Yogeshwar Dayal, J.
(1) This is an appeal under section 39 of the Delhi Rent Control Act, 1958 (hereinafter referred to as 'the Act') filed by the appellants against the order of the Rent Control (hereinafter referred to as 'the Tribunal', passed against the appellants, under clause (f) of the proviso to sub-sec, (1) of Section 14 of the Act.
(2) The order for eviction was passed by the Tribunal on 11-9-79 reversing the order of the 6th Addl. Rent Controller dated 20-5-1977.
(3) The second appeal came; up for consideration before Kirpal, J. and the learned Judge by order dated 20-8-1980 noticed the objection of the appellants that there is no finding recorded by the Tribunal 'that the premises have become unsafe and unfit for human habitation', and called for the report of the Tribunal. The operative part of the order of Kirpal, J. reads as under : 'The Rent Control Tribunal is accordingly 'directed to hear the parties afresh on the evidence on record and give a finding with regard to one of the ingredients contained in section 14(l)(f), namely, whether the premises in question have become unsafe or unfit for human habitation or not. The parties, of course, would be at liberty to move any application before the Tribunal for adducing any further evidence and any such application, if moved, will be decided by the Tribunal in accordance with law. The parties are directed to appear before the Tribunal on 3rd September, 1980. The Tribunal shall there upon fix date for the hearing of the case and would thereupon submit a report to this Court by 28th November, 1980. The objections, if any, to the report may be filed by any of the parties within two weeks thereafter.'
(4) Before the Tribunal, the appellants filed an application for additional evidence under the provisions of Order 41 rule 27 Civil Procedure Code and the Tribunal by order dated 29-10-1980 dismissed the application of the appellants for additional evidence. The Tribunal, then, by order dated 28-11-1980 submitted a report to this Court giving a finding, after re-examining the entire material on record, that the premises in question 'has become unsafe and unfit for human habitation' though it is not necessary that it must be in immediate danger of collapse. The Tribunal also gave a finding that 'the act of the tenant by setting up of another ceiling (meaning under the old roof) does not lead one to conclude that it is not- in unsafe and unfit condition because he has to see the position of the shop and the cause of action when petition was filed. The subsequent events by virtue of which events roof had caves in corroborates that fact'.
(5) Before the Tribunal, in relation to claim for eviction on the ground contained in clause (f) of the proviso to sub-section (1) of Section 14 of the Act, the landlord, Suraj Prakash, was the appellant.
(6) The circumstances which have given rise to this second appeal, in relation to the ground on which order of eviction has been based, namely, clause (f) of the proviso to sub-section (1) of Section 14 of the Act. may now be briefly noticed : In the petition for eviction, the appellants, namely, Lachman Dass was described as a tenant and Joginder Nath was described as unauthorised sub-tenant. However. in relation to the relavant ground for eviction, it was inter alias alleged that 'the premises in dispute being cracked and damaged in roof, walls due to mis-user, are bona ude required for extensive repairs, replacement of walls (three walls), roof and flooring etc. The premises are dangerous to life, unsafe, un-inhabitable and thereforee untenantable. The requisite repairs cannot be carried out unless the respondent vacates the premises. (For further grounds see annexure).'
(7) Further details were given in the annexure to the petition wherein the damage was estimated to be Rs. 10,000. It was also pleaded therein that 'the proposed reconstruction is permitted by bye-laws of the Municipal Corporation of Delhi without any formal sanction from it as it is covered by the phrase 'repairs' for the purposes of Delhi Municipal Corporation Act'.
(8) In the said annexure, the premises were described as 'old anachronism existing in the building of the petitioner (landlord) which stands reconstructed'.
(9) Admittedly, the remaining building of the landlord has already been re-constructed and only the shop in question remains to be 'repaired' out of the original structure.
(10) The appellants, in their written-statement submitted that similar ground of eviction was taken by the landlord earlier but was waived and given up is the compromise dated 7-1-1960. It was contended that the landlord has never carried out any repairs in the premises since 1956 and he had increased the rent. It was pleaded that Lachhman Dass had to carry out repairs at a huge cost because repairs were absolutely essential ?n order to keen the shoo in tenantable position.
(11) The tenant also alleged that the landlord, while constructing part of his adjoining house, placed the entire 'malba' on he roof of the shop in question and 'refused to remove the same in spite of repeated requestes as accumulation of dirt was likely to cause damage to the roof'. It was also alleged that the landlord had removed the rainwater-pipe from which water from the roof used to fall down. It was further alleged that repairs to the show can very well be carried out without the tenants' vacating the same. According to the tenant, the premises were quite fit for human habitation.
(12) The landlord filed a replication and denied that he had not carried out any repairs since 1956. According to him, the premises were renovated in the years 1959-60 and repaired subsequently. It was also pleaded that the landlord is using the terrace of the shop in question for residential purposes and storing his sundry goods thereon. The landlord has been keeping his remnant building material and construction implements over the said roof since he purchased this property. It was further pleaded by the landlord that the property had been repaired ffom time to time and no radical alteration was required. It was re-asserted that the property lias now to be vacated for re-construction and re-buildings.
(13) The learned Addl. Rent Controller, by order dated 20-5-1977, did not rely upon the evidence of the landlord. He 'placed reliance on the statement of the Assistant Engineer, Shri R.C. Mehrotra. of the Municipal Corporation who was produced as a witness by the tenant. The learned Addl. Rent Controller held that the property in dispute is not in a dangerous condition and does not require re-construction.
(14) Aggrieved by the order of the learned Addl. Rent Controller, the landlord filed an appeal which was disposed of by Shri P.K. Bahri, the Tribunal. The findings of the Addl. Rent Controller were set aside by Shri Bahri and he passed an order of eviction under the aforesaid clause and did not place reliance on the statement of the Assistant Engineer of the Municipal Corporation of Delhi, Rather, he accepted the evidence of the landlord's architect.
(15) The tenant exercised option of re-entry and on those terms, the order was passed by Shri P. K. Bahri.
(16) Against the order of Shri P. K. Bahri, the appellant tenants filed the present second appeal and, as stated earlier, Kirpal, J. called for a remand report.
(17) Against the order of Shri P. K. Bahri, dated 11-9-1979 and the remand report dated 28-11-1980 and the order of the Tribunal dated 29-10-1980 dismissing the application of the appellants under order 41 rule 27 C. P. C. for additional evidence, Mr. Ravinder Sethi, learned counsel for the appellant, formulated his submissions as under : (1) that Shri P. K. Balm, the Rent Control Tribunal has not given any finding the requirement of the landlord is bona fide for purposes of carrying out repairs ; (2) that the allegations of mala fide against the landlord, of his having caused damage to the roof intentionally, were made in the written-statement and the tenant had deposed about it before the learned Addl. Rent Controller on oath but these questions have not been decided by the Tribunal and thus order on the ground in question is vitiated ; (3) that it is not a case far 'repairs' within the meaning of bye-law 2 (67-A) of the Delhi Municipal Corporation (Buildings) Bye-Laws. 1959, and that the 'repairs' amount to re-construction and since permission for re-construction has not been admittedly taken so far it was really a case under clause (g) of the proviso to sub-see. (1) of Section 14 read with Section 14(8) of the Act and, thereforee, ejectment application on the aforesaid ground was liable to be dismissed; (4) that the position of the premises at the time of passing of order for ejectment has to be seen. The appeal being continuation of ejectment proceedings, subsequent developments, have to be taken into account, and the position at the time when ejectment application was filed and/or cause of action arose has not to be looked into for passing an order for ejectment under clause .(f) of the proviso to sub-section (1) of Section 14 of the Act ; (5) that the Tribunal of Shri V. S. Aggarwal while making remand report erred in law in not allowing additional evidence and in not considering subsequent events i.e. construction of a false ceiling below the original roof and the Tribunal of Shri Aggarwal was thus wrong when he assumed that he was not concerned with the position on a date other than the date of application for ejectment; (6) that the order of the Tribunal dated 19-7-1979 did not amount to allowing additional evidence ; (7) and that the order of the Tribunal is vitiated as it was arrived at without considering the material evidence.
(18) So far as the first submission is concerned, it is only to be stated to be rejected as there is a clear finding of the Tribunal that the requirement of the landlord for carrying out repairs was bona fide.
(19) Shri Bahri dealt with the aforesaid ground for eviction in paragraphs 32 to 35 of his judgment. The Tribunal noticed that even in the written-statement the tenants failed to controvert the averments of the landlord to the effect that the walls lire cracked and the roof is damaged. The , Tribunal also noticed that the evidence of the landlord is that the premises are lying in a dilapidated condition and are un-inhabitable without repairs being carried out. It also noticed that the landlord wants to replace the roof and also re-construct the walls.
(20) The Tribunal then noticed that the learned Addl. Rent Controller had placed reliance on the testimony of R. W. 15, and official of the Municipal Corporation of Delhi, who had deposed that the shop in question is lying in good condition but the witness also admitted that there were patches of new plaster on the walls and that he had not gone to the roof of the shop at all. The Tribunal of Mr. Bahri concluded that no decision could have been based on the testimony of this particular witness regarding the actual condition of the shop.
(21) Thereafter, Shri Bahri noticed that during the pendency of appeal before him, he had appointed a Local Commissioner on the request of the landlord to visit the shop and report. It was reported by the Local Commissioner that a large portion of the roof of the shop has caved in The Tribunal also noticed that this was even admitted by the tenant although the tenant had in a portion of the shop placed another roof 2 ft. below the previous roof. It was in these circumstances that the Tribunal observed that : 'Now admittedly there is a portion of the old roof which is at a higher level and which is not in a sound condition. The testimony of R. W. 15 has been belied by the circumstances which show that roof has caved in. It is significant to mention that even Joginder Nath could not deny in cross-examination that a false ceiling was put in the shop and it is because of existence of false ceiling that the expert examined by the tenant could not see the condition of the roof. The tenant has given an application that he has carried out re-construction of the part of the roof so it should be held that the premises are not now lying in uninhabitable condition so as to require the landlord to get the premises repaired after getting the premises vacated from the tenant. The tenant .had no right to construct a roof at a lower level as he has done. By making a different level of roof the tenant has made the terrace which was in possession of the landlord as unuseable by the landlord'. Sh. Bahri went on to observe further:
'NOWif the evidence-of the tenant has been correct that premises were not requiring any substantial repairs the roof of the shop would not have caved in during the pendency of this appeal.'
(22) These findings really impliedly record the bona fide requirement of the landlord to carry out repairs.
(23) The fact also remains that in the remand report, the Tribunal of Shri Aggarwal had not taken into account the report of the Local Commissioner as the same was not allegedly properly proved. But Mr. Aggarwal noticed the affidavit of the appellant dated 8th August, 1979 filed before Shri Bahri wherein it was pointed out by the appellant himself that the landlord had thrown bricks, 'malba' and old building material which weighed 30 maunds and under its weight, a part of the roof gave in. From these admissions. Mr. Aggarwal also found that the roof of the shop had caved in and part of it gave in. There in thus an implied finding by Mr. Aggarwal also about the bona fide requirement of the landlord to carry out repairs to the shop.
(24) There is thus no merit in the first submission.
(25) Regarding the second submission as to the mala fides of the landlord, he having caused damage to the roof intentionally, it is true that in this behalf the affidavit dated 8th August, 1979 was filed before the Tribunal by the tenants to suggest mala fides of the landlord, but when the matter was being tried by the learned Addl. Rent Controller. all that was deposed on behalf of the tenants was that certain waste was kept on the roof. The Tribunal noticed that it is another thing to say in appeal that 30 maunds of 'malba' was mala fide thrown on the roof. Before the learned Addl. Rent Controller what was deposed was that only 'koora karkat' had been thrown. Thus though the plea was there in the written-statement on behalf of the tenant in paragraph 18(iiii) thereof, which was denied in replication. yet there was no evidence to that effect before the learned Addl. Rent Controller. The averment was made for the first time in appeal to show how the roof had caved in but the plea in the trial court was not supported by any evidence other than the one noticed by me earlier. There is thus no material to give a finding that the application for ejectment was mala fide.
(26) There is also another way of looking at it. The landlord had filed an application before the Tribunal under Order 26 rule 9 and Order 39 rule 7 Civil Procedure Code for local inspection by a Local Commissioner as part of the roof had fallen down and the tenant was threatening to remove this evidence by repairs. This application was filed on 5-5-1979. Mr. Surya Kant Singia, Advocate, was appointed as Local Commissioner. The Local Commissioner inspected the premises and filed his report before the Tribunal. To this application, the tenant filed a reply dated 31-5-1979 and also objection to the report of the Local Commissioner. On 2-7-1979, the landlord filed an application under 0rder 4! rule 27 Civil Procedure Code for leave to produce the Local Commissioner as a witness and for leave to produce and prove architect's plan of the whole building and to prove two notices of the Municipal Corporation of Delhi which had been marked by the learned Addl. Rent Controller as 'X' and 'Y. On 10-7-1979, the landlord filed an application before the Tribunal complaining about the tenant|sub-tenant trying to alter the position at the spot. On 16-7-1979 on behalf of the tenant, a reply was filed admitting that the roof had fallen and claiming that they have made another roof 2. ft. below in a portion under the fallen roof and also admitted that the remaining roof is old roof and had developed craks and water would leak from it spoiling their goods and asking for permission to repair the remaining roof.
(27) On 19-7-1979, the Tribunal passed the following order . 'Present : Counsel for the parties. It is agreed that arguments in appeal be heard at an early date and parties may file affidavits which may be taken into consideration on points of additional evidence prayed for by the appellants. For arguments, on appeals on 30-7-79'.
(28) On 27-7-1979, the landlord filed an affidavit of himself referring to the report of the Local Commissioner dated 5-5-1979, an affidavit of architect as well as an affidavit of the landlord's son. On 8-8-1979, the tenant filed his own affidavit as his additional evidence and it is in this affidavit (in paragraph 2 thereof) that the tenant admitted that part of the roof had given in, that the tenant had done only 'show ing' of the roof and alleging that the water accumulated on the roof because of storage of 'malba' and if the 'malba' is removed, leakage would stop and also alleging that only minor repairs to the roof would be required. To this, the landlord filed a counter-affidavit on 10-8-1979. On 30-8-1979, the tenant filed an application for permission to re-construct the shop himself. On 5-9-1979 the landlord filed a reply contesting and objecting to the application for doing reconstruction himself. No order appears to have been passed to this application, presumably as it was not pressed and the judgment was given by the Tribunal on 11-9-1979 accepting the appeal of the landlord for ejectment on the aforesaid ground.
(29) A resume of the aforesaid facts thus shows that in fact subsequent events during the pendency of the appeal confirm the fact that the roof had even caved in and in this situation no finding could be given that the requirement of the landlord was mala fide.
(30) Learned counsel for the appellants also submitted, arguing further on the second submission, that the claim of the landlord is not bona fide on the following grounds: (1) that the earlier eviction petition (Ex. Rw 18/1) which was filed on 21-1-1959 did not include claim for ejectment on the ground of repairs; (2) that the previous ejectment application was compromised vide compromise-application, dated 7-1-1960; (3) that the tenant made an offer before the Tribunal that he would re-construct the shop at his own cost, but the landlord declined this offer, which shows his mala fides; (4) that the landlord's refusal to give undertaking to court to deliver back possession shows his mala fides; (5) that no notice was received from the Municipal Corporation of Delhi under section 348 of the Municipal Corporation Act or Sections 4 or 7 of the Slum Areas (Improvement and Clearance) Act, though the claim of the landlord was that the premises are in dangerous and unsafe condition; (6) that the conduct of the landlord shows his mala fides in-as-much as he filed an application before the Tribunal on 10-7-1979 for injuncting the tenant and directing him to maintain status quo though roof had fallen; and (7) that the two plans. Exhibits A.W. 3/2 and A.W. 615 are contradictory. Whereas in the plan Ex. A.W. 312 it is the Southern and the Western walls which are stated to require re-construction while in Ex. A.W.. 615 it is the central wall and walls on. the East and West which are shown to have cracked/damaged.
(31) It will be noticed that the first application was tiled on 21-1-1959 and was compromised on or about 7-1-1960. But the present application for ejectment was filed practically 10 years later i.e. on 15-3-1971. thereforee, merely because this ground was not taken under in the earlier eviction petition . does not show that the present petition is mala fide.
(32) The offer made before the Tribunal by the tenant cannot deprive the landlord of his right to take back possession of the premises for the purpose of effecting repairs.
(33) Again, refusal to give undertaking by the landlord to deliver back possession does not show mala fides as it is no, requirement of law. In fact if the 'election' of the tenant to take back possession of the premises again after repairs is recorded, it is for the court to fix time for the tenant to vacate the premises and for the landlord to complete repairs and to deliver back possession to the tenant. No undertaking is contemplated by law.
(34) The circumstances in which notices may be issued by the Municipal Corporation of Delhi either under the Municipal Corporation Act or under the Slum Areas (Improvement & Clearance) Act are totally different.
(35) In fact there is no merit in the submission that an adverse inference can be raised against the landlord for filing an application before the Tribunal directing the tenant to maintain status quo. The application was obviously filed with the idea that the landlord's right to claim may. not be defeated.
(36) No mala tides can, again, be inferred from the alleged contradiction in the plans. The plan Ex. A.W. 6/5 was prepared in the year 1971 and the plan Ex. A.W. 312 was prepared in 1,973. Order under section 14(1)(f) of the Act can be sustained if the premises require re-construction or repairs which cannot be carried out without the premises being vacated. Roof, in any case, has to be relaid which cannot be done without the premises being vacated. The law is clear that eviction can be ordered even or re-construction of the roof only. It is, thereforee, merely of academic importance to deal with the further argument of the appellants in connection with the walls.
(37) In this respect, the decision of Rattan Lal and another vs. Sohan Lal and another: 1979(1) R.C.R. 198(1) is an instance where premises were declared unsafe if roof required replacement. Again, the case of Managat Ram vs. Prem Chand: 1977(2) Rlr 320(2) may be referred with advantage as it relates to a case of replacement of roof and some walls. Dua, J. (as His Lordship then was) in Shakuntla Devi vs. Daulat Ram: 1967 Plr 251(3) observed that merely because there was no imminent-danger of the roof falling would not take the case out of clause (f). Again, in Sat Pal vs. Charan Dass : 1968 (70) P.L.R. 459(4), it was observed that safety and fitness does not depend on imminent danger being involved. The case of Puran- Chand and another v. Roshan Lal : 1975 (7) Rent Control Reporter 504(5), cited by Mr. Sethi in support of his arguments, is distinguishable on facts.
(38) In the case of Puran Chand (supra), there was no evidence of any dilapidated condition of the premises and the only evidence that was borne out from the record was of one or two cracks in a wall. Besides, it was not known how old these cracks were. No roof was involved and no expert evidence had been led. In the present case, however, roof is very much involved and the finding has been recorded after going through the entire evidence on record.
(39) There is thus no merit in the second submission of the learned counsel for the appellants.
(40) Coming to the third submission, the repairs which were required to be carried out at the premises in dispute were pleaded in the ejectment application which I have already noticed, but at the cost of repetition, relevant part of the ejectment application may be noticed again : 'premises in dispute being cracked and damaged in roof, walls.................... replacement of walls (three walls) roof and flooring'. 14 HCD/82 12
(41) The argument of Mr. Ravinder Sethi, learned counsel for the appellants, was that replacement of three walls does not fall within the meaning of expression 'repairs' contained in bye-law 2 (67-A) of the aforesaid Bye-Laws. This bye law 2 (67-A) and its sub-clauses (b) and (e), which are relevant for purposes of the present case, read as under : '2. In these bye-laws, unless the context otherwise requires : (67-A) 'repairs' mean and include : (a)...................... (b) re-roofing or renewal of roof including roof of intermediate floor at the same height or by raising the height of walls of room provided final height is not less than that provided under the building bye-laws; (c) ...................... (d) ...................... (e) making alteration to a building with re-erection to the extent of 50 per cent of any external wall abutting on a road or a street and subject to the maximum of two internal walls of a room being re-erected, or making alteration to a framed building without involving the removal or re-erection of more than onehalf of the parts in any such walls thereof as aforesaid,'.
(42) RE-ROOFING is clearly covered under clause (b). The dispute really centres round the question whether the three walls in dispute are covered by sub-clause (e) (supra) or not.
(43) It will be noticed that one of the three walls is an internal walls. Half of it on the side of the landlord's remaining building has already been constructed by the landlord. The other half on the side of the premises in dispute can be constructed only after demolishing the existing internal wall adjoining the newly built half wall. .An analysis of sub-clause (e) of bye-law 2 (67-A) of the aforesaid Bye Laws shows (i) that the expression 'repairs' includes reerection to the extent of 50 per cent of any external wall abutting on a road or a street and (ii) maximum of two internal walls of a room being re-erected or making alteration to a framed building without involving the removal or re-erection of more than one-half of the parts in any such walls. Thus, there is no problem, about re-construction of one internal wall since it is, in any case, covered.
(44) Regarding re-erection of two external walls, the bye-law permits re-ertction to the extent of 50 per cent of 'any external wall abutting on a road or a street'. The external 'walls' of the premises in dispute are part of the entire length of the wall of the building of which the premises is a part. One has to find whether the external walls which are sought to be re-constructed are more than 50 per cent of the entire length of the external walls of the building or not. The entire external wall of the premises in question is much less than 50 per cent of the total length of the wall. The expression 'external walls' itself is defined in bye-law 2(30) of the said Bye-laws to mean : .
'......ANouter wall of a building not being a party wall, even though adjoining to a wall of another building and also means a well abutting on an interior open space of any building'.
(45) There is no logic behind the submission of the learned counsel for the appellants that the two portions of external walls must be in a straight line. The two external walls in question are abutting on 'chowk' and gully. Southern wall faces 'chowk' and Western wall faces 'gully'. They are both external walls. There is thus no merit in the submission of the learned counsel for the appellants that re-construction of the three walls in dispute two external walls and one internal wall do not come within the ambit of ''repairs' as contemplated by bye-law 2(67-A) of .the aforesaid Bye- Laws and thus it is not a case of re-construction for which any advance permission or sanction of the Municipal Corporation is required and the case in dispute, thereforee, does not fall under clause (g) of proviso to sub-section (1) of Section 14 read with Section 14(8) of the Act, but squarely falls within clause (f) of the proviso to sub-section (1) of Section 14 .of the Act.
(46) The fourth submission is really based on the patch work done by the tenant on the walls and constructing a false ceiling, 2 ft. below the roof, in a portion of the premises. The question is : can the subsequent unilateral act of the tenant demolish or take away the cause of action which has once accrued to the landlord under clause (f) In cases coming under clause (e) to the proviso, which relates to the bona fide requirement of the landlord of premises for his own use, it has repeatedly been held by this Court as well as by the Supreme Court that subsequent events can be taken into account, but it will be noticed that in those cases, subsequent events are the actions of the landlord and not of the tenant, namely, whether requirement of the landlord continues till the final order for eiectment. The subsequent events which defeat such a right really depend on the action of the landlord himself or need -of the landlord disapparing or his finding a suitable alternative accommodation during the pendency of the eiectment petition. In those cases, the courts have taken into account the subsequent events or sub sequent developments.
(47) We are here concerned with a case of subsequent unilateral act of the tenant. Can that demolish of take away the cause of action which has once accrued to the landlord? This question has arisen in several cases under the Halyana Urban (Control of Rent and Eviction) Act (Act Ii of 1973) where similar provisions like Section 13(3)(c) read with Section 13(6) and also under the East Punjab Urban Rent Restriction Act, 1949 where also similar provisions contained in Section 13(2)(a)(iii) of the East Punjab Act read with Section 13(4) of the said Punjab Act came up for consideration.
(48) There is a catina of authorities under the aforesaid two Acts. Reference may be made to a decision of Gupta, J. in Tara Chand v. M/s. Jeetu Mal InderSain : 1980 (2) R C R 554, Ram Gopal v. Lekhu Ram : 1981 (17) R.C.R. 211, Dr. Piara Lala Kapur v. Shmt. Kaushalya Devi and another : 1970 (72) Pun Law Rep 411, Jagdish Chand, etc. v. Mst. Bachni Devi : 1980 (2) Rent Con Jou 619, Rakha vs. Shadi Singh : 1981 (1) Rent Law Reporter 138 (10) at pages 140-141, and Smt. Bhagwanti and others v. Yashodha Devi : 1980 (1) R.C.R. 574 (ll)
(49) In what cases, subsequent events, which come into being after the institution of the case, can be taken into account for affecting substantive right of suitor .came up for consideration of the Supreme Court in Rameshwar and others v. Jot Ram and others : : [1976]1SCR847 . Krishna lyer, J. in paragraphs 8 and 9 of the report observed as under :' '8. In P. Venkateswarlu v. Motor & General Traders. : [1975]3SCR958 this Court dealt with the adjectival activism relating to post institution circumstances. Two propositions were laid down. Firstly, it was held that 'it is basic to out processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding.' This is an emphatic statement that the right of a party is determined by the facts as they exist on the. date the action is instituted. Granting the presence of such facts, then he is entitled to its enforcement. Later developments cannot defeat his right because, as explained earlier, had the Court found his facts to be true the day he used he would have got his decree. The Court's procedural delays cannot deprive him of legal justice or rights crystallised in the initial cause of action. This position finds support in Bhajan Lal v. State of Punjab : [1971]2SCR497 .
(50) The impact of subsequent happenings may now be spelt out. First, its bearing on the right of action. Second, on the nature of the relief and third, on its importance to create or destroy substantive rights. Where the nature of the relief, as originally sought, has become obsolete or unserviceable or a new form of relief will be more efficacious on account of developments subsequent to the suit or even during the appellate stage, it is but fair that the relief is moulded, varied or reshaped in the light of updated facts. Patterson v. State of Alabama (1934) 294 U.S. 600. 607 (15), illustrates this position. If is important that the party claiming the .relief or change of relief must have the same right from which either the first or the modified remedy may flow. Subsequet events in the course of the case cannot be constitutive of substantive rights enforceable in that very litigation except in a narrow category (later spelt out) but may influence the equitable jurisdiction to mould reliefs. Conversely, where rights have already vested in a party, they cannot be nullified or negated by subsequent events save where there is a change in the law and it is made applicable at any stage. Lachmeshwar Prasad v. Keshwar Lal falls in this category. Courts of justice may, when the compelling equities of a case oblige them, shape reliefs cannot deny rights to make them justly relevant in the updated circumstances. Where the relief is discretionary, courts may exercise this jurisdiction to avoid injustice. Likewise, where the right to the remedy depends, under the statute itself, on the presence or absence of certain basic facts at the time the relief is to be ultimately granted, the Court, even in appeal, can take note of such supervening facts,, with fundamental impact. Venkateswarlu, : [1975]3SCR958 read in its statutory setting, falls in this category. Where a cause of action is deficient but later events have made up the deficiency, the Court may in order to avoid multiplicity of litigation, permit amendment and continue the proceeding, provided no prejudice .is caused to the other side. All these are done only in exceptional situations and just cannot be done if the statute, on which the legal proceeding is based, inhibits, by its scheme or otherwise, such change in cause of action or relief. The primary concern of the Court is to implement the justice of the legislation. Rights vested by virtue of a statute cannot be divested by this equitable doctrine (see Chokalingam Chetty : . The Law stated in Ramji Lal v. State of Punjab. is sound :
'COURTSdo very often take notice of events that happen subsequent to the filing of suits and at times even those that have occurred during the appellate stage and permit pleadings to be amended for including a prayer for relief on the basis of such events but this is ordinarily done to avoid multiplicity of proceedings or when the original relief claimed has, by reason of change in the circumstances, become inappropriate and not when the plaintiffs suit would be wholly displaced by the proposed amendment (see Steward v. The North Metropolitan Tramways Company, (1885) 16 Qbd 178) (19) and a fresh suit by him would be so barred by limitation.'
One may as well add that while taking cautious judicial cognisance of 'post-natal' events, even for the limited and exceptional purposes explained earlier, no Court will countenance a party altering, by his own manipulation, a change in situation and plead for relief on the altered basis.'
(51) An analysis of the ratio of aforesaid judgment of the Supreme Court, as submitted by Mr. R. S. Narula, learned counsel for the landlord, in common parlance may be spelt out as under : 1. (A) The general rule has two facets : viz. (i) Subsequent events which come into being after the institution of the case cannot affect the substantive rights of the suitor except in the single narrow category spelt out in subparagraph (B) of this paragraph below. (ii) Conversely where rights have already vested in a litigant, they cannot be nullified or negated by subsequent events. (B) The narrow category referred to above containing the single and only exception to the above rule : The above rule applies to all cases save where there is a change in the law and it is made applicable at any stage. An illustration of cases falling in this category is 'Lachmeshwar Prasad's case 1940 Fcr 84.' II. In the matter of procedural rights (in contradistinction to substantive rights) like moulding of relief, subsequent events can be taken into account : ' (A) (i) When compelling equities of a case obliges the. Court of justice to do so; and (ii) Where grant of relief is discretionary, resort can be had to this course only in order to avoid injustice to both sides. fB) Where the right to the remedy depends under the Statute itself on the presence or absence of certain basic facts at the time when the relief is finally granted. (An illustration of this category is furnished by the case reported in 1975 S.C. 1409). (C) Where the cause of action is deficient at the time of institution of an action but the deficiency is made up by later events. The object of having recourse to such procedure is to avoid multiplicity of proceedings as the rejection of the plaint would only result in the exercise of the absolute right of the plaintiff to file a second suit on account of the deficiency in the cause of action having been made up. III. All the exceptions to the golden rule including the solitary one in respect of substantive rights and the three exceptions hi the matter of procedure are subject to the over-riding law, to which there is no exception to the effect that rights vested by a statute cannot be divested by any action of the opposite party.
(52) We are, in this case concerned with the substantive rights of suitor and the present case falls in category 1(A)- (i) and (ii) and is not covered by the exception in subparagraph (B) of proposition Ii noticed above.
(53) The Tribunal was right in not taking into consideration the subsequent events which took place as a result of the unilateral act of the tenant and the position has to be seen at the time when ejectment application was filed and/or cause of action arose for passing order for ejectment under clause (f) of the proviso to sub-section (1) of Section 14 of the Act and this also is the answer to the fifth submission of the learned counsel for the appellants, as noticed by me earlier.
(54) Coming to the sixth submission of learned counsel for the appellants. I have already re-produced the order of the Rent Control Tribunal dated 19-7-1979 which permitted the landlord (appellant before the Tribunal) to lead additional evidence and it was in pursuance of this order of the Tribunal that the landlord filed affidavits of himself, his son and the Architect Baldev Singh. In his own affidavit, he referred to the report of the Local Commissioner dated 5-5-1979 and the tenant filed his affidavit dated 8-8-1979 to which the landlord filed counter-affidavit dated 10-8-1979. There is thus no merit in the submission of the learned counsel that the order of the Tribunal dated 19-7-1979 did not amount to allowing additional evidence.
(55) Coming to the seventh submission of learned counsel for the appellants, I was taken through the entire re- cord and statements of various witnesses for and against him and I do not consider that any material evidence was ignored by Mr. Bahri's Tribunal or Mr.Aggarwal Tribu- nal while submitting remand-report. In any case, no such material can be said to have been ignored which may call for interference in the second appeal.
(56) The learned counsel particularly referred to the statement of Shri S. B. Goe) (R.W. 16) as having not been considered by the Tribunal but the fact remains that this statement was considered by Mr. Aggarwal in his remand- report and he discarded it on good grounds.
(57) This miscellaneous application was filed by the appellants during appeal for additional evidence. No orders are required on this application in view of the order of remand passed by Kirpal, J. and in fact an application for additional evidence was filed by the tenant-appellants before the Tribunal after remand and was rightly rejected by the Tribunal.
(58) The question which now remains is whether this Court can again specify the date on or before which the tenant would deliver possession to the landlord so as to enable the landlord to commence the work of 'repairs' as contemplated by Section 20 of the Act.
(59) Mr. Narula, learned counsel for the 'respondent- landlord, submitted that Mr. Bahri's Tribunal, while accepting his appeal on the aforesaid ground, had granted two months' time to the tenant for vacating the premises and delivering possession thereof to the respondent-landlord and had also directed the -landlord then to carry out repairs in accordance with law where after the tenant will be entitled to have back possession of the premises. The argument proceeded further that the tenant, not having delivered possession within two months as directed by the Tribunal, has lost that right and this Court cannot again grant time to the tenant.
(60) It will be noticed that this appeal was filed by the tenants on or about 25th October, 1979 i.e. before the expiry of two months granted by the Tribunal turn vacating the premises and delivering possession to the landlord and this Court, while admitting the appeal on 7th November, 1979, stayed eviction of the appellants till disposal of the appeal. Mr. Narula submitted that the tenant-appellants, in spite of stay granted against their eviction by this Court, cannot ask for time. For this proposition, Mr. Narula relied upon the decision of A. P. Sen, J. (as His Lordship then was) in Ghanshyam Hazarimal and another v. Nathmal Laxmmarayan : 1976 Rcj 678(20). His Lordship, while dealing with the provisions of section 12(l)(g) and (h) and Section 18(1) of the Madhya Pradesh Accommodation Control Act (41 of 1961) in the said case, observed :
'IT is plain from the provisions of sub-sections (2) and (3) of section I S that the right of re-entry is given to the tenant as a concession on the fulfillment of the conditions precedent, namely, that the tenant must deliver possession of the accommodation to the landlord on or before the dates specified in the decree. The provision of section 18(3) has to be construed strictly and the tenant pleading that privilege, must fulfill it exactly'.
(61) It was further held in. this case that the word 'court' appearing in Section 18(1) of Madhya Pradesh Accommodation Control Act means not only the 'Court' trying the suit, but also the Appellate Court. It may well be that the landlord's suit may fail in the court of the first instance but succeed in appeal. The learned Judge in the cited case, in this context, observed that all that the section provides is that the 'court' while making an order under section 12(l)(g) and (h) of the said Act shall ascertain whether the tenant elects to be placed in possession. When the suit is decreed by the trial court, 'that Court has the duty to ascertain the fact and if the tenant so elects, to specify a date by which he should deliver possession. But if the suit is decreed on appeal, the appellate Court has to perform that duty. The Act, however, nowhere provides that when the tenant does not abide by his election and files, instead, an appeal against the decree, the Appellate Court shall specify another date. The tenant has to make a choice. If the tenant does not stand by his election, he forfeits the right of re-entry',
(62) With all due respect to the learned Judge, I have found myself unable to agree with this decision. The provisions of Section 14(l)(f) and Section 20 of the Act, in the case before me, are in pari materia with the provisions of Section 12(l)(g) and (h) and Section 18(1) of the Madhya Pradesh Accommodation Control Act. The provisions of Section 14(l)(f) and Section 20 of the Act, on the one hand, confer a right on the landlord to obtain possession of the premises for a particular purpose and, on the other, confer a very valuable right on the tenant and casts a duty on the court to record the fact of election of the tenant, if he so desires. Once election of the tenant is recorded, there is a duty of the court thereafter to fix time-table for- the tenant to deliver possession to enable the landlord to commence repairs. The order which is passed under section 20(1) ism two parts. Recording 'election' of the tenant to be placed in occupation of the premises from which he is to be evicted, is one part of the order. This election has to be made by the tenant either when the court of first instance passes order of eviction, or when the court of appeal, for the first time, passes such an order of eviction. This right of election has to be exercised at that time. If the right of election is not exercised when the order of eviction is passed it cannot be exercised later on, unless appeal is filed against refusal to give opportunity to the tenant to exercise 'election'.
(63) But if the right of election is exercised in the court of first instance from which appeal is filed by the tenant against the order of eviction, it does not mean that by exercising right of appeal, the 'election' which the trial court has recorded, goes overboard.
(64) The second part of the order, namely, fixing the time-table for the tenant to deliver possession to the landlord to enable him to commence work of 'repairs' and thereafter to deliver back possession to the tenant, is the function of the court. When the tenant files an appeal against an order for eviction under clause (f) or clause (g) of the 'proviso to sub-section (1) of Section 14 of the Act, the appeal is directed against either the order for eviction and/or the extent of time granted by the court while making order for eviction. When the appeal is against such an order and the Appellate Court says eviction of the tenant, it does not mean that if the appeal fails, the Appellate Court is powerless to further fix time for delivery of possession to the landlord. The Appellate Court is vested with all the powers of the trial court and where the trial court could fix time or delivery of possession, the Appellate Court can as well do the same.
(65) It is cardinal principle of Justice that no person can be injured by an act on the part of the court. The order staying eviction of the tenant during the pendency of the appeal is an act of court; may be on the application of the tenant, but it still remains an act of the court. By stay of dispossession, the appellant cannot be deprived of being granted time to vacate the premises for purposes of section 20 of the Act. The right of election, which has been exercised already, cannot be defeated simply because the appeal cannot be disposed of during the time granted by the lower court turn delivery of possession or where eviction is stayed during the pendency of the appeal.
(66) Another important factor is that the right of 'election' should have been exercised before the court passing order of eviction under clause (f) of the proviso to subsection (1) of section 14 of the Act, which was done in the present case. In fact, if the construction put by Sen, J. in the aforesaid case is adopted, it will make the right of appeal meaningless.
(67) In the result, the appeal fails but the tenant-appellants are granted three months' time to deliver possession ofthe premises to the landlord. The landlord shall then commence work of 'repairs' in accordance with law and after repairs the tenants shall be entitled to take, back possession of the premises as per law.
(68) I may also mention that the respondent-landlord in this appeal also filed cross-objection against the order of the Tribunal, declining to order eviction of the tenants on two other grounds which had been taken by the landlord in the ejectment application.
(69) During the hearing of the appeal, Mr. R. S Narula, learned counsel for the landlord, however, submitted that in case the appeal of the tenant fails I need not decide the cross-objections filed by the landlord and in fact no arguments were addressed by the learned counsel for the landlord on that aspect.
(70) As the appeal has been dismissed as above, the cross-objections, in view of the submission of the learned counsel for the landlord, need not be decided.
(71) Parties are left to bear their own costs.