ORDER
C.K. Abdul Rehim, J.
1. The tenant is in revision against the concurrent findings of the rent control court and the appellate authority ordering eviction on the ground of bonafide need urged by the landlord under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The rent control petition was filed invoking grounds under Section 11(3) and 11(4)(iii) of the Act. The courts below concurrently found that the landlord was not successful in establishing the ground under Section 11(4)(iii). But the Rent Control court found that the bonafide need projected by the landlord for starting his own business in footwears is well established. The appellate authority confirmed the findings.
2. Heard Sri R. Surendran, the learned Counsel for the revision petitioner at length. The main contention is against the findings of the courts below with respect to the first proviso to Section 11(3). We have the opportunity to peruse copy of the rent control petition, the objections filed by the tenant, and the depositions of PW1 and R.W1. The specific pleading of the landlord was that, he is not having any other vacant building in his direct possession. On the contrary, the objection of the tenant was that, there are many vacant rooms in the possession of the landlord in the same locality. Apart from the general nature of pleadings and counter pleadings, the tenant had not pointed out any particular building allegedly in the possession of the landlord.
3. The learned Counsel for the revision petitioner had drawn our attention to the deposition of PW1. In cross examination, landlord deposed as follows:
4. Banking upon the above quoted statement, the learned Counsel for the revision petitioner strongly contended that the same amounts to an admission on the part of the landlord that he had a building in his possession at the time of filing of the rent control petition. According to the counsel, the rent control petition was filed in the year 2001 and the evidence of PW1 was let in only on 17/03/2004, and hence it amounts to a suppression on the part of the landlord. The counsel argues that it was the bounden duty of the landlord to disclose about possession of another building and he ought to have proved that the building which was sold was not suitable for establishing the business which he was proposing to start. He further contends that at any rate the above quoted admission need be taken note of as a subsequent development having fundamental impact upon the bonafides of the need projected by the landlord.
5. On an active consideration of the above contentions, we are of the opinion that the admission of the landlord upon which the tenant is now relying, is not at all a conclusive proof to the effect that the landlord was having vacant possession of any other building at the time of filing of the rent control petition. It is not clear from the deposition, as to whether the 'two years' mentioned therein is 'two years' before the filing of the rent control petition or 'two years' before the date of examination. Further the 'two years' spoken to by the landlord cannot be taken with arithmetical accuracy to arrive at an exact conclusion that, on the date of filing of the rent control petition the respondent/landlord was having another building in his possession.
6. As per the first proviso to Section 11(3), the rent control court is not justified in issuing an order of eviction, if it is proved that the landlord has another building of his own in his possession in the same city, town or village. It is the duty on the part of the tenant who claims the benefit of the first proviso to establish that, the landlord was having ownership and possession of another building in the same city, town or village. Only if the tenant prima facie establishes the above facts through convincing evidence, the burden will shift to the landlord to disprove the same or to satisfy the rent control court that for any special reasons such building cannot be utilised by him for the need projected. It is pertinent to note that tenant had no pleadings to the effect that the landlord was in ownership or possession of any particular building at the time of filing of the rent control petition. On the other hand, the landlord in his pleadings asserted that he was not having any other building in his possession suitable for establishing the business intended. Even assuming that the landlord had admitted that he had sold a building at 'Saidarpally Main Road', after institution of the rent control petition, there is no evidence brought out to prove that the building which was sold, was in his vacant possession, or that the same was suitable for establishing the business intended.
7. The next question arising for consideration is, as to whether the alleged admission of the landlord brought out in evidence, can be taken note of by the revisional court as a subsequent event to deny the relief of the bonafide requirement. As discussed above, we are not impressed upon the argument of the learned Counsel that there is any conclusive proof to the effect that the landlord was having in his possession any other building at the time of filing of the rent control petition, so as to deny the relief sought for or to negative the bonafide need projected by him. However, we are inclined to examine the question as to whether the alleged admission on the part of the landlord can be taken note of by this Court in revision, as a subsequent event, so as to upset the findings arrived by the courts below.
The Honourable Supreme Court in Om Prakash Gupta v. Ranbir B. Goyal : [2002]1SCR359 observed as follows:
The ordinary rule of civil law is that the rights of the parties stand crystalised on the date of the institution of the suit and, therefore, the decree in a suit should accord with the rights of the parties as they stood at the commencement of the lis.
However, the Court has power to take note of subsequent events and mould the relief, as claimed originally has, by reason of subsequent event s and mould the relief accordingly subject to the following conditions being satisfied:
(i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted;
(ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties, and
(iii) that such subsequent event is brought to the notice of the court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise. In Pasupuleti Venkateswarlu v. Motor and General traders this Court held that a fact arising after the lis, coming to the notice of the court and having a fundamental impact on the right to relief or the manner of moulding it and brought diligently to the notice of the court cannot be blinked at. The court may in such cases bend the rules of procedure if no specific provision of law or rule of fair play is violated for it would promote substantial justice provided that there is absence of other disentitling factors or just circumstances. The Court speaking through Krishna Iyer J. affirmed the proposition that the court can, so long as the litigation pends, take note of updated facts to promote substantial justice. However, the court cautioned: (i) the event should be one as would stultify or render inept the decretal remedy (ii) rules of procedure may be bent if no specific provision or fair play is violated and there is no other special circumstance repelling resort to that course in law or justice (iii) such cognizance of subsequent events and developments should be cautious and (iv) the rules of fairness to both sides should be scrupulously obeyed.
Such subsequent event may be one purely of (aw or founded on facts. In the former case, the court may take judicial notice of the event and before acting thereon put the parties on notice of how the change in law is going to affect the rights and obligations of the parties and modify or mould the course of litigation or the relief so as to bring in conformity with the law. In the latter case, the party relying on the subsequent event, which consists of facts not beyond pale of controversy either as to their existence or in their impact, is expected to have resort to amendment of pleadings under Order 6 Rule 17 CPC. Such subsequent event, the court may permit being introduced into the pleadings by way of amendment as it would be necessary to do so for the purpose of determining real questions in controversy between the parties. In Trojan and Co. v. RM. N.N. Nagappa Chettiar this Court has held that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found; without the amendment of the pleadings the court would not be entitled to modify or alter the relief. In Sri Man ant Govind Rao v. Sita Ram Kesho their Lordships observed that, as a rule, relief not founded on the pleadings should not be granted.
Power of the court to take note of subsequent events, specially at the appellate stage, came up for the consideration of a Full Bench of the Nagpur High Court presided over by Justice Sinha (as His Lordship then was) in Chhote Khan v. Mohd. Obedulla Khan Hidayatullah, J. (as His Lordship then was) held, on a review of judicial opinion, that an action must be tried in all its stages on the cause of action as it existed at the commencement of the action. No doubt, courts 'can' and sometimes 'must' take notice of subsequent events, but that is done merely 'inter partes' to shorten litigation but not to give to a defendant an advantage because a third party has acquired the right and title of the plaintiff. The doctrine itself is of an exceptional character only to be used in very special circumstances. It is all the more strictly applied in those cases where there is a judgment under appeal. His Lordship quoted the statement of law made by Sir Ashutosh Mookerjee, J. in a series of cases that merely because the plaintiff loses his title pendente lite is no reason for allowing his adversary to win if the corresponding right has not vested in tneadversary but in a third party. In the case at hand, the defendant/appellant has simply stated the factum of proceedings initiated by HUDA against the plaintiff respondent in an affidavit very casually filed by him. He has not even made a prayer to the court to take notice of such subsequent event and mould the relief accordingly, or to deny the relief to the plaintiff-respondent as allowed to him by the judgment, under appeal, much less sought for an amendment of the pleadings. The subsequent event urged by the defendant-appellant is basically a factual event and cannot be taken cognizance of unless brought to the notice of the court in accordance with the established rules of procedure which if done would have afforded the plaintiff-respondent an opportunity of meeting the case now sought to be set up by the appellant. We do not think this Court would be justified in taking notice of a fact sought to be projected by the appellant in a very cavalier manner. The fact remains that the present one is a landlord-tenant dispute and we cannot upset the relief granted by the courts below and the High Court to the plaintiff-respondent by relying on the doctrine of eviction by title paramount as it cannot be said that the proceedings initiated by HUDA against the plaintiff-respondent have achieved a finality or are such proceedings wherein the plaintiff-respondent cannot possibly have any sustainable defence.
The view discussed above in various decisions has been subsequently reiterated by the Hobnourable Supreme Court in Ramkumar v. Ram Lakhan 2007 (3) KLT 945 (SC).
8. On an active consideration of the principles laid down by the Honourable Supreme Court in various cases cited above, two prominent questions emerge for consideration. Firstly, whether the alleged subsequent event or changed circumstances has got any material bearing on the entitlement of the parties to the relief or any material bearing on the aspects upon which the relief is to be moulded. In other words, whether the fact arising after the Its has got any fundamental impact on the right to relief to be granted to the parties. As discussed above, we are of the opinion that on the factual matrix, of the instant case, the solitary and stray statement of the landlord quoted above, cannot be taken as a conclusive proof to hold that the landlord had in his ownership and possession another building at the time of the Us, which is suitable for establishing the need projected. Inspite of the fact the revision petitioner is now heavily banking upon the above said statement to discard genuineness of the need projected, there was no attempt made to bring any further evidence to corroborate the version. Therefore, we have no hesitation to hold that the alleged subsequent event is not one having fundamental impact on the bonafides of the need projected.
9. The second question to be considered is as to whether the tenant had discharged his duty in bringing the subsequent event to the notice of the trial court or to the appellate court, promptly in accordance with the normal rule of procedural law, so that the opposite party is not taken by surprise. On the facts of the case it is evident that, the alleged admission was made during cross examination of the landlord as PW1. The question to be considered is, whether the Revision Petitioner/tenant took any steps before the trial court to bring the above fact as an issue in controversy to be adjudicated upon and decided by that court. Whether he had attempted any amendment to the pleadings on the basis of the alleged admission. Whether he had produced any corroborative evidence to support the factual situation like, production of certified copy of the document pertaining to the sale etc. Whether he had attempted to let in any evidence to prove that the alleged building was in vacant possession of the landlord and it was suitable for establishing business intended by the landlord. All these questions could only be answered on the negative. Therefore, it is clear that there was failure on the part of the revision petitioner/tenant to take proper steps at the appropriate point of time, so as to make it enable the trial court to follow the rules of fairness to both sides, scrupulously. The subsequent event, which consist of facts, need to have been proved beyond the pale of controversy by introducing the same to the pleadings by way of amendment for trie purpose of determining the question in controversy between trie parties. There should have been a prayer to the court to take notice of the subsequent event and should have moulded the pleadings to deny relief to the landlord, as allowed to him through the impugned judgments. The subsequent factual event should have been brought to the notice of the trial court in accordance with the established rules of procedure, which if done would have afforded the opposite party an opportunity to meet the case which is now sought to be set up by the revision petitioner. Therefore, we do not think that this Court would be justified in taking cognizance of the fact sought to be projected. In view of the settled precedents of the Honourable apex court cited above, we have no hesitation to hold that the revisional court will not be justified in taking cognizance of any alleged subsequent event, in moulding relief to the parties, even if the same is having fundamental impact on the rights of parties, if there is a failure on the part of the party projecting the same to bring to the notice of the courts below through established normal rules of procedural law.
10. Under the above circumstances we do not find any merit in the contention of the revision petitioner with respect to the first provisos to Section 11(3). We are unable to find any illegality, irregularity or impropriety in the findings of the courts below under Section 11(3).
11. Sri R. Surendran, learned Counsel appearing for the revision petitioner, lastly sought for indulgence of this Court to allow one year period for vacating the tenanted premises and for handing over possession thereof. Having considered the facts and circumstances of the case we are not inclined to grant one year period. However, we are inclined to grant a period of six months to the revision petitioner for handing over peaceful and vacant possession of the tenanted premises. In the result, the revision petition is disposed of with the following directions:
12. If the revision petitioner files an affidavit before the execution court undertaking to handover peaceful and vacant possession of the petition schedule building to the landlord on or before 21.8.2009 and if he makes payment of arrears of rent if any due and further continues to pay the monthly rent to the landlord, the execution court will defer eviction of the revision petitioner/tenant from the petition schedule building till 21-8-2009.