into consideration and if the same is taken into consideration, the finding recorded by the prescribed authority regarding bona fide need of the respondent-landlord deserves to be set aside. The appellate authority while dealing with the appeal after remand by this Court dealt with this aspect of the matter and observed that "i have gone through the orders of Hon'ble High Court and I am convinced that the intention of the Hon'ble High Court was not to permit, the filing of aforesaid papers at appellate stage, otherwise the Hon'ble High Court would not have dismissed the writ petition. Hon'ble High Court merely allowed the appellant/tenant to raise all legal plea as are open to him under law. But as far as papers, sought to be introduced at the appellate stage are concerned, they cannot be taken into consideration under the aforesaid order of my learned predecessor, as well as directions given by the Hon'ble High Court. " Ultimately the appellate authority vide order dated 24th November, 2003 dismissed the appeal filed by the petitioner-tenant. Thus, this writ petition.
(3.) LEARNED Counsel for the petitioner-tenant submitted that in view of the order passed by this Court in writ petition No. 54617 of 2000, since the appellate authority has dismissed the appeal filed by the petitioner-tenant, he may be permitted to challenge the order passed by the appellate authority refusing to accept the additional evidence at the appellate stage whereby the petitioner prayed for bringing certain new facts which have come to the existence only during the pendency of the appeal before the appellate authority. This Court vide order dated 25th February, 2002 has observed "without entering into the merits of the order passed by the appellate authority, since the petitioner-tenant will have an opportunity to challenge the order impugned in the present writ petition and also in case this appeal is ultimately decided against him by the appellate authority. In this view of the matter, without entering into the merits of the case this writ petition is dismissed at this stage. However, it will always be open to the petitioner-tenant to raise such of the objections as are open to him under law before the appellate authority. " Thus, the main point to be decided by this Court at this stage as to whether the appellate authority was justified in refusing to accept the additional evidence sought to be brought on record regarding certain new facts which have come into existence during the pendency of the appeal before the appellate authority. LEARNED Counsel for the petitioner with regard to this aspect of the matter has relied upon decision of Apex Court reported in 2004 (4) AWC 3709 (SC), Kedar Nath Agrawal (Dead) and Anr. v. Dhanraji Devi (Dead) by L. Rs. and Anr. , wherein the Apex Court has held as under : "16. In our opinion, by not taking into account the subsequent event, the High Court has committed an error of law and also an error of jurisdiction. In our judgment, the law is well settled on the point and it is this : The basic rule is that the rights of the parties should be determined on the basis of the date of institution of the suit or proceedings and the suit/action should be tried at all stages on the cause on action as it existed at the commencement of the suit/action. This, however, does not mean that events happening after institution of a suit/proceeding, cannot be considered at all. It is the power and duty of the Court to consider changed circumstances. A Court of law may take into account subsequent events, inter alia, in the following circumstances : (i) The relief claimed originally has, by reason of subsequent change of circumstances, become inappropriate; or (ii) It is necessary to take notice of subsequent events in order to shorten litigation; or (iii) It is necessary to do so in order to do complete justice between the parties. [re : Shikharchand Jain v. Digamber Jain Prabandh Karini Sabha and Ors. , (1974) 1 SCC 675 : (1974) 3 SCR 101]. In paragraph 30 of Kedar Nath Agrawal's case (supra), the Apex Court has observed as under : "30. We must now refer to Hasmat Rai. As already noted, notice was issued by this Court on October 29, 1999, in view of the decision of this Court in Hasmat Rai. In the said decision, three Judge Bench of this Court held that when eviction was sought on the ground of personal requirement of landlord, such requirement must continue to exist till the final determination of the case. Following the ratio laid down in Pasupuleti Venkateswarlu, Desai J. stated : "it is now convertible 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 also subsist till the final decree or order for eviction is made. If in the meantime, events have crept up which would show that the requirement of the landlord is wholly satisfied, then in that case, his action must fail and in such a situation, it is not incorrect to say that such decree or order for eviction is passed against the tenant, he cannot invite the Court to take into consideration the subsequent events. ";