judgement:
N: Criminal Appeal No. 520, of 1976.
Appeal by Special Leave from the judgment and order dated the 17th September, 1975 of the Delhi High Court in Criminal Misc.
(M) 212 of 1974 D. Mukherjee, and O.P. Sharma for the Appellant.
P.R. Mridul, B.P. Mridul, B.P. Maheshwari and Suresh Sethi for the Respondents.
The Judgment of the Court was delivered by SEN, J.
This appeal by special leave from a judgment of the Delhi High Court upholding an order of the Metropolitan Magistrate, Delhi, raises a question of some public importance.
The question is as to whether the appellant, who is a member of the Indian Administrative Service, and whose services were placed at the disposal of the Cooperative Store Ltd., a society registered under the Bombay Cooperative Societies Act, 1925 (hereinafter called the Society), was a public servant within the meaning of cl.
Twelfth of section 21 of the Indian Penal Code, 1860, for purposes of section 197 of the Code of Criminal Procedure, 1973.
The question arises in this way.
The appellant is a member of the Indian Administrative Service.
By notification No. 27 942 Estt. 1, dated 23rd April, 1972, issued by the Government of India in the Ministry of Agriculture (Department Agriculture), the services of the appellant, who was a Joint Commissioner (State Liaison) in that Ministry, were placed at the disposal of the Department for his appointment as the General Manager, Super Bazaar, Connaught Place, New Delhi with effect from April 7, 1972, on which date he took over charge as General Manager.
At the request of the Managing Committee of the Society, the Government of India extended the period of his deputation for a further period of one year with effect from April 7, 1973.
On completion 867 of his period of deputation, the appellant reverted as Joint Secretary in the Ministry of Agriculture.
On October 10, 1973, the Food Inspector purchased a sealed bottle of honey from the Super Bazaar at the INA Market.
The Public Analyst 's report showed the honey to be adulterated.
On April 5, 1974, the Municipal Corporation, Delhi, filed a complaint against the appellant and other officials of the Super Bazaar as also against the manufacturer of honey for having committed an offence punishable under section 7 read with section 16 of .
On being summoned by the Metropolitan Magistrate, Delhi, to appear before him as an accused, the appellant raised a preliminary objection that the taking of cognizance of the alleged offence by the Magistrate was barred under section 197 of the Code of Criminal Procedure, 1973, for want of sanction of the Central Government, since the act complained of was nothing but an act done by him in the discharge of his duties as a public servant.
The Metropolitan Magistrate, Delhi, by his order dated October 9, 1974, rejected the objection, holding that the appellant, at the time of commission of the alleged offence, was not a public servant within the meaning of cl.
Twelfth of section 21 of the Indian Penal Code and, therefore, he was competent to take cognizance of the alleged offence.
In coming to that conclusion, the learned Magistrate held that the services of the appellant having been placed at the disposal of the Society, he was in foreign service under FR 9 (7) and, therefore, could not be regarded as a public servant within the meaning of cl.
Twelfth of section 21 of the Indian Penal Code for two reasons, namely: (a) as the General Manager, he was not an officer in the service or pay of the Government, and (b) while functioning as General Manager, he was not employed in connection with the affairs of the Union.
On appeal, the High Court confirmed the view of the learned Magistrate.
The short question that falls for our determination in this appeal is whether a member of the Indian Administrative service, whose services are placed at the disposal of an organisation which is neither a local authority, nor a corporation established by or under a Central, Provincial or State Act, nor a Government Company, by the Central Government or the Government of a State, can be treated to be a 'public servant ' within the meaning of cl.
Twelfth of section 21 of the Indian Penal Code for purposes of section 197 of 868 the Code of Criminal Procedure, 1973.
The answer to the question turns on the construction of cl.
Twelfth of section 21 of the Indian Penal Code, 1860 and section 197 of the Code of Criminal Procedure, 1973, which, so far as they are relevant, are as follows: 21.
The words 'public servant ' denote a person falling under any of the descriptions hereinafter following, namely: Twelfth: Every person (a) in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government; (b) in the service or pay of a local authority, a corporation established by or under a Central, Provincial or State Act or a Government company as defined in section 617 of the .
section 197 Prosecution of Judges and public servants.
(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction: (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; In support of the appeal, learned counsel for the appellant has urged two grounds.
The first is that the chain of Departmental Stores known as Super Bazaar at Connaught Place, New Delhi, together with 12 other super bazaars in the metropolitan city of Delhi, including the one at the INA market, is nothing but a com 869 mercial activity of the Central Government and, therefore, the appellant was, at the time of the, commission of the alleged offence, employed in connection with the affairs of the Union.
That being so, the prosecution could not be launched without sanction from the Central Government under section 197 of the Code of Criminal Procedure, 1973.
The second is that the Cooperative Store Limited which runs the super bazaars, having been registered under section 10 of the Bombay Cooperative Societies Act, 1925, was a body corporate by virtue of section 23 of that Act and, therefore, the appellant was a public servant within the meaning of cl.
Twelfth of section 21 of the Indian Penal Code.
It is said that although the appellant may not be covered by sub cl.
(a), he falls within the ambit of sub cl.
(b) of cl.
Twelfth.
We find it difficult to accept these submissions.
Clause Twelfth of section 21 of the Indian Penal Code protects two classes of public servants, viz., (a) every person in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government, and (b) every person in the service or pay of a local authority, a corporation established by or under a Central, Provincial or State Act or a Government company as defined in section 617 of the .
The appellant does not answer any of these descriptions.
During his period of deputation, he was not an officer in the service or pay of the Government, nor was he in the service of a local authority, a corporation established by or under an Act or a Government company.
It is, however, urged that the expression 'corporation ' appearing in sub cl.
(b) of cl.
Twelfth of section 21 of the Indian Penal Code is wide enough to include not only a corporation established by or under a Central, Provincial or State Act, but also a body corporate.
The submission proceeds on the basis of section 23 of the Bombay Cooperative Societies Act, 1925, which reads: 23.
The registration of a society shall render it a body corporate by the name under which it is registered, with perpetual succession and a common seal, and with power to hold property, to enter into contracts, to institute and defend suits and other legal proceedings and to do all things necessary for the purposes of its constitution.
Clause Twelfth does not use the words "body corporate", and the question is whether the expression "corporation" contained therein, taken in collocation of the words "established by or under a Central, Provincial or State Act" would bring within its sweep a cooperative 870 society.
Indubitably, the Cooperative Store Limited is not a corporation established by a Central or State Act.
The crux of the matter is whether the word 'under ' occurring in cl.
Twelfth of section 21 of the Indian Penal Code makes a difference.
Does the mere act of incorporation of a body or society under a Central or a State Act make it a corporation within the meaning of cl.
Twelfth of section 21? In our opinion, the expression 'corporation ' must, in the context, mean a corporation created by the Legislature and not a body or society brought into existence by an act of a group of individuals.
A cooperative society is, therefore, not a corporation established by or under an Act of the Central or State Legislature.
A corporation is an artificial being created by law having a legal entity entirely separate and distinct from the individuals who compose it with the capacity of continuous existence and succession, notwithstanding changes in its membership.
In addition, it possesses the capacity as such legal entity of taking, holding and conveying property, entering into contracts, suing and being sued, and exercising such other powers and privileges as may be conferred on it by the law of its creation just as a natural person may.
The following definition of corporation was given by Chief Justice Marshall in the celebrated Dartmouth College case : A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law.
Being the mere creature of law, it possesses only these properties which the charter of its creation, confers upon it, either expressly or as incidental to its very existence.
These are such as are supposed best calculated to effect the object for which it was created.
Among the most important are immortality, and, if the expression may be allowed, individuality; proper ties, by which a perpetual succession of many persons are considered as the same, and may act as a single individual.
They enable a corporation to manage its own affairs, and to hold property, without the perplexing intricacies, the hazardous and endless necessity, of perpetual conveyances for the purpose of transmitting it from hand to hand.
It 871 is chiefly for the purpose of clothing bodies of men, in A succession, with these qualities and capacities, that corporations were invented, and are in use.
By these means, a perpetual succession of individuals are capable of acting for the promotion of the particular object, like one immortal being.
The term 'corporation ' is, therefore, wide enough to include private corporations.
But, in the context of cl.
Twelfth of section 21 of the Indian Penal Code, the expression 'corporation ' must be given a narrow legal connotation.
Corporation, in its widest sense, may mean any association of individuals entitled to act as an individual.
But that certainly is not the sense in which it is used here.
Corporation established by or under an Act of Legislature can only mean a body corporate which owes its existence, and not merely its corporate status, to the Act.
For example, a Municipality, a Zilla Parishad or a Gram Panchayat owes its existence and status to an Act of Legislature.
on the other hand, an association of persons constituting themselves into a Company under the or a Society under the Societies Registration Act owes its existence not to the Act of Legislature but to acts of parties though, it may owe its status as a body corporate to an Act of Legislature.
There is a distinction between a corporation established by or under an Act and a body incorporated under an Act.
The distinction was brought out by this Court in Sukhdev Singh & ors.
vs Bhagatram Sardar Singh Raghuvanshi & ors.
It was observed: A company incorporated under the is not created by the but comes into existence in accordance with the provisions of the Act.
There is thus a well marked distinction between a body created by a statute and a body which, after coming into existence, is governed in accordance with the provisions of a statute.
In Sabhajit Tewary vs Union of India and ors the question arose whether the Council of Scientific and Industrial Research which was a society registered under the Societies Registration Act, was a statutory body.
It was 872 urged that because the Council of Scientific and Industrial Research had government nominees as the President of the body and derived guidance and financial aid from the Government, it was a statutory body.
Repelling the contention, the Court observed: The Society does not have a statutory character like the Oil and Natural Gas Commission, or the Life Insurance Corporation or Industrial Finance Corporation.
It is a society incorporated in accordance with the provisions of the Societies Registration Act.
The fact that the Prime Minister is the President or that the Government appoints nominees to the Governing Body or that the Government may terminate the membership will not establish anything more than the fact that the Government takes special care that the promotion, guidance and co operation of scientific and industrial research, the institution and financing of specific researches, establishment or development and assistance to special institutions or departments of the existing institutions for scientific study of problems affecting particular industry in a trade, the utilisation of the result of the researches conducted under the auspices of the Council towards the development of industries in the country are carried out in a responsible manner.
Whatever has been said with regard to the Council of Scientific and Industrial Research, which was a society registered under the Societies Registration Act, equally applies to the Cooperative Store Limited, which is a society registered under the Bombay Cooperative Societies Act, 1925.
It is not a statutory body because it is not created by a statute.
It is a body created by an act of a group of individuals in accordance with the provisions of a statute.
The Super Bazaar at Connaught Place together with its 12 branches in Delhi, is not an instrumentality of the State.
In a welfare State like ours, there is greater participation by Government in various commercial activities.
Some times the Government directly engages itself in such commercial activities by acquiring a monopoly in trade in the public interest.
Or it may, by an Act of Legislature, establish statutory corporations like the State Trading Corporation, Life Insurance Corporation of India, the Industrial Finance Corporation, the Oil and Natural Gas Commission etc.
, or it may set up Government companies under section 617 of the , like the Hindustan Steel Limited etc.
By no stretch of imagination, could it be said that the appellant was employed in connection with the 873 affairs of the Union within the meaning of section 197 of the Code of Criminal Procedure, 1973.
The Super Bazaars are not owned by the Central Government.
They are owned and managed by the Cooperative Store Limited.
Pursuant to an agreement executed between the Cooperative Store Limited and the Union of India, the Central Government has advanced a loan of Rs. 40,00,000/ to the Society for establishment and management of the Super Bazaars, and the Central Government also holds more than 97% shares in the total share holding of the Society.
Clause 6 of the Agreement provides: That the incumbents of supervisory and other key posts including those of General Manager, Deputy General Manager, Finance Manager, Asst.
General Manager, Purchase Manager, Sales Manager and Accounts Manager, by whatever other designation they may be known shall not be appointed or removed from their posts by the Debtor except with the prior approval of the Creditor in writing.
The Super Bazaar at Connaught Place and at various other places are run by the Cooperative Store Limited under the control of the Ministry of Agriculture (Department of Cooperation).
The incumbents of supervisory and other key posts including that of the General Manager cannot be appointed or removed without the prior approval of the Central Government.
The whole purpose of cl. 6 of the Agreement in the matter of appointment of General Manager and other incumbents holding key posts is to safeguard interests of the Central Government.
Legally speaking, the Super Bazaars are owned and managed by the Society and not by the Central Government and, therefore, the appellant was not employed in connection with the affairs of the Union within the meaning of section 197 of the Code of Criminal Procedure, 1973.
Explanation to r. 2 (a) of the All India Services (Conduct) Rules, 1968 and r. 2 (c) of the All India Services (Discipline and Appeal) Rules, 1969, on which reliance was placed, can be of no avail.
Explanation to r. 2 (a) enlarges the meaning of the expression "serving in connection with the affairs of the Union or in connection with the affairs of the State".
It provides that a member of the Service whose services are placed at the disposal of a company, corporation or other organisation or a local authority by the Central Government or the Government of a State.
shall.
for the 874 purpose of those rules, be deemed to be a member of the Service serving in connection with the affairs of the Union or in connection with the affairs of the State, as the case may be, notwithstanding that his salary is drawn from the sources other than the Consolidated Fund of India or the Consolidated Fund of that State.
The legal fiction contained in Explanation to r. 2 (a), is for a limited purpose.
This is evident by the use of the words "for purposes of these rules".
Rule 2 (c) of the All India Services (Discipline and Appeal) Rules, 1969 defines Government to mean (i) in the case of a member of the Service serving in connection with the affairs of a State, or who is deputed for service in any company, association or body of individuals whether incorporated or not, which is wholly or substantially owned or controlled by the Government of a State, or in a local authority set up by an Act of Legislature of a State, the Government of that State; and (ii) in any other case, the Central Government.
That again is for purposes of these rules.
These provisions cannot be pressed into service for improving upon the language of cl.
Twelfth of section 21 of the Indian Penal Code, 1860.
Before parting with the case, we would like to advert to one aspect.
It is common ground that the honey in question was sold in a sealed container bearing the manufacture 's warranty as to quality as required under r. 12 A of the Prevention of Adulteration Rules, 1955.
That being so, the learned Magistrate shall first determine whether or not the appellant was protected under section 19 (2) of the .
Subject to this observation, the appeal fails and is dismissed.
There shall be no order as to costs.
P.B.R. Appeal dismissed.

summary:
The services of the appellant, a Member of Indian Administrative Service, were placed at the disposal of the Co operative Store Ltd. for being appointed as the General Manager of the Super Bazaars run by the Co operative Store.
On a complaint being filed against the appellant for commission of alleged offence punishable under section 7 read with section 16 of the before the Metropolitan Magistrate Delhi the appellant contended that he was a public servant within the meaning of clause Twelfth of section 21 of the Penal Code, that the act complained of was done by him in the discharge of his duties as a public servant and that since, as required by section 197, Cr.
P.C., previous sanction of the Central Government had not been obtained the court was not competent to take cognizance of the offence.
The Magistrate rejected all these contentions.
He held that the appellant could not be regarded as a public servant within the meaning of clause Twelfth of section 21 and that at the relevant time he was neither in the service or pay of the Government nor was he employed "in connection with the affairs of the Union".
The High Court, on appeal, upheld tho view of the Magistrate.
Before this Court it was contended that the term "corporation" used in clause Twelfth of section 21 is wide enough to include not merely a statutory corporation but also a body corporate such as the Cooperative Stores 865 established under the State Act like the Bombay Cooperative Societies Act, 1925 and that as General Manager he was employed in connection with the affairs of the Union by reason of the fact that the Central Government had advanced a huge loan to the Society for carrying on commercial activities.
Dismissing the appeal, ^ HELD: The appellant does not answer any of the essential requirements of clause Twelfth of section 21 I.P.C. He was neither an officer in the service or pay of the Government nor of a local authority, a corporation established by or under an Act or a Government company.
[869 D] Mere incorporation of a society under a Central or State Act does not make a body a corporation within the meaning of clause Twelfth of section 21.
The expression "corporation" must, in the context, mean a corporation created by the legislature and not a body or society brought into existence by an act of a group of individuals.
A cooperative society is, therefore, not a corporation established by or under an Act of the Central or State legislature.
[870 B] Corporation in its widest sense may mean any association of individuals entitled to act as an individual.
But that is not the sense in which it is used in clause Twelfth of section 21.
There is a well marked distinction between a body created by a statute and a body which, after coming into existence, is governed in accordance with the provisions of a statute.
A corporation established by or under an Act of legislature can only mean a body corporate which owes its existence, and not merely its corporate status to the Act.
An association of persons constituting themselves into a company under the Companies Act or a society under Societies.
Registration Act owes its existence not to the Act of legislature but to acts of parties though it may owe its status as a body corporate to an Act of the legislature.
[871 C G] In the instant case the Cooperative Society was a society registered under the Bombay Cooperative Societies Act.
It is not a body created by a statute but a body created by an act of a group of individuals in accordance with the provisions of the statute.
[872 F] Nor did the fact that the Central Government had advanced a huge loan to the Society and held major shares in the total shareholding of the Society make the Super Bazaars run by the Society an instrumentality of the State and the appellant "employed in connection with the affairs of the Union" within the meaning of section 197, Cr.
P.C. [872 H 873 B] The clause in the agreement advancing the loan to the Society which provided that the General Manager and other important incumbents of key posts shall not be appointed or removed from their posts by the Society except with the prior approval of the Government in writing was merely incorporated to safeguard the interests of the Central Government.
Legally the Super Bazaars were owned and managed by the Society and not by the Central Government [873 E F] Explanation to rule 2 (a) of the All India Services (Conduct) Rules, 1968 which provides that a member of the services whose services were Placed at the 866 disposal of any organisation by the Central Government shall, for the purposes of these rules, be deemed to be a member of the service serving in connection with the affairs of the Union notwithstanding that his salary is drawn from sources other than the Consolidated Fund of India serves a limited purpose, that is, "for the purposes of these Rules".
Similarly rule 2(c) of the All India Services (Discipline and Appeal) Rules, 1969 is for the purposes of these Rules.
These two Rules could not be pressed into service for improving the language of clause Twelfth of section 21 of the Penal Code.
[873 G, 874 D]


judgement:
Civil Appeal No. 1108 of 1976.
Appeal by special leave from the judgment and order dated the 17th April 1976 of the Madhya Pradesh High Court in Second Appeal No. 113 of 1969.
S.K. Mehta, P.N. Puri and E.M.S. Anam for the Appellants.
P.P. Juneja for the Respondent.
The following Judgments were delivered DESAI, J. A tenant under a decree of eviction is the appellant in this appeal by special leave.
609 Respondent landlord filed a suit for recovery of possession of premises being a small shop admeasuring 7 'X 22 ' forming part of a big non residential building situated in Sadar Bazar, Bilaspur town in Madhya Pradesh on two grounds, to wit: (i) that he (landlord) intended to open a medicine shop and he had no other reasonably suitable accommodation for the same in the town; and (ii) that he (landlord) required the suit building for the purpose of reconstruction and repairs which could not be carried out unless it was vacated by the defendant.
The tenant resisted the suit pointing out that the landlord on his own admission as set out in plaint para 4 was in possession of a major portion of a non residential building of which he acquired possession from the firm of Goraldas Parmanand which accommodation was sufficient for starting the business of Chemists and Druggists shop.
It was also contended that the building was not in a dilapidated condition and did not need reconstruction and repairs.
The trial court recorded a finding that the building was in a dilapidated condition and reconstruction of it was essential and the landlord had sufficient funds to undertake reconstruction.
On the question of personal requirement of plaintiff to start a medicine shop, the trial court recorded a finding that in the front portion of building landlord would start his business as Chemists and Druggists and the rear of the building would be utilized by him for his residence.
It was further held that as the landlord 's requirement was a composite one in that he wanted to reconstruct the building and then use the whole of it for himself, therefore, the tenant was not entitled to be inducted in the reconstructed building which he would have been entitled to claim under section 18 of the Madhya Pradesh Accommodation Control Act, 1961 ( 'Act ' for short).
An appeal by the tenant to the District Court elicited in para 20 a finding that though the landlord was studying he might choose his career for business after he completed his education and he had got Rs. 8,000 in a fixed deposit account in a bank and even though he obtained a decree against the firm of M/s. Goral Parmanand he had not got actual possession as the litigation was still pending and, therefore, the plaintiff 's requirement of the whole building was established.
The finding that the house was in dilapidated condition and required reconstruction was affirmed.
When the matter reached the High Court in second appeal by the tenant an application under Order VI, rule 17, Code of Civil 610 Procedure, was made praying for an amendment to the written statement alleging that the firm Goraldas Parmanand has vacated the whole of the remaining portion of the building excluding the premises in possession of the tenant measuring 7 ' X 22 ' and that the plaintiff has obtained actual possession of the same and if this aspect was taken into consideration the plaintiff landlord would not be entitled to a decree for eviction under section 12(1)(f) of the Act.
The High Court rejected the application observing that the adjoining portion occupied by firm Goraldas Parmanand was vacated by the firm as far back as in the year 1972 and therefore the application for amendment filed 3 1/2 years after the filing of the appeal must be rejected on the ground of delay and laches.
Further, despite the judgment of this Court in Pasupuleti Venkateswarlu vs The Motor and General Traders, the High Court felt considerable hesitation in taking note of this event subsequent to the passing of the decree for eviction by the trial court because of its earlier decision in Taramal vs Laxaman Sewak and Ors in which it was held that the definition of 'tenant ' in the Act would not enable a tenant, though in possession but against whom a decree or order for eviction has been made, to invite the Court to take notice of events subsequent to the passing of the decree for eviction by the trial court.
The decision of this Court was distinguished on the ground that the definition of the expression 'tenant ' in Andhra Pradesh Building (Lease Rent and Eviction) Control Act, 1960, was somewhat different and was wide enough to include such persons.
The High Court accordingly rejected the application and dismissed the second appeal confirming the decree for eviction.
Section 12(1)(f) under which eviction of the tenant is sought by the landlord reads as under: "that the accommodation let for non residential purposes is required bona fide by the landlord for the purpose of continuing or starting his business or that of any of his major sons or unmarried daughters if he is the owner thereof or for any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonably suitable non residential accommodation of his own in his occupation in the city or town concerned.
" In order to be able to seek eviction of a tenant under section 12(1)(f) the landlord has not only to establish that he bona fide requires the 611 accommodation let to the tenant for non residential purposes for the purpose of continuing or starting his business but he must further show that the landlord has no other reasonably suitable nonresidential accommodation of his own in his occupation in the city or the town concerned.
The landlord in this case seeks eviction of the tenant from a building let for non residential purpose.
He can obtain possession either for continuing or starting his business.
He was a student at the relevant time.
He appeared to have completed his education thereafter.
It is stated in the plaint unambiguously that he wanted to start business by opening a medicine shop.
In other words, he wanted to start a Chemist and Druggist shop.
He must, therefore, show that he has not got in his possession a reasonably suitable non residential accommodation of his own in his occupation in the town of Bilaspur.
The suit building, as earlier observed, is in the city of Bilaspur and situated in Sadar Bazar, obviously a business locality.
Respondent landlord claims to be the owner of the whole building.
The suit premises in possession of the tenant in which he is carrying on a small kirana shop admittedly admeasures 7 frontage on the main road and 22 in depth.
In other words it is 7 'X 22 '.
The whole building of which demised premises form a small part appears to be having a frontage of 28.
3 passage has to be excluded.
The premises in possession of the tenant has a frontage of 7.
The length of the building or what is styled as depth was given out to us as 90 by learned counsel for respondent landlord.
18 ' frontage with 90 ' depth was thus in possession of firm Goraldas Parmanand.
Respondent landlord had also initiated proceedings for obtaining possession of the premises occupied by firm Goraldas Parmanand on the same ground, namely, that he wanted to start his business of Chemists and Druggists in the building.
The question is whether the premises occupied by firm Goraldas Parmanand has been vacated by the firm.
If the answer is in affirmative, the respondent landlord has thus obtained vacant possession of the whole of the premises occupied by firm Goraldas Parmanand.
Looking to the map annexed to the plaint and the evidence led in the case and the dimensions of the premises stated at the hearing of this appeal the area vacated by the previous tenant would be 18 'X90 ' plus portion at the back of the premises occupied by the present appellant which would be 7 'X 68 ' and it 612 has come in possession of the respondent.
The last question would be if landlord obtained vacant possession subsequent to the decree passed against the present appellant tenant by the Trial Court, whether the subsequent event could be noticed by the court for moulding the decree against the present appellant tenant.
Section 12 starts with a non obstante clause thereby curtailing the right of the landlord to seek eviction of the tenant which he might have under any other law and the right of eviction is made subject to the overriding provision of section 12.
It is thus an enabling section.
In order to avail of the benefit conferred by section 12 to seek eviction of the tenant the landlord must satisfy the essential ingredients of the section.
The landlord in this case seeks eviction of the tenant under section 12(1)(f).
He must, therefore, establish (i) that he requires bona fide possession of a building let for non residential purpose for continuing or starting his business; and (ii) that he has no other reasonably suitable non residential accommodation of his own in his occupation in the city or town concerned.
The burden to establish both the requirements of section 12(1)(f) is squarely on the landlord.
And before an allegation of fact to obtain the relief required is permitted to be proved, the law of pleadings require that such facts have to be alleged and must be put in issue.
Ordinarily, therefore, when a landlord seeks eviction under section 12(1)(f) the court after satisfying itself that there are proper pleadings must frame two issues namely (i) whether the plaintiff landlord proves that he bona fide requires possession of a building let to the tenant for non residential purpose for continuing or starting his business, and (ii) whether he proves that he has no other reasonably suitable non residential accommodation of his own in the city or town concerned.
Without elaborating we must notice a well established proposition that any amount of proof offered without pleadings is generally of no relevance.
Turning to the pleadings in this case the plaintiff in para 6 of the plaint has stated as under: "The plaintiff intends to start his own business in the said building after the said reconstruction.
He intends to open a medicine shop therein.
The plaintiff bona fide requires the suit house for the above purpose.
He has no other suitable accommodation for the same in the town.
" The cryptic averment is that the plaintiff has not got any other reasonably suitable accommodation in the same town.
However, 613 in para 4 of the plaint it is stated 'that the major portion of the building is in occupation of the firm Goraldas Parmanand and the plaintiff has already obtained a decree for its eviction therefrom '.
The defendant in his written statement has in term stated that the defendant is in possession of a small portion of the building, the remaining portion of which was in possession of firm M/s. Goraldas Parmanand.
In para 6 of the written statement it is further stated that on his own admission, the plaintiff has got a suitable alternative accommodation being the premises for which a decree of eviction is obtained for doing business and which is more than sufficient for his requirement.
The learned Trial Judge framed Issue No. 2(a) on the question whether the plaintiff landlord had no other reasonably suitable accommodation of his own in his occupation in the city.
While recording finding on this issue the cryptic observation in para 19 of the judgment is that the plaintiff is a student and he has no other accommodation for starting his own business.
There is not the slightest reference to the decree admittedly obtained by the plaintiff against firm M/s. Goraldas Parmanand which firm was carrying on business in a portion of the building which the plaintiff himself has described as the major portion of the building, the suit premises being a small portion of the whole building.
In the first appeal this contention is disposed of by observing that the alternative accommodation which the defendant has pleaded in his written statement is under litigation and therefore it cannot be treated as available to the plaintiff. ' In the second appeal in the High Court the defendant appellant moved an application under Order VI Rule 17 for amendment of the written statement for elaborating what was already stated that not only the decree obtained by the plaintiff against the adjoining tenant of the same building namely firm of M/s. Goraldas Parmanand has become final but the plaintiff in execution of the decree way back in 1972 obtained actual possession of the whole of area occupied by that firm and that forms major portion of the whole building.
This application, though, in our opinion, to be wholly superfluous in view of the pleadings hereinbefore set out and in view of the fact that the burden of proof of establishing that the landlord was not in possession of a reasonably suitable accommodation in the same town was on the plaintiff was rejected on untenable ground that the defendant appellant was guilty of delay and laches.
This application for amendent deserves to be granted, and we grant the same.
What is its impact ? Even while rejecting the application the High Court in terms observed in para 4 of its judgment as under: 614 'Adjoining portion was vacated by firm Goraldas Parmanand as far back as in the year 1972 '.
The High Court thus had before it a fact beyond dispute and beyond controversy that the major portion of the building was vacated by the adjoining tenant way back in 1972.
This was an uncontroverted fact.
Therefore remand on this point is an exercise in futility because the fact alleged in the application for amendment is admitted.
After rejecting the application on wholly untenable ground the High Court in 1976 affirmed the finding wholly contrary to record as available at that stage that the plaintiff landlord had no other reasonably suitable non residential accommodation of his own in his occupation in the city even though on landlord 's own admission he had acquired vacant possession of a major portion of the building let for non residential purpose as far back as 1972.
In the course of hearing we were repeatedly told that the finding of facts are sacrosanct.
The finding of fact ignoring incontrovertible admitted position which would non suit the plaintiff if upheld would be travesty of justice.
The burden being on the plaintiff to show that he had no other reasonably suitable accommodation for carrying on the business which he wanted to start in the suit premises, it was for the plaintiff to show that he had not acquired possession from firm Goraldas Parmanand.
Alternatively the plaintiff should have shown that the said adjacent accommodation was not reasonably suitable for the business he wanted to start.
He has done neither.
On the contrary plaintiff has admittedly adopted a position in the plaint that he not only wanted suit premises but also the adjoining premises of which he had obtained possession for starting his business.
In such a situation if the High Court had kept in view that the plaintiff had already with him viz. possession of a building having 18 frontage on the main road and 90 depth plus portion at the back of the suit premises in his possession it would have to come to an affirmative conclusion that the plaintiff had sufficient accommodation for starting his business as a Chemists and Druggists.
It was no where pointed out by the plaintiff that the shop of Chemists and Druggists or a medicine shop would require frontage of more than 18 '.
18 ' frontage on a main road in a city like Bilaspur is sufficiently attractive and accommodating.
The depth of the shop as given out to us being 90 '; therefore landlord has now in his possession shop admeasuring 18 ' x 90 ' plus the area of 7 ' x 90 ' at the back of the suit premises being part of the same building.
Would this not provide more than ample accommodation to the plaintiff to start his business as a Chemists and Druggists ? Not one 615 word has been said that the accommodation which is already in possession of the plaintiff is neither suitable nor reasonably suitable nor sufficient for starting his business.
In fact the very stand of plaintiff landlord as accepted by the High Court that some portion at the back would be utilised by landlord for residence would affirmatively establish that landlord has more than enough vacant accommodation in possession for starting his business.
The difficulty which the High Court experienced was whether a tenant under a decree of eviction could invite the Court to take into consideration the events subsequent to passing of the decree which if noticed would non suit the landlord.
The definition of expression 'tenant ' in the Act excludes from its operation a person in possession against whom any order or decree for eviction has been made.
The High Court referred to its earlier judgment in Taramal 's case wherein it was held that the protection to a statutory tenant lapsed with the passing of a decree and such a person had no right to bring on record new circumstances which were not in existence at the date of the passing of the decree.
This approach wholly overlooks the scheme of the Rent Restriction Act.
The M.P. Act enables a landlord to seek eviction of a tenant and obtain possession under various circumstances set out in section 12.
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 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 616 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 heirarachy 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 617 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 618 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.
The landlord wants to start his business as Chemists and Druggists.
On his own admission he has in his possession a shop admeasuring 18 ' X 90 ' plus 7 ' X 68 ' forming part of the same building the remaining small portion of 7 ' X 22 is occupied by the tenant.
The landlord has not stated that so much space with 18 ' frontage is not reasonably suitable for starting his business as Chemist and Druggist.
In that view of the matter the plaintiff 's suit for eviction on the ground mentioned in section 12(1)(f) must fail and this is being done by not disturbing any finding of fact but relying upon the admission of the plaintiff himself.
There is an error apparent on the face of the record inasmuch as when the High Court was faced with a dilemma whether the landlord required the whole of the building including demised premises now in possession of the appellant tenant for starting his business of Chemists and Druggists and when the High Court had before it an indisputable fact that the respondent landlord has obtained vacant possession of a major portion of the building which was in possession of firm M/s. Goraldas Parmanand, was it necessary for him to have any additional accommodation ? The High Court got over this dilemma by observing and by affirming the finding of the subordinate courts that the remaining portion of the premises would be used by the landlord for his residence and even though the portion utilised for the purpose of running the business would be smaller compared to the one to be utilized for the residence it would still not be violative of sub section (7) of sec.
12 because such a composite user would not radically change the purpose for which the accommodation was let.
This finding is contrary to record and pleadings.
Minutely scanning the plaint presented by the landlord there is not the slightest suggestion that he needs any accommodation for his residence.
He has not even stated whether at present he is residing in some place of his own though he claimed to be residing in the same town.
He does not say whether he is under any obligation to surrender that premises.
Section 12(1)(e) specifically provides for a landlord obtaining possession of a building let for residential purposes if he bona fide requires the same for his own use and occupation.
But there is an additional condition he must fulfil namely he must further show that he has no other reasonably suitable residential accommodation of his own in his 619 occupation in the city or town concerned.
Utter silence of the landlord on this point would be a compelling circumstance for the court not to go in search for some imaginary requirement of the landlord of accommodation for his residence.
In the context of these facts the Trial Court and the first Appellate Court committed a manifest error apparent on the record by upholding the plaintiff 's case by awarding possession also on the ground neither pleaded nor suggested.
The landlord must have been quite aware that he cannot obtain possession of any accommodation for his residence.
There fore, the finding of the High Court and courts subordinate to it that the respondent landlord requires possession of the whole of the building including the one occupied by the tenant for starting his business as Chemists and Druggists as also for his residence is vitiated beyond repair.
Once impermissible approach to the facts of the case on hand is avoided although facts found by the Courts are accepted as sacrosanct yet in view of the incontrovertible position that emerges from the evidence itself that the landlord has acquired major portion of the building in which he can start his business as Chemists and Druggists he is not entitled to an inch of an extra space under section 12(1)(f) of the Act.
Respondent landlord also sought possession on the ground set out in section 12(1)(h) which reads as under: "that the accommodation is required bona fide by the landlord for the purpose of building or rebuilding or making thereto any substantial additions or alternations and that such building or re building or alterations cannot be carried out without the accommodation being vacated." In order to obtain possession under section 12(1)(h) the landlord again has to establish his bona fide requirement of the accommodation in possession of the tenant for the purpose of building or rebuilding or making thereto any substantial additions or alterations and must further show that such building or re building or alterations cannot be carried out without the accommodation being vacated.
The case of the landlord on this point is that he wants possession of the whole of the building including the suit premises and he has Rs. 8,000 in a fixed deposit account and that as the building is in a dilapidated condition, he would reconstruct the same and use it for himself both for residence and starting his business.
If landlord acquires possession under section 12(1)(h), section 620 18 imposes corresponding obligation which reads as under: "18.
Recovery of possession for repairs and rebuilding and re entry. (1) In making any order on the grounds specified in clause (g) or clause (h) of sub section (1) of Sec. 12, the Court shall ascertain from the tenant whether he elects to be placed in occupation of the accommodation or part thereof from which he is to be evicted and, if the tenant so elects, shall record the fact of the before election in the order and specify therein the date on or which he shall deliver possession so as to enable the landlord to commence the work of repairs or building or re building, as the case may be." The courts declined to grant any relief to the tenant under section 18 on the ground that as the landlord 's requirement is a composite one, the tenant is not entitled to be re inducted in the building that may be reconstructed by the landlord after obtaining possession of the same.
Now once it is held that the landlord is not entitled to possession for his residence and he has more than enough accommodation in his possession for carrying on his business, the composite requirement disappears.
Landlord 's case will, therefore, have to be exclusively examined in the context of section 12(1)(h).
Two contentions were urged on behalf of the appellant to negative the case of the landlord in this behalf; one that the building is not in a dilapidated condition and secondly it can be repaired without vacating the premises.
As all the courts have concurrently found that the building is in a dilapidated condition, this finding is entitled to respect and it is not proper for us to interfere with the same.
The question would however be whether the landlord wants to reconstruct the demised portion of the premises even though he is not entitled to acquire possession of the same for his use and that he would be under an obligation to re induct the tenant after its construction.
The further question is whether the landlord is interested in reconstructing the whole building.
It was alternatively contended that no attempt is made to find out whether the landlord would be in a position to reconstruct that part of the building which has come in his possession once he is not in a position to acquire possession of the demised premises for his own use.
This situation calls for a fresh examination of the case of the landlord under section 12(1)(h).
If landlord is to be awarded possession under section 12(1)(h) on the footing that, that is the only ground on which he can seek possession, it will have to be found out after giving oppor 621 tunity to the landlord to prove whether he is interested in re building that portion of the building which is occupied by the appellant and further the court should give necessary direction under section 18.
In that event the court will have also to ascertain whether the portion which is now in possession of the landlord and which he may be interested in reconstructing can be reconstructed without the tenant vacating the demised premises.
As the whole foundation of the landlord 's case of composite requirement disappears the matter has to be examined afresh on the footing that the landlord has come to the court for possession under section 12(1)(h) only and if he succeeds in his prayer for possession on the ground mentioned in section 12(1)(h) it would be necessary for the court to give appropriate direction under section 18 of the Act.
As the matter has not been examined from this angle by any Court it has become inevitable, even though the litigation is pending for a long time, to remit the case for examination of this aspect.
The question is whether the remand should be to the first appellate court or to the trial court.
As the first appellate court is the fact finding court, in our opinion it would be appropriate for us to remit the case, after setting aside the decree of the first appellate court as well as the High Court, to the first appellate court to ascertain : (i) Whether the landlord is interested in reconstructing that portion of the building which is in possession of the tenant as demised premises; (ii) Whether the landlord would be in a position to reconstruct the building in his possession without the tenant being required to vacate the demised premises; and (iii)if the first two queries are answered in favour of the landlord, what should be the appropriate directions to be given in favour of the tenant as enjoined by section 18 ? Accordingly, this appeal is allowed and the decree of eviction made by the trial court and confirmed by the 1st appellate court and also by the High Court is set aside.
The prayer of the landlord for possession under section 12(1)(f) is negatived as he is not entitled to recover possession on the ground mentioned in section 12(1)(f).
The matter is remanded to the 1st Appellate Court for the limited purposes set out in the just preceding paragraph.
In the circumstances of the case there will be no order as to costs.
622 PATHAK J. This is tenant 's appeal by special leave against the judgment of the High Court of Madhya Pradesh arising out of a suit for ejectment.
The suit was filed by the respondent, Raghunath Prasad.
He claimed to be the owner of a building in Sadar Bazar, Bilaspur.
One portion of the building was occupied by a firm Goraldas Permanand.
According to the plaint, the entire building was in a dilapidated condition and the plaintiff intended to reconstruct the front portion of the building and to effect major repairs in the rear portion.
In order to do so it was said to be necessary that the defendants should vacate the accommodation.
In regard to the other portion, the plaintiff stated that he had obtained a decree for ejectment against Goraldas Parmanand.
The plaintiff also alleged that he intended to start the business of a medicine shop and for that purpose he required the accommodation occupied by the defendants as it faced the main road in Sadar Bazar, and that he had no other suitable accommodation in the town for such business.
The suit was resisted by the defendants, and a number of pleas were taken.
In particular it was denied that the accommodation occupied by them was dilapidated and that it was bona fide required by the plaintiff.
It was claimed that in view of the decree for ejectment against Goraldas Parmanand the plaintiff had suitable alternative accommodation for his proposed business.
The trial court found that the entire building, including the accommodation occupied by the defendants, needed reconstruction and repairs, and that for the purpose of his projected business the plaintiff had bona fide need of the accommodation held by the defendants.
It was observed that the accommodation occupied by Goraldas Parmanand was still under litigation as an appeal was pending in the case.
Holding that the grounds under section 12(1) (f) and 12(1)(h) of the Madhya Pradesh Accommodation Control Act were made out, the suit was decreed for ejectment.
The defendants preferred an appeal, and the first appellate court while dismissing the appeal maintained the findings of the trial court and upheld the order of ejectment.
A second appeal by the defendants was dismissed by the High Court on 17th April, 1976.
During the pendency of the appeal the defendants moved an application under Order VI, Rule 17 of the Code of Civil Procedure for leave to amend their written statement 623 by adding the plea that the plaintiff had secured vacant possession of the adjoining portion of the building from Goraldas Parmanand in the year 1972, and that the case should be remanded for deciding whether the accommodation acquired was reasonably suitable for starting a medicine shop, the purpose for which the plaintiff said he required the accommodation held by the defendants.
The High Court rejected the application observing that it had been moved three and a half years after the event had taken place, that it was not made bona fide but was intended merely to gain time and would result in grave injustice to the plaintiff.
The High Court also observed that even if the amendment was allowed it would not affect the decision of the case, because as the plaintiff 's need extended to entire building his securing vacant possession of one part would not conclude the matter.
It was pointed out that the plaintiff intended to reconstruct the entire portion of the building including the accommodation occupied by the defendants, as well as effect major repairs to the rear portion of the building.
In place of the shop of the defendants with a frontage of 7 and a depth of 22 and the adjoining shop with a frontage of 10 and a depth of 90, the plaintiff intended to demolish the front portion of both the shops and to reconstruct the building with a new shop having a wide frontage of 22 ' and a depth of 7 ', and to reside in the rear portion of the building.
The High Court added that residence in the rear portion of the accommodation would not alter the nature of the accommodation as the residence would be incidental to the main purpose of carrying on the medicine business in the front portion of the building.
The defendants having obtained special leave from this Court this appeal is now before us.
As analysis of the plaint shows that the ejectment of the appellants was sought on two grounds.
The respondent intended to reconstruct the front portion of the dilapidated building and to repair the rear portion and according to him this required the appellants to vacate the accommodation occupied by them.
That clearly is the ground envisaged by section 12(1)(h), Madhya Pradesh Accommodation Control Act.
That ground stood on its own.
The respondent also intended to open a medicine shop in the front portion of the building, and he pleaded that he had no other accommodation for the purpose.
That brings into play section 12(1)(f) of the Act.
The plea shows that as the dilapidated building required reconstruction and repairs, the respondent indended to avail of the opportunity to so effect the structural alterations as to accommodate a medicine 624 shop which he planned to start as a business in the premises.
This latter ground arose as a sequel to the first.
If the first ground was made out, the appellants would have to vacate the portion held by them, and if that had been the only ground the court would automatically be called upon to consider section 18 of the Act, which entitles the tenant at his option to be reinstated in a portion of the reconstructed building.
There was the further ground that the respondent proposed to start his own business in the front portion of the building, and the finding of the High Court that the respondent wanted the rear portion of the building for his personal residence.
The subordinate courts were influenced by the consideration that although the respondent had obtained a decree for ejectment against Goraldas Parmanand, the case continued to be the subject of litigation and therefore it could not be said that the respondent was in possession of alternative accommodation.
However, while the second appeal was pending in the High Court the appellants applied for amendment of their written statement to include the plea that the respondent had meanwhile obtained possession from Goraldas Parmanand.
The High Court declined to permit the amendment.
In doing so, it seems to me that the High Court erred.
It was an essential part of the appellants ' defence from the outset that the portion let out to Goraldas Permanand constituted suitable alternative accommodation, and therefore they should not be ejected.
It is immaterial that the amendment was sought more than three years after possession of the portion had passed to the respondent.
The High Court was bound to take the fact into consideration because, as is well settled now, in a proceeding for the ejectment of a tenant on the ground of personal requirement under a statute controlling the eviction of tenants, unless the statute prescribes to the contrary the requirement must continue to exist on the date when the proceeding is finally disposed of either in appeal or revision, by the relevant authority.
That position, to my mind, is indisputable.
The High Court should have allowed the amendment.
The High Court, alternatively observed that the respondent wanted to accommodate his shop in the front portion of the building and therefore, of necessity, he would require the portion occupied by the appellants.
That conclusion is based on the findings rendered by the courts below, which findings the High Court respected as findings of fact.
But the High Court failed to note that both the courts below had proceeded on the assumption that the adjoining portion occupied by Goraldas Parmanand was not immediately available on account of litigation.
It is for that reason that permitting the amendment sought by the 625 appellants became relevant and, indeed, imperative.
If the respondent has obtained possession of that portion, and that does not seem to be disputed, it becomes a serious question for decision whether the respondent needs the front portion of the building for his medicine shop and, if so, according to dimensions proposed by him.
In the consideration of that question the element of the respondent 's need for the rear portion of the building for his personal residence must be ignored.
That need was never pleaded in the plaint and, as will be seen from section 12(1)(e) of the Act, several considerations need to be satisfied before the need can be held proved.
This aspect of the matter was apparently not brought to the notice of the High Court and therefore it fell into the error of taking this element into account.
My brother Desai has in his judgment held that the respondent can accommodate his medicine shop in the portion vacated by Goraldas Parmanand and he has indicated the dimensions of the shop which appear reasonable to him.
With great respect I am unable to concur with what he has said.
Whether or not the shop should be located in the front portion of the building and what should be its dimensions will turn on the evidence adduced by the parties in that behalf.
The original record of the suit is not before us, and without knowledge of the state of the evidence I would refrain from a finding on the point.
Indeed, it seems to me in the circumstances of this case to be pre eminently a task to be entrusted to a subordinate court.
The position which then emerges is this.
The respondent has made out his case under section 12(1)(h) of the Act that he requires the building, including the portion occupied by the appellants, for reconstruction of the front portion and repairs to the rear portion, and that necessitates that the appellants vacate their accommodation.
This matter is concluded by the concurrent findings of fact rendered by the trial court and the first appellate court.
It is also concluded by concurrent findings of fact that the respondent needs a portion of the building for starting the business of a medicine shop.
What should be the location of the shop and what its dimensions is a matter which remains for decision.
And there is the further question of considering the availability of section 18 of the Act to the appellants.
Both these questions, I think, should be left to the first appellate court.
Accordingly, I allow the appeal, set aside the judgment and decree of the High Court and of the first appellate court and remand 626 the case to the latter court for permitting the appellants to amend their written statement and allowing the parties to lead such evidence as is consequentially called for, and thereafter to decide the case afresh in the light of the observations made above.
I would leave the parties to bear their costs.
S.R. Appeal allowed.

dataset_name: IN-Abs

summary:
The respondent landlord filed two eviction suits for recovery of possession of a non residential building which were in occupation of a firm Goraldas Parmanand and the appellant tenant.
The portion occupied by the appellant including the frontage was 7x22.
In the view of the fact that the landlord obtained eviction order against the firm Goraldas Parmanand on the ground that the building was required for the purpose of reconstruction and repairs and also for bona fide requirement, in the later eviction suit filed against the appellant, in para 4 of the plaint the landlord stated that he was in possession of a major portion of the non residential building which he obtained from the firm M/s. Goraldas Parmanand.
The appellant contested the eviction suit filed against him on the ground, (a) that the premises was not in dilapidated condition and did not, therefore, need reconstruction and repairs and (b) that the landlord in view of his own admission in the plaint at para 4 has a reasonable suitable non residential accommodation of his own and therefore cannot claim his eviction under section (12)(1)(f) of the Madhya Pradesh Accommodation Control Act, 1961.
The trial court rejected the tenant 's pleas and passed an eviction order.
In appeal the first appellate court, while confirming the finding of the trial court that the building was in a dilapidated condition and required re construction and repairs, held that even though the landlord obtained a decree against the firm Goraldas Parmanand, he had not got actual possession, as the litigation was still pending and, therefore, the plaintiff 's requirements of the whole building was established.
In the second appeal before the High Court, an application under Order VI, Rule 17, Code of Civil Procedure, was made praying for an amendment to the written statement alleging that the firm Goraldas Parmanand has vacated the entire portion of the premises in his possession and the plaintiff landlord has obtained actual possession of a major portion of the building and if this aspect was taken into consideration the plaintiff landlord would not be entitled to a decree for eviction under section 12(1)(f) of the Act.
The High Court rejected 606 the application observing that the adjoining portion occupied by firm Goraldas Parmanand was vacated by the firm as for back as in the year 1972 and, therefore, the application for amendment filed 3 1/2 years after the filing of the second appeal must be rejected.
Further it was of the view that the definition of "tenant" in the Madhya Pradesh Act would not enable a tenant, though in possession but against whom a decree or order for eviction has been made, to invite the court to take notice of events subsequent to the passing of the decree for eviction by the trial court.
The High Court, accordingly confirmed the decree for eviction hence, the appeal by the tenant after obtaining special leave of the Court.
Allowing the appeal and remanding the matter to the first appellate court with directions, the Court ^ HELD: 1.
Before an allegation of fact to obtain the relief required is permitted to be proved, the law of pleadings require that such facts have to be alleged and must be put in issue.
Any amount of proof offered without pleadings is generally of no relevance.
In order to be able to seek eviction of a tenant under section 12(1)(f) of the Madhya Pradesh Accommodation Control Act, 1961, the landlord has to allege and establish (i) that he bonafide requires the accommodation let to the tenant for non residential purposes for the purpose of continuing or starting his business and (ii) that he has no other reasonably suitable non residential accommodation of his own in his occupation in the city or the town concerned.
The burden to establish both the requirements of section 12(1)(f) is squarely on the landlord.
[610 H, 611 A, 612 D and F] 2.
The application under Order VI Rule 17, Civil Procedure Code, in view of the averments in the written statement is wholly superfluous.
However, in view of the pleadings in the instant case, it must be granted because "the burden of proof of establishing that the landlord was not in possession of a reasonably suitable accommodation in the same town was on the plaintiff" it was wrongly rejected by the High Court on untenable ground that the defendant appellant was guilty of delay and laches ignoring incontrovertible admitted position which would non suit the respondent plaintiff.
[613 E G] 3:1.
The definition of expression "tenant" in the Madhya Pradesh Accommodation Control Act, 1961 excludes from its operation a person in possession against whom any order or decree for eviction has been made.
The decree means the decree of the final court.
This is so because once an appeal against decree or order of eviction is preferred, the appeal is a continuation of suit.
[615 C, 616 B] 3:2.
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 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.
The tenant is entitled to show that the need or requirement no more exists by pointing out such subsequent events, to the court including the appellate court.
Otherwise the landlord would 607 derive an unfair advantage, and it would be against the spirit or intendment of Rent Restriction Act which was enacted to fetter the unfettered right of re entry.
In such a situation it would be 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.
But the tenant can be precluded from so contending when decree or order for eviction has become final.
[616 C G] Pasupuleti Venkateswarlu vs The Motor and General Traders, ; , followed.
Taramal vs Laxman Sewak and Ors., 1971 Madhya Pradesh Law Journal p. 888, overruled.
In the instant case; (i) relying on the admission of the plaintiff himself that he has in his possession a shop admeasuring 18/x68 plus 7/x68 forming part of the same building and his failure to state that the space with 18 frontage is neither suitable not reasonably suitable nor sufficient for starting his business as Chemist and Druggist, the plaintiff 's suit for eviction on the ground mentioned in section 12(1)(f) of the Madhya Pradesh Act must fail; (ii) the finding of the courts below that the respondent requires possession of the whole of the building including the one occupied by the tenant for starting his business as Chemist and Druggist as also for his residence is vitiated beyond repair.
The observation of the High Court that the remaining portion of the premises would be used by the landlord for his residence and even though the portion utilised for the purpose of running the business would be smaller compared to the one to be utilised for the residence it would still not be violative of sub section (7) of section 12 because such a composite user would not radically change the purpose for which the accommodation was let, is contrary to records and pleadings.
[618 B C, D F, 619 B C] 4:1.
In order to obtain possession under section 12(1)(h) of the Madhya Pradesh Act the landlord has to establish his bonafide requirement of the accommodation in possession of the tenant for the purpose of building or rebuilding or making thereto any substantial additions or alterations and must further show that such building or re building or alterations cannot be carried out without the accommodation being vacated.
If the landlord succeeds in his prayer for possession on the ground mentioned in section 12(1)(h), it would be necessary for the court to give appropriate directions under section 18 of the Act.
[619 F G, Here, as the matter has not been examined from this angle by any court, even though the litigation is pending for a long time, the case requires to be remanded to the first appellate court to ascertain: (i) whether the landlord is interested in re constructing that portion of the building which is in possession of the tenant as demised premises; (ii) whether the landlord would be in a position to reconstruct the building in his possession without the tenant being required to vacate the demised premises and (iii) if the first two queries are answered in favour of the landlord, what should be the appropriate directions to be given in favour of the tenant as enjoined by section 18 of the Act.
[621 C F] 608 Per Pathak, J. (Concurring) 1.
In a proceeding for the ejectment of a tenant on the ground of personal requirement under a statute controlling the eviction of tenants, unless the statute prescribes the contrary the requirement must continue to exist on the date when the proceeding is finally disposed of, either in appeal or revision, by the relevant authority.
Here, the High Court should have allowed the application for amendment of the written statement under Order VI Rule 17, Civil Procedure Code.
[624 E F] 2.
Before the need for personal residence can be held proved, several considerations need to be proved under section 12(1)(e) of the Act.
The omission to draw the attention of the High Court to the fact that the need for personal residence was never pleaded in the plaint led the High Court to fall into error in taking this element into account.
[625 B C] Per Contra: 3:1.
In the instant case, it is clear from the concurrent findings of the courts below that (a) the respondent has made out his case under section 12 (1)(h) of the Act that he requires the building including the portion occupied by the appellants for the re construction of the front portion and repairs to the rear portion and that necessitates that the appellants vacate their accommodation and (b) the respondent needs a portion of the building for starting the business of a medicine shop.
[625 E G] 3:2.
Whether or not the shop should be located in the front portion of the building and what should be the dimensions of the proposed Chemist and Druggist shop will turn on the evidence adduced by the parties in that behalf, Giving a finding on this point, in the circumstances of this case, is pre eminently a task to be entrusted to a subordinate court.
The questions for consideration by the appellate court are: (i) what should be the location of the shop and what should be the dimensions in the matter and (ii) availability of the benefit under section 18 of the Act to the appellants.
[625 D E]


judgement:
Civil Appeal No. 318 of 1978.
41 From the judgment and order dated 8th November 1978 of the High Court of Delhi at New Delhi in C.W. No. 786 of 1978.
Appellant in person P.A. Francis, Miss A. Subhashini and R.N.Poddar, for Respondent No. 1.
R.N. Sharma, R. N. Poddar and N.N. Sharma, for Respondent Nos. 2 and 3.
The Judgment of the Court was delivered by PATHAK, J.
This appeal by special leave is directed against the judgment of the High Court of Delhi dismissing in limine the appellant 's writ petition against an order of the Indian Institute of Technology, Delhi terminating his services.
The writ petition by the appellant was brought on the following allegations.
The appellant, with a Master 's degree in Aeronautical Engineering, was commissioned in the Indian Air Force on March 1, 1958 and in due course was promoted to the rank of Squadron Leader.
During the years 1972 to 1975 he was an Assistant Director in the Rockets and Missiles Department of the Defence Research and Development Organization, New Delhi.
In January 1975, the appellant was tried by a General Court Martial on four charges and was convicted on two: (1) under section 45, for behaving in a manner unbecoming of the position and character expected of him as an officer in meeting secretly on several occasion a foreign national, contrary to the existing order on the subject and (2) under section 65, for improperly accepting a gift from a foreign national.
He was found not guilty on the remaining two charges.
On March 4, 1975, the General Court Martial directed that he be cashiered and suffer rigorous imprisonment for six months.
The findings and sentence of the General Court Martial were confirmed by the Chief of the Air Staff on April 8, 1975 and he directed that the sentence of rigorous imprisonment be carried out by confinement in civil prison.
Subsequently, by an order dated May 24, 1975, the Central Government remitted the unexpired portion of the punishment of rigorous imprisonment.
The appellant was anxious to join the Indian Institute of Technology, Delhi and obtained a certificate to enable him to do so.
The Air Headquarters, New Delhi issued the certificate reciting 42 that he was commissioned in the Indian Air Force and was posted to the Defence Research and Development Organization, Ministry of Defence.
It also stated that he was tried by General Court Martial in January, 1975 and in the result he was cashiered from service and also sentenced to rigorous imprisonment for six months.
The fact of remission of the imprisonment was also stated.
On July 15, 1977, the appellant was offered appointment to the post of Senior Research Assistant in the Department of Applied Mechanics of the Indian Institute of Technology for the programme of writing a monograph on 'Large Deformation in Metallic materials ' undertaken by Professor B. Karunesh of the said Department, and it was specifically mentioned that the appointment was purely temporary, subject to verification of the appellant 's character and antecedents from the Government, and could be terminated on 24 hours notice in writing by either side.
The appellant accepted the appointment and joined the Institute the next day.
The appellant alleges that unknown to him the Institute communicated with the Ministry of Defence in regard to his employment, and in reply the Ministry informed the Institute by letter dated November 19, 1977 of the appellant 's conviction and sentence by a General Court Martial and also of the fact of remission of the unexpired period of his imprisonment.
The letter also drew the attention of the Institute to an office memorandum dated May 14, 1965 of the Ministry of Home Affairs that persons who were dismissed from service were disqualified from future employment under the Government and added whether the same disability would apply in the case of the appellant should be decided by the Institute.
Professor Karunesh, under whom the appellant was working, was apparently apprised of the Ministry 's letter but he recommended that the appellant be retained in service.
On January 21, 1978, the Institute issued an order stating that the appellant 's services were no longer required and that they would stand terminated on the expiry of 24 hours.
According to the appellant, the Chairman of the Board of Governors of the Institute noted that as the appellant had been dismissed for spying he should not be retained in service.
The writ petition filed by the appellant was dismissed by the High Court of Delhi by an order dated November 8, 1978.
In this appeal the appellant, who appears in person contends that the Institute had no ground for terminating his services as the effect of the order of remission passed by the Central Government was to acquit him of the charges on which he had been found guilty, 43 that the Institute did not apply its mind to the facts of the case when deciding to terminate his services, that there was no material to support the comment of the Chairman, Board of Governors, and in any event the appellant was entitled to an opportunity to be heard before his services were terminated.
It was also contended that the Director of the Institute had abdicated his powers.
Reference was also made to section 73, in support of the submission that the statute did not bar employment elsewhere.
We are of opinion that we need not be detained by these contentions.
The fundamental relief claimed by the appellant is reinstatement to his post in the Institute.
For the reasons which follow that relief must be denied.
It appears from the record before us that the appellant was appointed in the Institute in connection with the programme of writing a monograph on 'Large Deformation in Metallic materials ' undertaken by Prof. B. Karunesh.
The appointment was temporary only and could be terminated on 24 hours ' notice.
It is averred in the counter affidavit filed by the Institute that the post of Research Assistant, to which the appellant was appointed, was created for one year only.
That was so, although according to the appellant the programme extended to two years.
It has also been affirmed in the counter affidavit that on the death of Professor Karunesh in June, 1978 the project in which he was engaged has been dropped and finally closed, and the period for which the appellant 's post of Senior Research Assistant was created has also expired.
There is no reason why these averments should not be accepted.
In the circumstances, we do not see how the appellant can be granted the relief of reinstatement.
We consider it unnecessary to interfere with the order terminating the appellant 's services in the Institute.
The appeal is dismissed, but we make no order as to costs.
S.R. Appeal dismissed.

summary:
The appellant, a commissioned officer in the Indian Air Force, on a General Court Martial was cashiered and sentenced to suffer rigorous imprisonment for six years.
Later the Central Government remitted the unexpired portion of the punishment of rigorous imprisonment.
Subsequently, he was appointed by the Indian Institute of Technology for a project work on a purely temporary basis and subject to verification of his character and antecedents from the Government and subject to the further condition that his services could be terminated on 24 hours notice in writing by either side.
On a reference by the I.I.T., the Ministry of Defence by its letter dated November 19, 1977 invited attention to the Ministry of Home Affairs Memorandum dated May 14, 1965 to the effect that persons who were dismissed from service were disqualified from future employment under the Government but left it open to the I.I.T. whether it would follow that principle in the case of the appellant.
The Professor under whom the appellant was working recommended the retention of the appellant in service.
The I.I.T. did not accept the said recommendation and by its order dated January 21,1978 terminated the appellant 's services on the expiry of 24 hours.
A writ petition filed by the appellant challenging the validity of the said order was dismissed in limine by the Delhi High Court and hence the appeal by special leave.
Dismissing the appeal, the Court, ^ HELD: The relief claimed by the appellant for reinstatement to his post in the Institute must be denied for the reasons, namely, (a) the appointment was temporary only and could be terminated on 24 hours notice; (b) the Professor incharge of the project passed away subsequently in June 1978 and, therefore, the project in which he was engaged was finally closed and (c) the period for which the appellant 's post of Senior Research Assistant had been, created had come to an end.
[43 D E]