R. P. Singh, J. - (1.) -
(2.) BY means of this writ petition under Article 226 of the Constitution, the petitioner has challenged the order parsed by the Additional District Judge, dated 10-8-1987. dismissing the appeal and upholding the order passed by the Munsif, Kanpur Nagar, Kanpur, dated 30-5-1987, rejecting the application of the petitioner for permanent injunction restraining the respondents from evicting the petitioner from the accommodation in dispute. Brief facts of the case are that the petitioner was a tenant of premises no. 122/226 Sarojini Nagar, Kanpur on a monthly rent of Rs. 160/-per month. During the continuance of the tenancy, the petitioner's wife Smt. Surjeet Kaur acquired premises no. J-32, Vasant Behar, Naubasta, Kanpur and since the petitioner's wife acquired the said premises in a vacant state jn the same city, accommodation in dispute was deemed vacant under section 12 (3; of U. P. Act 13 of 1972, hereinafter referred to as the Act, and hence the respondent no. 3 Ram Murti Tandon, the landlord, filed an application for the release of the disputed accommodation under section 16 of the Act on 29-8-1983. Initially the release application of the respondent no. 3 was rejected and the disputed accommodation was allotted to one Sardar Bhupendra Singh but on a revision filed by respondent no. 3, the revision was allowed, the order of allotment in favour of Sardar Bhupendra Singh was set aside and the disputed accommodation was released in favour of the landlord, respondent no. 3 in the case. Feeling aggrieved the petitioner filed a writ petition before this Court which was numbered as writ petition no. 7621 of 1985 and was dismissed on 22-8-1985 by this Court and on an undertaking given by the learned counsel for the petitioner that the petitioner shall hand over and give vacant possession of the accommodation in dispute after one year, the petitioner was allowed one year's time to deliver vacant and peaceful possession of the disputed accommodation to the respondent no. 3. It would be relevant here to quote the order passed by this Court while dismissing the writ petition on 22-8-1985 as the controversy in the case rests on the interpretation of the order passed by this Court. The order runs as follows :- " Heard counsel for the parties. There is no error apparent on the face of record. Dismissed. Sri R. P. Asthana, learned counsel on behalf of the petitioner stated that in case if the petitioner is compelled to shift from the premises in dispute he shall suffer irreparable injury as at present he has no other alternative accommodation in his possession. He has given an undertaking on behalf of the petitioner that he shall give peaceful and vacant possession to respondent no. 3 after one year. In view of the statement made by the learned counsel for the petitioner and also in view of the undertaking given by him the petitioner shall not be ejected from the premises in dispute for a period of one year from today. It is however, made clear that the petitioner shall not induct any one during this time in the premises in dispute. The petitioner shall further pay to the respondent no. 3 damages at the rate of Rs. 160/- by 7th of each month. Sd/- V. N. K. 22-8-85. " After the dismissal of the petitioner's writ petition by this Court on 22nd August, 1985 and on an undertaking given on behalf of the petitioner, the petitioner having been allowed one year's time to vacate and hand over peaceful possession of the accommodation in dispute, the petitioner's wife sold the premises no. J-32 Vasant Behar, Naubasta, Kanpur on 3-12-1985 and then the petitioner moved an application on 25-8-1986 under section 16 (5) of the Act for reviewing the order declaring vacancy on the ground that after the house no. J-32, Vasant Behar was sold away by the petitioner's wife, the deemed vacancy which had been created on account of the acquisition of said property, had ceased to exist. The review application was, however, rejected by the Rent Control and Eviction Officer on 28-2-1987. While the proceedings for review of the release order were going on the petitioner instituted a suit for permanent injunction on 28-10-1986 in which he obtained an ex parte injunction but later the suit was dismissed by the Munsif on 28-3-1987 and the ex parte injunction was vacated. On appeal, the suit was remanded back to the learned Munsif by the Additional District Judge and now the petitioner moved an application for temporary injunction restraining the respondents from dispossessing the petitioner in pursuance of the order of release passed in favour of respondent no. 3. This injunction application was rejected by the Munsif on 30-5-1987 against which the petitioner went up in appeal before the Additional District Judge who also dismissed the appeal vide his order dated 10-8-1987 which has been challenged by the petitioner in this writ petition.
(3.) THE learned counsel for the petitioner strenuously urged that even though deemed vacancy was created in respect of the disputed accommodation on account of the petitioner's wife having acquired house no. J-32, Vasant Behar in a vacant state in the same city of Kanpur but after the petitioner's wife sold away house no. J-32, Vasant Behar on 3-12-1985, the deemed vacancy which was created on account of the said acquisition, had ceased to exist and hence it was incumbent to the Civil Court to take into consideration the subsequent events and since now the petitioner's status again revived as a tenant of the disputed accommodation and hence he could not be evicted in pursuance of the release order. Secondly, it was contended by the learned counsel for the petitioner that the suit filed by the petitioner in the Civil Court was maintainable and hence the Munsif and the District Judge were competent to go into the validity of the release order passed in favour of respondent no. 3 which is being challenged in the Civil suit. Thirdly, it was contended by the learned counsel for the petitioner that the petitioner is not bound by the undertaking given by the petitioner's counsel in writ petition no. 7621 of 1985 and hence he is not liable to vacate and handover vacant possession of the disputed accommodation to the respondent no. 3; and fourthly, it was contended that even though the order of release was passed under section 16 of the Act in favour of respondent no. 3 but the same could not be executed if the vacancy does not exist when order of release is being enforced in proceedings under Rule 14 of the Act. Now coming to the first point the contention of the learned counsel for the petitioner is that now when the respondent no. 3 has sought to be given possession of the disputed accommodation in pursuance of the order of release, now due to the subsequent development that the house no. J-32 Vasant Behar which was acquired by the petitioner's wife Smt. Surjeet Kaur, has already been sold by the petitioner's wife on 3-12-1985, the deemed vacancy which was created on account of the acquisition of said property, has ceased to exist and the status of the petitioner again revived as the tenant of the disputed accommodation and hence the petitioner could not be dispossessed from the disputed accommodation in pursuance of the release order which itself was passed on account of the deemed vacancy. It would be relevant here to quote sub-section (3) of section 12 of the Act under which the disputed accommodation was held to be deemed vacant. It runs as follows :- " 12. Deemed vacancy of a building in certain cases.-landlord or tenant of a building shall be ceased to have occupied a building or part thereof if- (1)............ (2)............ (3) In the case of a residential building, if the tenant or any member of his family builds or otherwise acquires in a vacant state or gets vacated a residential building in the same city, municipality, notified area or town area in which building under tenancy is situate, he shall be deemed to have ceased to occupy the building under his tenancy. Explanation-For the purpose of this sub-section (a) a person shall be deemed to have otherwise acquired a building, if he is occupying a built building for residential purpose as a tenant, allottee or licensee. (b) The expression ' any member of the family ' relation to a tenant shall not include a person who has neither been normally residing with nor is wholly dependent on such tenant. " In the present case it is clear that on the date when the release order was passed under section 16 of the Act releasing the disputed accommodation in favour of the landlord, respondent no. 3 in the case, there was deemed vacancy on account of the petitioner's wife having acquired another residential building in a vacant state in the same city. The petitioner challenged the order of release which came upto the stage of this Court in writ petition no. 7621 of 1985 when the petitioner's writ petition was dismissed and a finality was attached to the proceedings regarding the validity of the deemed vacancy and release order passed in consequence thereof in favour of the landlord-respondent no. 3. The entire proceedings regarding the challenge to the validity of the order of release came to an end with the dismissal of the petitioner's writ petition on 22-8-1985. The subsequent events that could be looked into by the court is only during the pendency of the proceedings and not after the proceedings had come to an end. The learned counsel for the petitioner relied upon the case of Satya Prakash v. R. C. and E. O. Allahabad, reported in 1986 UP RCC 384 where it was laid down that the court is competent to take subsequent events into consideration. In that case during the pendency of the writ petition itself the tenant had become the owner of the disputed accommodation and hence it was held that this subsequent event during the pendency of the writ petition was to be taken into consideration by the Court. In the present case the petitioner's writ petition was already dismissed on 22-8-1985 and nothing remained pending when the subsequent event occurred. The petitioner also relied on the case of M. M. Quasim v. Manohar Lal Sharma, AIR 1981 SC 1113 where at the stage of the appeal, the plaintiff lost his interest in the property as co-owner as a result of the decree in a partition suit and in that context it was held that the appellate court can take notice of this subsequent event and mould the relief accordingly. It was held that since appeal was the continuation of suit, the appellate court is competent to take notice of the subsequent event. This case is also of no assistance to the learned counsel for the petitioner as the subsequent event taken note of in the case cited was during the pendency of the appeal. The learned counsel for the petitioner then placed reliance on the case of P. Venkateswarlu v. The Motor and General Traders reported in AIR 1975 SC 1409 where also it was held that the revisional court could take cognizance of subsequent events. There, the revision was pending in the High Court and it was held that the High Court was competent to take note of the subsequent event in disposing of the proceedings. Hence this case is also of no assistance to the learned counsel for the petitioner. The cases cited by the learned counsel for the petitioner relate to happening of subsequent events during the pendency of appeal, revision or writ but in the present case after the writ petition filed by the petitioner was already dismissed on 22-8-1985, nothing remained pending.;