Holding

A landlord must have a subsisting interest in the premises at the time of decree; if a partition transfers exclusive ownership to a third person, the original landlords lose the right to evict on personal requirement, and the application under Order 41 Rule 27 was valid.

Summary

The appellant, a tenant, was sued for eviction by the respondents under the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 on grounds of personal requirement (to open a clinic) and alleged rent default for three months. The trial court ordered eviction, and the appellate court dismissed the appeal, ignoring the appellant's application under Order 41 Rule 27 seeking to introduce evidence that a partition decree had transferred the shop to a third person, Pyarelal, who was not a party to the suit. The High Court also dismissed the appeal, holding that the application was not properly before the first appellate court and that the respondents retained their right to evict. The Supreme Court allowed the appeal, held that the application under Order 41 Rule 27 was proper, that a landlord must retain a subsisting interest in the premises at the time of decree, and that the partition decree potentially extinguished the respondents' right to evict on personal requirement. The case was remanded to the first appellate court to determine whether the shop had been transferred to Pyarelal and, if so, whether the respondents could continue the eviction suit.

Issues considered

The applicability of the definition of "landlord" under s.2(d) and the explanation to s.11(1)(c) of the Bihar Buildings Act for a personal requirement eviction.
Whether a landlord who loses his interest in the premises due to a partition decree can continue an eviction suit.
The propriety of considering additional evidence filed under Order 41 Rule 27 CPC after the appellate arguments.
Whether the respondents were in default of rent for the months alleged.
The correctness of the High Court's refusal to entertain the partition evidence.

Legislation cited

Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947s. 11(1)(c), s. 11(1)(d), s. 2(d)
Code of Civil Procedures. Order 41 Rule 27

Subjects

evictionpersonal requirementlandlord definitionrent defaultpartition decreeadditional evidenceOrder 41 Rule 27lease and rent control

Judgment

A

367
y
M.M. QUASlM
v.
8
MANOHAR LAL SHARMA & ORS.
April 7, 1981
(D.A. DESAI, R.S. PATHAK AND E.S. VENKATARAMIAH, JJ.]

Bihar BuildingJ· (Lease, Rent and Eviction) Control Act 1947-S.r. 2(d),
JJ(I)(c) Expln. and ll(I)(d)-Landlord-Meaning of-Suit for eviction a/tenant c
on ground o[bo11ajide persolUJI requirement aud default-Partition of properties of
landlord- Suit property a/lolled to a perso11not a party to the eviction proceedings
- Whether landlord entitled to maintain and continue evtrtion proceedings.

Interpretation of Statures-Admin/strtlf ion a/ Rent Acrs-Co_urts to bear in
mind object and intendment oflegislaturt.
D
Words and Phrases-Land/ord-Meanin.t? of-Ss. 2(d) and II (I)( c) Expln.
Bihar Buildings (Lease, RtJu and EvictiOII) Control Act, 1947.

Respondents 1 and 2 are the brother's sons of Respondent No. 3. These
respondents commenced an action for ejectment of the appellant from a shop
under section J J(l)(c) & (d) of the Bihar Buildings (Lease, Rent and Eviction)
Control Act, 1947, alleging that the respondents in good fnilh required posses·
sion of the shop for opening an office and a clinic by the first respondent who
E
had become a qualified medical practitioner, and that there was default In
payment of rent for a period of three months i.e. September, October and
November, 1972. The appellant contested the suit for eviction contending that
he did not commit default in payment of rent for tho three months uod that
the same was paid but no receipt was passed and that !IS the respondents were
avoiding the statutory liability of passing the receipt acknowledging payment
of ren t, the appellant was forced to send the rent by money-order from Decem-
F ·
ber, 1"972 and he sent the same month after month, und therefore, he could
not be dubbed a defaulter. The ground for personal requirement was con-
troverted contending that the property belonged to a flrm, and therefore, the
same cannot be claimed for the use of any one partner for his business other than

..,.. the business of the firm. It was further contended that the respondents also owned
a number of houses and their requirementfor Respondent No. l was incorrect
and unwarranted. G
The Trial Court held against the appellant both on the Question of default
in payment of rent and personal requirement and ordered eviction.

The appellant preferred an appeal and when the appeal was pending before
the appellate au thority, he moved an application under Order 41, Rule 27 of the H
Code of CiviJ Procedure contending that there had been a partition of the pro -
perties amongst the members of the firm and the suit shop bad been alloued
368 SUPREME COURT REPORTS (1981) 3 S.C.R.

A to one 'P' who was neither a plaintiff nor a party to the proceedings and if the
shop belonged to him as an exclusive owner, the respondents and espcciaJiy
respondent No. l could not seck to evict the appellant for his personal require·
meot of the suit shop. The appellate judge holding that the respondents were
accepted by the appellant as the landlords of the suit shop, the subsequent
partition decree would not help the appellant and agreeing with the find ing of
the Trial Court that there was default in payment of rent for a period of three
B months, he dismissed the appeal.

The second appeal to the High Court by the appellant was dismissed, hold·
ing that the appellant had not moved the first appellate court with a proper appli-
cation under order 41, rule 27 of the Code of Civil Procedure and as there was no
such application on the record of the case the contention could not be enter-
ta ined, and that the appellant d id not chaUenge the finding of the courts on the
c question of default in payment of rent.
,- ·--"
In the appeal to this Court, it was contended on behalf of the appellant
tenant that : (I) the High Court was in error in rejecting the contention of the
appellant that the ground of personal requirement was no more available to the
respondents in view of the partition decree because not only the landlord
must prove his requirement at the commencement of the action but the
landlord for whose requirement the action is commenced must show that his
D requirement continues throughout the course of proceedings and that he had a
subsisting interest in the premises of which possession is sought for his own use,
(2) the High Court was in error in observing that in the absence of a proper
application under order 41 , rule 27 the Court could not entertain the contention
thereby sought to be raised, and that the finding that the appellant was in default
in payment of rent for a period of two months yras not• questioned before it.

E
Allowing the appeal,

HELD : I. The decree of the H igh Court and the first appellate court are
set aside and the case remanded to the first appellate court, which after granting
the application under order 41, rule 27, and taking the certified copy of the
decree in the partition suit on record and after giving an opportunity to
F the parties to lead any additional evidence should decide, whether the partition .
decree transfers the suit shop to 'P.' exclusively and whether the respondents can
maintain the action and are entitled to evict the appellant on the ground of
personal requirement of respondent No. I and lor on the ground of default.
. [385 G-386 Bl

G 2. The expres~ion 'landlord' which has been defined in section 2(d) of the
Rent Act is an inclusive definition couched in very wide language. This wide
amplitude of the expression has however been cut down by ~ the explanation
appended to sub-clause (c) of sub-section (J) of section 11. The person claiming.
possession on the ground of his rea~onable requirement of the leased building
must show that he is a land.lord in the sense that he is the owner of the building
and has a right to occupy the same in his own right. A mere rent collector,
though may be included in the expression landlord in its wide amplitude
H ca11not be treated as landJord for the purposes of section I J(l)(c). [376 G-·378 B}
M. M. QUASIM V. M. L. SHARMA 369

3. The legislature by restricting the meaning of the expression 'landlord' A
for the purpose of Section I J(l)(c), manifested it~ intention namely that landlord
alone can stte for eviction on the ground of his personal requirement if he is
one who has a right against the whole world to occupy the building himself and
y exclude any one holding a title lesser than his own. Such landlord who is an
owner and who would have a right to occupy the building in his own right, can
seek possession for his own use. A rent collector or an <\gent is not entitled to
occupy the house in his own right. Even if such a person be a lessor and, there- B
fore, a land lord within the expanded inclusive definition of the expression
landlord , nonetheless he cannot seek to evict the tenant on the ground that he
wants to personally occupy the house. He cannot claim such a right against the
real owner and as a necessary corollary he cannot seek to evict the tenant on the
ground that he wants possession of the premises for his own ocupation.
[378 C, G]

In the instant case the application for additional evidence was filed after the
argunwnts were concluded. The Judge had no objection in treating it to be one
c
under Or 41 rule 27, took it on record and examined it on merits. The H igh
Court \~S clearly in error in ignoring the evidence in second appeal on a technical
consideration that a proper application under order 41, rule 27, was not placed
before the first appellate court. [373 F, 374 C, 375 A·B]

l n the instant case, there was a proper and regular application to meet with
the requirements of order 41 , rule 27, CPC for additional evidence inviting the D
court's attention to a subsequent event of vital importance cuttin.g ·at the root of
the plaintiff's right to continue the action. Coupled with it, th~re was evidence
in the form of a certified copy of the decree in a partition suit showing that the
respondents eve'n if they had some shade of title to commence action, they having
lost all interest in the property and the property having become one of exclusive
ownership of a person not a party to the proceedings wert: no more entitled to
continue the proceedings for their own benefit. Both the lower appellate court E
··-( and the High Court were clearly in error in ignoring this vita l piece of evidence
which goes to the root of the matter and which would non-suit the respondents.
[381 C, G)
Pasupuleti Venkateswarlu v. The Motor & General T,·aders, ( 1975] 3 S.C.R.
958 and Laclunesltwar Prasad Sltukul v. Kesluvar La! Chaudllri, (I 940} F.C.R. 85,
referred to.
F
4. The t ime honomed nolion that the right of re-entry is unfettered and
that the owner landlord is the sold judge of his requirement has been made to
yield to the needs of the society which had to enact the Rent Acts specifically
devised to curb and fetier the unrestricted right of re-entry and to provide that
only oo proving some enabling grounds set out in the Rent Act the landlord can
re-enter. One such ground is of personal requ irement of landlord. When examin· G
ing a case of personal requirement, if it is pointed out that there is som~ vacant
premises with the la nd lord which he can conveniently occupy, the clement of
need in his requirement would be absent. To reject this aspect by saying that
the landlord has an unfettered right to choose the premises is to negative the very
raison de'etre of the Rent Act. If it is shown by t he tenant that the landlord
has some other vacant premises in his possession, th11t by itself may not be sutii- H
cient to negative the landlord's claim but in such a situation the court would
expect the landlord to establish that the premises which is vacant is not suitable
370 SUPREME COURT REPORTS (1981] 3 S.C. R.

A Cor the purpose of his occupation or for the purpos~ for which he requires the
premises in respect of which the action is commencd in the Court. To say that
the landlord has an unfettered right to choose whatever premises he wants and
that too irrespective of the fact that he has some vacant premises in possession
which he would not occupy and try to sec k to remove the tenant would be
unsupported by the Rent Act. This approach would put a premium on the land-
lord's greed to throw out tenants payi ng lower rent in the name of personal
B occupation and ren t out the premises in his possc~sion at the market rate. To
curb this very tendency the Rent Act was enacted, nnd, therefore, it becomes the
duty of the Court administering the Rent Act to bear in mind the object and
intendment of the legislature in cnactiny 1hc same. The Court must understand
a nd appreciate the relationship between legal rules and ono of the nccessitie~ of
life-shelter. [383 C-384 A]

c Jn the instant clse there are some recitals in the judgment of the High
Court which show (i) that certain aspects have been disposed of cursorily; Jacking I

precision, and (ii) that a tenant who examined as many as eightw itncsses includ-
ing himself to prove that the rent was paid and who specifically pleaded that
~
fact in reply to the not ice served by the landlords and who meticulously fought
his ~sc, by making an application for additional evidence at the appellate
stage would not give up the contention and if he hac in fact given i 1 up there
D was no justification for still taking the matter to the hi~hest court . The sub·
sequent event of partition of the properties have a dircet 1mpact on the title or the
landlord·respondents to evict the appellant on the ground of non-payrmnt of
rent. A remand of the case is therefore inevitable. [3!!4 G-385 .H, Ci]
•
CIVIL 1\PPELLATE J uRISOJCTlON : Civil Appeal No. 758 of 1978.

E Appeal by Special Leave from the Judgment and Order/
Decree dated 5.10.1977 of the Patna High Cou rt (Ranchi Bench)
Ranchi in Appeal from Appellate Decree No. 204 of 1976 (R).

R.K. Garg, V..J. Francis, D.K. Gnrf( and S. K. Jain for the
Appellant.
F
Smjoo Prasad. S. N. Misra and A.N. Bardiyar for the .- . /
Respondents. T
The Judgment of the Court was delivered by

G DesAI, J. A tenant under a decree of eviction questions its
correctness in this appeal by special leave.

Respondents l and 2 are the brother's sons of respondent 3
Kishorilal Vishwakarma. Respondents commenced an action for
ejectment of the appellant under section II (2)(c) & (d) of the
H Bihar Builldings (Lease, Rent & Eviclion) Control Act. 1947 ('Rent
Act' for short) from a shop forming part of holding No. 188 of
Ward No. 3 within the area of Giridih municipality in Bihar State.
M. M. QUASIM v. M. L. SHARMA (Desai, J.) 371

Claim for possession was founded on the ground mentioned in .s. 11 A
(l) (c) alleging that the respondents in good faith required possession
of the shop for opening an office and a clinic by fi rst respondent
Manoharla! Sharma who by thett had become a qualified medical
practitioner having obtained M.B.B.S. degree. The additional ground
on which the claim rdted was the usual one of default in payment
of.rent for a period of two months and more as envisaged by s. 11 B
(I) (d) . Default complained of was failure to pay rent for the
months of September, October and November, 1972.

Appellant contested the suit, inter a!iCJ, contending that he did
not commit default in payment cf rent for the months of September,
October and November, 1972, and that the same was paid but no c
receipt was passed and that as the respondents were avoiding statu-
tory liability of passing the receipt acknowledging payment of rent
the appellant was forced to send the rent by Money Order from
December 1972 and he sent the same month afrer month, and,
therefore, he could not be dubbed a defaulter within the meaning of
s. 11 (1) (d). Controverting the ground of personal requirement, D
the appellant contended that the property belonged to a firm and,
therefore, the same cannot be claimed for the use of any one partner
for his business other than the business of the firm. And in any case,
the respondents have number of houses in their possession and the
requirement alleged on behalf of Manoh!'lrlal Sharma was incorrect
and unwarranted. E

The learned trial judge framed as many as nine issues. He
held against the appellant both on the question of default in
payment of rent and the personal requirement and after answering
·some technical defences raised by the appellant, learned trial judge
decreed the suit. The appellant preferred an appeal to the appellate
F
authority. When the appeal was pending -before the learned Second
Additional Subordinate Judge, Giridih, the appellant filed an applica-
tion supported by an affidavit on September 28, 1976, purporting to
be under order 41, rule 27, Code of Civil Procedure contending
therein that as originally concended by him the shop belonged to a
G
firm and in Suit No. 4 of 1974 there has been a partition of the
properties amongst the members of t.he firm and the suit shop has
been allotted to one Pyarelal, who is neither a plaintiff nor a party
to the proceedings and if the shop now beloags to Pyarelal as an
exclusive owner, the respondents and especially respondent I H
Manobar Lal Sharma cannot seek to evict the appellant for his
personal requirement of the suit shop. This application was filed
372 SUPREME COURT REPORTS (1981} 3 S.C..R.
A with an affidavit drawn at the foot of the application itself. The
learned appellate judge referred to this application in paragraph 12 of
his judgment and negatived the contention therein rai'\ed observing
that allotment of the suit shop to Pyarelal has taken place after the
suit was filed and that as earlier tile respondel'lts were accepted by
the appellant as the landlords of the sui( shop, the subsequent
8 partition riecrec would not help the appellant. He then~made a cryptic
observation that 'in any view of the matter the finding of the learned
Munsif regarding personal necessity is correct and there is no
ground for interference. ' He agreed with the finding of the trial
Court that there was default in payment of rent for a period of
c three months, and, therefore , also the respondents were entitled to
a decree for eviction on the ground mentioned in s. 11 (J) (d) of . . .. ~

the Rent Act. Accordingly he dismissed the appeal with costs.

A second appeal to the High Court by the tenant met with
the same fate. It is, however, advantageous to notice the approach
D of the High Court to the £\'0 contentions raised on behalf of the
appellant. The contention of the tenant that the ground for personal
relluirt'ment of respondent I Manoharlal Sharma no more survives
because he has no subsisting interest in the suit shop in view of the
partition decree in Suit No. 4 of 1974 was negatived observing that
the aprellant had not moved the 1irst appellate court with a proper
E application under order 41 , rule 27 of the Code of Civil Procedure
and as there was no such application on the record of the case the
contention could not be entertained. Alternatively, the High Court
found it difficult to accept the contention lhat during the pendency
of I he appeal jf the bouse in question was allot ted to the share of
one of the co-sharers of the decree (sic) tHe decree which had been
F passed in their favour becomes nullity and is liable to be set aside
by the appellate court on this .~:.rround alone. Relevant to the second
contention the H igh Court observed that the appellant did not
challenge the finding of the two courts below on the question of
default in payment of rent. Accordingly the High Court dismissed
the second appeal with costs. Hence this appeal.
G
Learned counsel for the appellant canvassed the same two
contentions before us which were pressed before the High Court. It
was contended that the High Court was clearly in error in rejecting
the contention of the appellant that the ground of personal require-
H ment was no more available to the r¢spondents in view of the parti-
tion decree in Suit No. 4 of 1974 because not only the landlord
must prove his requirement at the commencement of the action but
M. M. QUASiM V. M. L. SHARMA (Desai, J.)
'})3
the landlord for whose requirement the action is commenced must A
shOW that his requirement continues throughout the course of pro- ,;

eedings and that he has a subsisting interest in the premises of
~·h ich possession is sought for his own use. Reliance was placed in
support of this submission 0:1 Pasupufeti Venbtesw.:tr!u v. Th~
Motor & General Trader.r.(l) It was also contended that the High
court was in error in observing that in the absence of a proper B
application under order 41. rule 27 the court could not entertain
the contention thereby sought to be raised. It was also contended
that the High Court was in error in observing that the finding that
the appellant was in default in payment of rent for a p~riod of two
months was not questioned belorc it.
c
Respondents I and 2 are the sons of one Sunderlal Sharma.
Respondent 3 is the brother of Sunderbl Sh:1rma. One Pyarelal is
also a brother of Sundcrlal Sharma and Respondent 3 and thu-; an
uncle of respondents I and 2. These facts have become very relevant
for evaluating and disposing of the contention ca.JVassed before us.
' 0
Action for ejectment was filed by re;p:mdcnts I and 2
}.f:lnoharlal Sharma and .Motilal Sharma sons of deceasd
· SunJcrlal Sharma, and respJnJcnt 3 Kishorilal Vishwakarma,
brotlter of Sundcrlal Sharma, inter alia. stating that they are tbe
owners of the suit shop and are thus landlords within the meaning ~'
E ' !
of Rent Act and that they require p ·ns~ssion of the suit premises,
firstly on the ground that Manoharlal Sharma wants to open his
.!
I '
\
clinic in the suit shop and !..-condly, that the appell:wt tenant
has committed default in payment of rent fur a period of two ,.
months and more.
F
. At the first appellate stage appellant filed an application,
tn the cause . title of which it i!i mentioned that it is an t
~
application purporting to be under ordl·r 41 rule 27, C.P.C. :
and at the foot of it there is a swor.t alfidavit with reference !-: '
to the contents of tl~e application. Jn thi~ application it has been in f
t
terms 5lated that in suit No. 4 of 1974 (Kishoril!d Visl111'.1kumr.I v. G !
PyuT<·Iu/ Vishwulwmw) for partition of the assets of the firm ther.e !
'
h.as been a compromise on August 16, 1974, and that by the partt- t·
hon elftcted by the decree the suit shop has bec11 ullvtted to Pyarelal '
L
I
a~<J thereby lie became the owner and landlord of the suit shop It
With reference to the appcllnnt nnd as he is neither a party to the H
---:----_
fl) (1975) 3S C.R. 9~8.

/, .
:.;
374 SUPREME COURT REPORTS [ 1981] 3 S.C.R.

A suit nor has he applied to be joined as a party to the suit, the present
respondents have no subsisting interest in the property and,
therefore, a decree for eviction on any of the grounds mentioned in
the Rent Act could not be p l ssed in their favour. He requested for
setting aside the decree on this ground. It was further stated in the
application that this fact being in the special knowledge of the
B respondents did not come to the knowledge of the appellant and
not\vithstanding the exercise of due diligence such evidence was
not within his knowledge or could not after the exercise of due
diligence be produced by him, and, therefore, he sought to produce
this additional evidence at the appellate stage. A request was made
t9 accept the certi.fied copy of t he partition decree evidencing the
c fact alleged in the application. The learned appellate judge did not
find fault either with the form of the application or compliance
with the technical requirement of order 41, rule 27, or in any delay
in moving the court for taking on record the additional evidence,
The learned judge of the first appellate court disposed of the con-
tention raised in the application on merits as would be evident from
D paragraph 12 of his judgment. Not to confound the issue on this point
any more, the observation of the learned judge of the first appellate
court may be extracted;

''After the argument was heard, the deft. appellant
bas filed the certified copy of the compromise decree of
E P.s 4 of 1974 (page 10 begins) Relying on this decree it has
been alleged that the house in question has now been
allotted to one Pyarelal who is not party to this suit. So,
now, the plffs have no c~:mce rn with the suit house. This
event had taken place after passing of the decree. If Pyarelal
was co·sharer then other co-sharer is competent to file a
F suit on behalf of the other. From the "notice reply ext.
I it will appear that ownership of the plffs respondent of
T.S. 47/73 was accepted . Once they have accepted that the
plaintiffs are the owner now the defendant appellant can
not say that the pltl's are not the owner of the suit premises.
This partition decree will not help the defendant to say
G that the pUI do not require the house now ? In execution
of that partition decree, also the vacant possession will be
required. So, in any view of the matter 1 find that the
findings of the matter I find that the findings of the learned
Munsif, regarding the personal necessity is correct and there
H is ground for interference. Tbe learned Munsif has rightly
appreciated the evidence and has come to th'e correct
findings. "
M. M. QUASIM 1'. M. L. SHARMA (Desai, J.) 375

It would unquestionably appear that the learned judge enter- A
tained the application for additional evidence, took it on record and
y examined it on merits.

I.n this background, in our opinion, the High Cou'rt was clearly
in error in ignoring this evidence in second appeal on a technical
consideration that a proper application under order 41 , r. 27 was not B
placed before the first appellate courl. Here is ·what the High
Court says:
"Whenever any add itional evidence is produced before
.. ...___ _ an appellate court a regular applicarion under order 41,
rule 27 of the Code of Civil Procedure is filed. There is no c
such application in the records of the case."

Obviously, this is contrary to recvrd. But the High Court appeared
to be in two minds when it proceeded to entertain the contention on
merits and negatived it on merits. Says the High Court further on
this point as under : D
" Apart from that, it is difficult to accept the contention
that during the pendency of the appeal if the house in
question is allotted to the share of one of the co-sharers of
the decree, the decree which had been passed in their favour
becomes nullity and is liable to be set aside by the appellate E
court on this ground alone. This aspect of the matter has
(sic) considered on several occasions by this Court where
the plaintiff, during the pendency of t he suit has assigned
his interest. Even in those cases it has been held that by
mere assignment the plaintiff does not Jose the right to
maintain the suit. In my view, the position will be all the F
more difficult for the defendant if any such objection is
taken for the first time in the court of appeal."

What precedents are relied upon by the High Court when it
says that the aspect required to be considered by it has been examin-
ed on a number of occasions left us guessing because there is no G
citation in the judgment. I f the p recedent relied upon was quoted in
the judgment we could have profitably examined the precedent itself.
In tbe absence of it the contention being a pure question of law will
have to be examined on its own merits.
H
The procedural conundrum may be cleared out at the threshold.
Was there a proper application before the appellate court under
376 SUPREME COURT REPORTS [1981] 3 S.C.R.

A order 41, rule 27. . It must be answered in the aftirmatlve. The appli-
cation Annexur~ II page 36 of the record recites in its title as: 'Petition /

under order 41, rule 27 of the Civil Procedure Code'. It is founded
on an affidavit. It is a well recognised practice commonly adopted
m courts that where an application is required to be supported by
an affidavit the application is drawn up and at the foot of it an
B affidavit is sworn. Even taking the most technical view of the
requireme.nt of order 41, r.27, C.P.C. the petition purporting to be
under order 41 rule 27 meets with the requirement of the situation.
The contention of delay in moving the application will be presently
examined but the High Court could not have rejected the contention
raised by the appellant on the ground that a .proper application under
c order 41, rule 27, is not to be found on record. To some extent
'
this observation would indicate that the rec~>rd of the case was not -(
examined with the thoroughness as is expected in disposing of the
appeal. In fact, the first appellate court whose grievance was that
the application was filed after the arguments were concluded, bas
had no objecti9n in treating the application to be one under order
D 41, rule 27. It has been so treated and has been disposed of on
merits as per the passage from the judgment extracted hereinbefore.
The Hjgh Court, therefore, was squarely in error in rejecting the
contention on the narrow ground that there was no proper appli-
cation under order 4l , rule 27.

E Now, probing the merits of the contention, the first thing that
stares in the face is whether where a suit is ·filed by a person claim-
ing to be landlord on ·tbe ground that he in good faith requires the
suit premises for his own use and cccupation, would he still be enti-
tled to a decree for possession on this grvund even if during the
course of proceedings his interest in the suit premises has come to
F a11 end and on the date of the final decree he had no subsisting
interest in the suit premises? In other word~ . how should the Court
approach a proceeding under the Rent Act while taki ng into consi-
deration the subsequent events which would non-suit the plaintiff?

The expression 'landlord' has been defined in s. 2 (d) of the
G
Rent Act wbich reads as under :

" landlord" includes the persons who fo r the time being
is receiving, or is entitled to receive, the rent of a build-
H ing wl~ etber on his own account or on behalf oranother,
or on account or on behalf ·or for the benefit, or himself
and others or as an agent. trustee, executor, administrator,
M. M. QUASJM 1'• .M. t. SHARMA (Desai, J.) 377

receiver or guardian or who would so receive the rent, or .\
bl! entitled to receiv~ the rent if the building were let to a
tenant."

The inclusive definition is couched in very wide language. However
this wide amplitude of the expression· has been cut down by the
explanation appended to sub-clause (c) of su b-se~tion (I) of s. 11 B
which reads a under :

" 11. Eviction of tenants :

(a) Notwithstanding anything contained In any con-
tract or Jaw to the contrary but subject to the
provisions of the I ndustrial Dispute Act, 1947 and c
to those of section 12, where a tenant is in posses-
) sion of any building, he shall not be liable to
eviction there-from except in execution of a decree
passed by the Coun on one or more of the
foU owing grounds;-
D

(c) Where the building is reasonably and in good
faith required by the landlord for his own
occupation or for the occupation of any person for
whose benefit the building is held by the landlord;
Provided that where the Court thinks that
the reasonable requirement of such occupation
may be substantially satisfied by evicting the
tenant from a part only of the building and allow-
ing the tenant to continue occupation of the rest
and the tenant agrees to such occupation the
Court shall pass a decree accordingly. and fix F
proportionately fair rent f()f the portion in occupa-
tion of the tenant, which portion shall thence-
forth constitute the building within the meaning of
clause (aa) of section 2. and the rent so fixed
sha11 be deemed to be the fa1r rent fixed under
section 5; G

Explanation : In this clause the word "land-
lord" shall not include an agent referred to in
clause (d) of section 2."
H
Therefo re, while taking advantage of t he enabling provision enacted
in s. l l (1) (c), the person claiming possession on the ground of
378 SUPREME COURT REPORTS [1981) 3 S.C.R.
A his reasonable requirement of the the leased building must show that
he is a landlord in the sense that he is owner of the building and
has a right to occupy the same in his own right. A mere rent col-
lector, though may be included in the expression landlord in its wide
amplitude cannot be treated .as a landlord for the purposes of s. I I (I)
(c). This becomes manifestly clear from the explanation appended
8
to the sub-section. By restricting the meaning of expression
landlord for the purpose of section I l(l)(c), the legislature manifested
its intention namely that that landlord alone can seek eviction on the
ground of his personal requirement if he is one who has a right
against the whole world to occupy the building himself a~:td
c exclude any one holding a title lesser than his own. Such landlord
who is an owner and who would have a right to occupy the building
in his own right, can seek possession for his own use. The latter part
of lhe section envisages a situation where the landlord is holding
the buildings for the benefit of some other person but in that case
landlord can seek to evict tenant not for his personal use but for the
D personal requirement of that person fo r whosz benefit he holds the
building. The second Clause contemplates a situation of trustees and
cesti que trust but when the case is governed by the first part of sub-
clause (c) of sub-section (I) of s. ll, the person claiming possession
for personal requirement must be such a landlord who wants
possession for his own occupation and this would imply that he must
E be a person who has a right to remain in occupation against the
whole world and not someo:~e who has no subsisting interest in the
property and is merely a rent •collector such as an agent, executor,
administrator or a receiver of the prop!rty. For the purposes of
s. ll {l)(c) the expression landlord could, therefore, mean a person
who is the owner of the buildi ng ~and w:10 has a right lv remain
F in occupation and actual possession of the building to the exclusion
of everyone else. Tt is such a person who cat\ seek to evict the
tenant on the gwund that he requires possession in good faith for
his own occupation. A rent collector or an agent is not entitled to
occupy the house in .his own right. Even if such a person be a
lessor and, therefore. a landlord within the expanded inclusive
G delinilion of the expression landlord, nonetheless he cannot seek to
evict the tenant on the ground that he wants to personally occupy
the house. He cannot claim such a right against the real owner and
as a necessary corollary he cannot seelc to evict the tenant on the
ground that he wants possession of the premises for his own oc.cupa-
H tion. That can be the only reasonable interpertation one can put
on the ingredients of sub-clause (c) of s. I I(I) which reads: "Where
building is reasonably and in good faith required by the landlord
M. M. QUASJM v. M. L. SHARMA (Desai, J.) 379

for his own occupation ..... .''. Assuming thai the expression A
'landlord' has to be understood with the same connotation as is
spelt out by the definition cla use, even a rent collector or a receiver
y of the property appointed by the Court in bankruptcy proceedings
wou ld be able to evict the tenant alleging that wants the building for
his own occupation, a right which he could not have claimed against
the real owner. Therefore, the explanation to clause (d) which cuts B
down the wide amplitude of the expression 'landlord' would
unm istakably show t hat for the purposes of clause (c) such landlord
who in the sense in which the word 'owner' is understood can claim
as of right to the exclusion of everyone, to occupy the house, would .
be entitled to evict the tenant for his own occupation.
c
The next step to b.! taken is whether where a person claiming
to be such a landlord has s0ug'tt to evict the tenant for his own
occupation of the building but lost his interest in entirely in the
building during the pendency of the appeal whicb is a continuation
of the suit. Would he still be entitled to maintain or continue the -o
action after the cessation or extingujshment of his interest in the
building? To examine this contention on merits one feature of the
proceedings under the Rent Act may be taken into consideration.
To what extent and in what circumstances the court can take notice
of ev~nts subsequent to the institution of the action is the core
problem. This is no more res integra and need not be examined in E
depth. In Pasupuleti Venkataesw:~rlus' case this Court examined this
question in relation to a proceeding under the Andhra Pradesh
Buildings (Lease, Rent & Eviction) Control Act, 1960. The landlord
in that case sought to .evict the tenant as he wanted to start .his own
bussiness in the demised premises. In other words, action was for
eviction for personal requirement. In the zig-zag course vf proceed- F
ings it transpired that subsequent to rhe commencement of the action
the landlord had come into possession of another shop wltich would
meet with his requirement and on this subsequent event tenant reques-
ted the court to non-suit the plaintiff. At that stage the proceedings
were pendings before the High Court in a revision petition at the
instance of the landlord questioning a remand to the trial court by G
the first appellate court for investigation of certain facts. 111 this
revision at t he instance of the landlord the High Court took notice
of the subsequent event that tbe landlord's requircmenr had been
fully satisfied as he had come in possession of another shop. ln
appeal by the landlord to this Court, a serious exception was taken H
that the High Court could not have taken into consideration an
event subsequent to the commencement of the proceedings and non-
380 SUPREME COURT REPORTS [1981} 3 S.C.R.

A suit the landlord an ~ that too at a stage when the proceed ings were
pending in revision at the instance of the landlord. Negativing this
contention and dismissing the appeal this Court, after referring to
the decision in L'lchmeshwar PrMad Shukuf v. KPshwar La/
Chaudhrj(l) quoted with approval the following passage from
8 Paflerson v. State of Afohama(') :

"We have frequentl y held that in the exercise of our
appellate jurisdiction we have power not on ly to correct
error in the judgment ltnder review but to make such dis-
position of the case as justice requires. And in determining
c what justice does require, the Court is bound to consider
any change, either in fact o r in law, which has supervened
since the judgment was entered.''

In the leading judgment in L1chmeshwar Prurud S/wkuf's case
Varadachariar, J. observed that an appeal being in the nature of a
0 re-hearing the Courts in fn dia have in numerous cases recognised
that in moulding the relief to be granteJ in a case on appeal, the
Court of appeal is entitled ro take into account even facts which
have come into existence after the decree appealed against was
made. Krishna lyer, J. summed up the position iu Pasupuferi
VenkatPSII'urfu' s case :
E
"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 proceedi ng Equally clear is the principle
tha t procedure is the handmaid and not the mistress of the
judicial process. If a fact, arising <~fter the lis has come to
F court and llas a fundamental impact on rhe 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 stulrify or render inept the decretal remedy.
Equity justifi es binding the rules of procedure, where no
specific provision or fairplay is violated, with a view to
promote substantial justice-subject, of course, to the
G 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 pends, the power exists, absent other special
circumstances repelling resort LO that course in law or
H
(I) [1940] F.C.R. 85
(2) 294 U.S. 600 a t (1)7,
M. M. QUASIM v. M. L. SHARMA (Desai, J.) 381

justice. .. We affirm the proposition that for making the
right or remedy claime·d by the party just and meaningful
as also legally and factually in accord with the current
realities, the · co·urt can, and in ·many case) must, take
cautious cognizance of e~en.ts and developments subsequent
to the institution of the proceeding provided the rules of
fairness to both sides are scrupulously obeyed." 8
To sum up, there was a proper and regular applicatio:1 to meet with
the requirements of order 41, rule 27, Ci>C for additional evidence
inviting the Court's attention to a subsequent event of vital impor-
tance cutting at the root o ~ the plaiatiff's right to continue the action.
Coupled with it, there was evidence in the form of a certified copy of c
the decree showing that the plaintiffs, even if they had some shade of
title to commence action, they having lost all interest in the property
and the property having become one of exclusive ownership of
a person not a party to the proceedings, were no more entitled to
contmue the proceedings for their own benefit.
Have the first appellate court a:1d the High Court acted in 0
accord~nce with law in ignoring this subsequent event of vital
importance? The tlrst appellate court, as pointed out earlier,
proceeded to examine the contention on merits and rejected it on
the ground that this b~hg an event subseq•tent to the passi lg of
the decree by the tr ial court, no notice could be taken of it, a
view contrary to the Jaw laid down by this Court. Same is true E
of tl:e High Court when it said that even if the landlord who
~ommenced action lost all interest in the property subsequent to the
passing of the decree, the decree does not become a nullity and at
any rate no note of the subsequent events can be taken in the
absence of a proper application under order 41, rule 27, C P.C.
But the next observation of the High Court that where the plaintiff F
landlord's interest in the property is extinguished subsequent to the
decree by the trial coort, be does not lose his right to maintain and
continue the action, is opposed to tl1e very scheme of the Rent Act
and the provisions contained in ss. I I ( l)(c) and 12. Both the courts
.
y were, therefore, clearly in error in ignoring this vital piece of
evidence which goes to the root of the matter and w.:>uld surely non- G
wit the plaintiffs.

Once this subsequent event of landlord's interest in the property
getting extinguished as the property in question is allotted as an
exclusive owner to a sharer upon a partition amongst co-sharers, H
is properly evaluated, unless some proper explanation is offered by
the landlords who are parties to the proceedings, the plaintiffs are
I
382 SUPREME COURT REPORTS (1981) 3 S.C.R.

A liable to be non-suited. This does not require muc:1 of a discussion
because plaintiffs sought possession for personaJ requirement of
respondent I Manohar l al Sharma. Monohar Lal Sharma wanLed
to start his clinic, as he is a qualified medical practitioner, in the suit
premises. Manohar Lal Sharma is neither an owner nor a co-owner
nor he has any interest in the suit property since the da te of parti·
B lion effected by compromise between the co-sharers in Su it No. 4/75.
If action were to start today a or day after the decree for partition,
could Manobar Lal Sharma ever file a suit for evicting the present
appellant from the suit shop on the grounri that he wanted to start
his c1inic in the suit shop ? lf Manobarlal Sharma can bring such an
actjon he can as well evcit any tenant from any premises with which
C he has no connection. Even if at the commencement of the action
Manoharlal Sharma was a co-owner alongwirh his brother and
uncle and, therefore, he had a semblance of title to commence
-
action for eviction, vnce the co-owner parted company, panitioned
property by metes and bounds and the suit property came to be
allotled to Pyarelal as an exclusive owner. Manoharlal Sharma
D cannot claim eviction of the tenant from such property in whicb
he has no subsisting interest. And even tf this event occurred
subsequent to the passing of the decree by the trial court, this
subsequent event should ha"e been noticed at the appellate
stage because the appeal is nothing else but a continuation
of the suit and in a proceeding under the Rent Act the relief
E has to be moulded according to ·the situation on the date
of the decree; the decree would mean the decree which is final and
not correctible by any judicial ; proceeding. Manoharlal Sharma,
therefore, can not seck to evict the tenant for his personal
requiremen t. Therefore, the suit for evict tOn under s.ll (I )(c) would
ordinarily fail on this ground. However, as the the fresh
F evidence is being take11 into cunsideration and a<; both the appellate
courts and the H igh Courl have erred in approaching the matter
by ignoring the subsequent event, it would be presently pointcu out
that in order to do justice between the parties the matter will have
to be remanded to the first appellate court.

G Before turning to rhe nexr topic, a word about the judicial
approach to the question of personal requirement of the landlord
under tt-e Rent Act would not be our of place. The learned judge
of the first appellate courr while upholding the claun of personal
requirement of respondent I bas observed as under.
H
"It is ror the plaintiffs to decide whatever they think fir
ard prorer. Tt is not for the defendant to suggest as
M. M. QUASIM V. M . L. SHARMA (Desai, J.) 383

to what they should do. The defendant has led A
evidence to show that the plaintiffs have got some
more houses at Girdih ..... .The defendant appellant
has also filed certified copy of judgment of one suit
No. 47[73 which is Ext. D only to show that plaintiffs
have got a decree for eviction with respect to the other
house at Giridih. I have already pointed out earlier B
that it is for the plaintiffs to decide which of the houses
is suitable for them. It is not for the defendant to
suggest that the house which will fall vacant in the near
future is most suitable house for the plaintiffs".

This approach betrays a woeful lack of consciousness relatable to
circumstances leading to enactment of Rent Acts in almost a ll
c
States in the country. The time honoured notion that the right
of re-entry is unfettered and that the mvner landlord is the sole
judge of his requirement has been made to yield to the needs of the
society which had to enact the Rent Acts specifically devised to curb
and fetter the unrestricted right of re-entry and to provide that only D
on proving some enabling grounds set out in the Rent Act the land-
lord can re-enter. One such ground is of personal requirement of
landlord. When examining a case of personal requirement, if it is
pointed out that there is some vacant premises with the landlord
which he can conveniently occupy, the element of need in his require-
ment would be absent. To reject this aspect by saying that the E
landlord has an unfettered right to choose the premises is to negative
the very raison de'elre of the Rent Act. Undo·ubtedly, if it is shown
by the tenant that the landlord has some other vacant premises in
his possession, that by itself may not be sufficient to negative the
landlord's claim but in such a s·ituation the Court would expect the
landlord to establish that the premises which is vacant is not suita- F
ble for the purpose of his occupation or for the purpose for which
he requires the premises in respect of which the action ·is commenc-
ed in the Court. Tt would, however, be a bald statement unsuppor-
ted by the Rent Act to say that the landlord has an unfettered right
to choose whatever premises he wants and that too irrespective of G
...,.. the fact that he has some vacant premises in possession which he
would not occupy and try to seek to remove the tenant. This
approach would .put a premium on the landlord's greed to throw out
tenants paying lower rent in the name of personal occupation and
rent out the premises in his possession at the market rate. To curb
this very tendetJcy the Rent Act was enacted and. therefore, 'it H
becomes the duty of the Court administering the Rent Act to bear in
.mind the object a nd intendment of the legislature in enacting the
384 SUPREME COURT REPORTS (1981) 3 S.C. R

A same. The Court must understand and appreciate the relationship
between legal rules and one of necessities of life- shelter-and the
way in which one part of the snciety exacts tribute from another
for permission-to inhabit a portion of the globe. Tn 'The Sociology
of Law', edited by Pat Carlen. the author examhes the rent and
rent legislation in E ngland and Wales and observes as under :
B
"The prevailing parad igms of nco - cla~sical economics
and empiricist political theory ha~c determined the
conceptual insularity of law and legal institutions, with
the result that they and other social events appear as
random existences independent of thtir historical formation.
c The force of any theory of law must of course lie in its
---·
explanatory power, and this in turn dcpc1ds on the wider
image of social relations which produces it'' .

It was, however, contended on behalf of the respondents that
even if in view of the subsequent event the plaintiffs landlords were
D not entitled to reco,·er possession on tile ground set out in s. II (I )(c)
yet the respondents would still be entitled to evict the appellant
on the ground mentioned in s. 11 (I) (d) inasmuc'l as all the courts
have concurrently found that the appellant was ia default of
payment of rcnr for a period of three months, i. e. September,
October and November, 1972, and tha~ this finding was not even
E questioned before the H igh Court as mentioned in paragraph 3 of
the judgment of the High Court. The appellant has set out ground
No. V in his petition for special leave in the following terms :

" Because the Hi gh Court erred in ho ld ing that the
findi11gs regarding default in payment of rent and of personal
necessity were not challenged before the ll igh Court"'.

Undoubtedly, what the High Court srates 111 its judgme:1t on the
question whether a particular finding was challenged o r not
challenged is entitled to highec;t respect at our hands and must
o rdinarily be always accepted. We have lingering hesitation in the
G facts of this case for two specific reasons : (I) that there are some
recitals in the judgment of the High Court spectlicallv referred to
herein before which show that cerrain aspects have been disposed
of cursorily, lacking precision; and (ii) that a tenant who examined
as many as eight witnr sses including himself to prove that the rent
H was paid and who specifically pleaded that fact in reply to the notice
served by the landlords and who meticulously fought his case by
making an application for additional evidence nt the appellate
M.M. QUASJM II. M. L. SHARMA (Desai, J .) 385

stage would not give up the contention and if he had in fact given A
it up there was no justification for still taktng the matter to tbe
highest court. Even then we would have overlooked the contention
to the contrary and accepted what has been stated in the judgment
but for the fact that subsequMt event stated hereinabove may have
a direct impact on the title of the landl ords-re~pondents to evict the
appellant on the ground of non-payment of rent. B

If on exami ning and evaluatin g the contents of the certified
copy of the decree in partHion suit No. 4/74 it is established
conclusively that the property has been exclusively allotted to Pyarelal
who has not applied to be joined as party to these proceedings
though he has filed some affidavit in this appeal before this Court c
and if no reservation is made in the decree for continuation of the
} proceedings for recovering possession on the ground of non-payment
of rent in favour of the present respondents nor have the present
respondents undertaken any liability to continue the proceedings on
behalf of Pyarelal Shanna for the limited purpose of recovery of
rent, in our opinion it would be extremely doubtful if the respondents D
can still maintain the action for recovering rent and for possession
on the grounds mentioned in s. I I (l)(c) & (d). That aspect has
not a t all been examined either by the first appellate Court or by the
High Court. lf 'A', a landlord commences action for eviction
against his tenant on the only ground of nonpayment of rent and
during the pendency of the proceedings transfers the property lock E
stock and barrel to a third person and if the third person is not
before the Court, without finally expressing any opinion because the
remand is contemplated, it is just unthinkable that such a landlord
can continue the suit even after be bad no interest in the property.
The aspect may have to be examined in the background of the
contract between the landlord who commenced the action and his F
transfcr'!e, or the transferee having r~served some right came to the
Court for being impleaded as a party to continue the action and his,
right to continue, may be examined. These aspects arc not examined
by any Court though decision on them goes to the root of the matter.
Therefore, a remand is inevitable in the circumstances of this case. G
Accordingly, we allow this appeal and set aside the decree of
the High Court and the fi rst appellate Court and remand tbe case
to the first appellate Court which, after granting the application
under order 41, r. 27 and taking the certified copy of the decree in
partition suit No. 4/74 on record and after giving an opportunity H
to the parties before it to lead any addilional evidence pursuanl to
this additonal evidence, would decide che following two questions:
386 SUPREME COURT REPORTS [1981) 3 S.C.R.

A (J) Does the partiton decree transfer the suit shop to
Pyarelal Sharma exclusively ?

(2) If yes, can the respondents (plaintiffs) maintain
action and are entitled to evict the appellant (defendant) on
the ground of personal requirement of Manohar Lal Sharma
B (respondent 1) and/or on the ground of default as
contemplated by s. l J(I)( d) of the Rent Act ?

On the evidence on these issues the Court may mould the final
relief copsistent with its findings.

With this direction the appeal is remanded to the first . ~

c appellate Court. In the circumstances of the case there will be no (

order as to costs. -\.

N.V.K. Appeal allowed.