Jagdish Prasad Agarwal vs Xth Additional District Judge and Others

S.U. Khan, J.—Heard learned Counsel for the parties.

Through this review application, review and reversal of my Judgment dated 18.5.2006 has been sought through which 1 dismissed the writ petition. Against the said Judgment SLP was filed before the Supreme Court being SLP (Civil) No. 11587 of 2006, which was dismissed by one line order, which is quoted below:

Heard.

The SLP is dismissed.

It appears that thereafter review application was filed before the Supreme Court which was got dismissed as not pressed. If SLP is dismissed without assigning any reason then review petition before the High Court is maintainable, vide Kunhayammed and Others Vs. State of Kerala and Another,

In my judgment, I placed reliance upon an earlier Judgment delivered by me in Harish Khurana Vs. Prem Kumar and Satish Kumar, It is reported that against the said Judgment of Harish Khurana SLP has been filed in the Supreme Court and notices has been issued.

The main point which I decided was to the effect that the landlord can seek release on the ground of bona fide need of the tenanted accommodation for a company of which he and his family members, i.e., wife and sons are the only share holders. The review has been sought on the ground that even though until decision by the appellate court the company for which release was sought was Private Limited Company of which landlord and his sons were the only share holders, however as stated in para 4 (b) of the review petition the Private Company came to an end on 9.12.1994 and from the said date it became new Public Limited Company and was registered as such with the Registrar of Companies. It has also been stated that apart from landlord and his sons some other persons are also share holders of the company. In the counter-affidavit dated 25.9.2006, it has been stated in para 6 that as the turn-over of the company crossed the prescribed limit hence by virtue of Section 43A(1A) of the Companies Act it automatically became a Public Limited Company. It has also been stated that directors consist of landlord and his family members, i.e. Son, daughter-in-law, father-in-law, brother-in-law etc. It has also been stated that Sri M. M Mehrotra, Sri P.S. Kapoor, Sri J. P. Kaura are Engineers and they have been included in Board of Directors as experts. In para 7, it has been stated that M/s. Escorts Finance Limited, Unit Trust of India and R. M. Finance Services have been made share holders as they are creditors and the moment their loan is repaid they would cease to be share holder of the Company. In para 8 it has also been stated that the landlord and his wife, grand-daughter, daughter-in-law hold more than 80% share of the new company.

The change in the status of the company took place during pendency of the writ petition. The question is as to whether this change can be taken Into consideration or could be taken into consideration if brought to the notice of the Court at the time of hearing of the writ petition. (It has been stated by the tenant that the fact that company had become Public Company and seizes to be Private Company was not within the knowledge of the tenant till the decision of the writ petition and it came to the knowledge of the tenant after the decision of the writ petition). In Diptee Singh v. A.D.J. 2006 (1) ARC 157, I considered the aspect of the subsequent events. In that regard I placed reliance upon three Supreme Court authorities. Para 8 of the said judgment is quoted below:

In Shakuntala Bai and Others Vs. Narayan Das and Others, decided on 5.5.2004, it was held that subsequent event of death of landlord is not to be taken into consideration. However In another authority decided on 13.10.2004 in K. N. Agarwal v. Dhanraji Devi 2004 (2) ARC 764 , a contrary view was taken and it was held by the Supreme Court that death of the landlord during pendency of the writ petition for whose need the shop in dispute was released by the Courts below made the release order passed by the Courts below ineffective and inexecutable as due to the death of the landlord the need vanished and in case his heirs were interested in doing business they could file a fresh release application. Unfortunately in the later authority of K. N. Agarwal the earlier authority of Shakuntala Bai was not considered. In Kamleshwar Prasad Vs. Pradumanju Agarwal (dead) by LR''s., also it was held that death of the landlord does not make any difference. The said case arose out of U. P. Rent Control Act and was considered In Shakuntala Bai''s case.

In view of the above if the company had altogether ceased to exist then the said change could be taken into consideration. However the change is only in respect of nature of the company hence it cannot be said that the total need has vanished. Landlord still retains major interest, share and control over the new company or the new form of company hence in my opinion it is not such a vital change which could be taken into consideration even If it had been brought to the notice of the Court at the time of hearing of the writ petition. It is not a case where the need is totally vanished, may be, it has been eclipsed to some extent.

Accordingly there is no merit in the review petition, hence it is dismissed.

Tenant is granted further time to vacate till 31.8.2007 on the same conditions which were imposed through my Judgment dated 18.5.2006. Whatever amount is deposited as condition of stay passed in this review petition by the tenant shall be deemed to be the payment till 30.4.2007. For the months of May, June, July and August tenant shall deposit Rs. 4000 within one month for immediate payment to the landlord. Deposit must be made within a month alongwith undertaking to vacate till 31.8.2007. If the conditions are not compiled with or after complying all the conditions accommodation in dispute is not vacated by 31.8.2007 then tenant shall be liable to pay damages for use and occupation @ Rs. 3,000 per month since May, 2007 or September, 2007 as the case may be.