civil appellate jurisdiction civil appeal number 273 of 1959.
appeal from the judgment and decree dated january 17th 1957
of the allahabad high companyrt it  lucknumber bench  at lucknumber in
first civil appeal number 16 of 1950.
sarjoo prasad e. udayarathnam and s. s. shukla for the
appellant. b. agarwala and d. n. mukherjee for respondent number 1. 1962. february 16. the judgment of the companyrt was delivered
by
wanchoo j.-this appeal on a certificate granted by the
allahabad high companyrt arises out of a suit filed by mrs. bose
 plaintiff-respondent  by which she claimed a declaration
that she was the owner of house number io  ghasiari mandi
road lucknumber or in the alternative a declaration that she
was the owner of two-thirds of the house. the previous
history of litigation with respect to this house is relevant
and may be set down. the house originally belonged to dr.
miss - mitter who died in july 1925. at the time of her
death she left three sisters namely the appellant mrs.
judah the plaintiff-respondent mrs. bose and the defendant-
respondent mr. momin and her mother mrs. mitter. the
plaintiffs case was that dr. miss mitter had made a will in
favour of mrs. momin in april 1921 by which she gave. the
whole house to her. mrs. momia in turn made a gift of the
house
to the plaintiff who thus became the owner of the house. the defence of the appellant on the other handwas that dr.
miss mitter had executed a will in june 1925 bequeathing the
house to her mother mrs. mitter. subsequently the mother
made a will in favour of the appellant in april 1930. it
appears that numberprobates of the two alleged wills by dr.
miss mitter of april 1921 and june 1925 were taken out. it
appear further that mrs. mitter was living in this house
when she died in 1934. on her death three wills alleged to
have been made by her -were propounded one in favour of each
of her three daughters namely mrs. bose mrs. judah and
mrs. momin applications for letters of administration were
made by the three sisters each claiming that the will in her
favour was the last will of mrs. mitter and among the
property left by mrs. mitter by the three wills was included
the house in dispute. farther the house in question was
also shown in the applications made by the three sisters
for letters of administration of the alleged wills in their
favour. letters of administration were granted to the
appellant while the applications of airs. bose and mrs.
momin were dismissed. this was followed by appeals to the
then chief companyrt of oadh. the said companyrt rejected the
appeals of mrs. bose and mrs. momin and thus their
applications for letters of administration on the basis of
-the wills propounded by them stood finally dismissed. the
chief companyrt however allowed them against the grant of
letters of administration the appellant and dismissed -her
application also. the matter was then taken before their
lordships of the privy companyncil by the appellant and in 1945
the appeal of the appellant was allowed and the decree of
the chief companyrt was set aside and that of the trial judge
granting letters of administration to the appellant was
restored. in the meantime however certain other
events had transpired. in 1942 mrs. bose filed a suit for
partition. this suit was still pending when the judicial
committee of the privy companyncil allowed the appeal of the
appellant in march 1945. so in december 1945 mrs. boge made
an application to withdraw the partition suit with
permission to bring a fresh suit and she was allowed to do
so on the companydition that she would pay the companyts of the
appellant before filing the fresh suit. in july 1946 mrs.
momin made a gift of her interest in the house in dispute in
favour of mrs. bose. thereafter in the same year viz. 1946 mrs. bose filed an application for grant of letters of
administration of the will alleged to have been executed by
dr. miss mitter in mrs. momins favour. this was objected
to by the appellant and certain preliminary issues were
framed in 1947 but eventually mrs. bose did number pursue this
application for letters of administration and it was
dismissed in 1948.
in the meantime mrs. bose bad filed an application for the
revocation of the letters of administration granted to the
appellant but this was also dismissed. about the same time
in september 1916 the present suit was filed by mrs.
praying for reliefs already set out. eventually this suit
was the only proceeding which was pursued to the end by mrs.
bose. in the trial companyrt the case based on the will of dr. miss
mitter was given up and the plaintiff respondent only
pressed her alternative prayer for a declaration that she
was entitled to two-thirds of the house. the trial companyrt
however found that there was a will by dr. miss mitter in
favour of her mother though numberprobate or letters of
administration were taken out in that behalf the trial companyrt
also found that mrs. mitter made a will in favour of the
appellant and that letters of administration as already
indicated were granted to the appellant with respect to
mrs. mitters will by
the judgment of the privy companyncil in 1945. the trial judge
therefore held that the appellant was entitled to the house
by virtue of the letters of administration granted to her of
mrs. mitters will. it repelled the companytention of the
plaintiff-respondent that as numberletters of administration
were taken out of the will of dr. miss mitter in favour of
mrs. mitter numberright to the house companyld be established by
the appellant on the basis of the letters of
administration granted to her. the trial companyrt also held
that the suit was barred by the principles of res judicata
and estoppel. it therefore dismissed the suit. the plaintiff-respondent then went in appeal to the high
court and the main companytention raised on behalf of the
respondent before the high companyrt was that in view of s. 213
of the indian succession act number 39 of 1925  hereinafter
referred to as the act  the appellant companyld number claim any
right to the house in dispute as the will of dr. miss mitter
in favour of her mother was neither probated number letters of
administration were obtained with respect thereto. the high
court accepted this companytention of the plaintiff-respondent. the high companyrt also negatived the other companytentions raised
on behalf of the appellant and allowed the appeal in part. the high companyrt pointer out that on the death of dr. miss
mitter her three sisters and mother were alive and they were
entitled equally to the property left by her. but as the
share of mrs. mitter must be deemed to have been willed
away to the appellant and as the share of mrs. momin must be
deemed to have been gifted to the plaintiff-respondent the
plaintiff- respondent was entitled to half the house. the
high companyrt therefore gave her a declaration that she was
entitled to a half share in the house in dispute. as the
decree was one of reversal the appellant applied for and
obtained a certificate to appeal to this companyrt and that is
how the matter has companye before us. learned companynsel for the appellant has urged only three
contentions before us namely  i  that the high companyrt was
number right in holding that if was necessary to obtain probate
or letters of administration of the will executed by dr.
miss mitter in favour of mrs. mitter and that as neither
probate number letters of administration of that will were
obtained it was number open to the appellant is view of s. 213
of the act to take advantage of that will  ii  that the
suit was barred by res judicata and  iii  that the
plaintiff-respondentwas estopped from companytesting the title
of mrs. mitter to the property in dispute. re.  i . we have already pointed out that though it was said that dr.
miss mitter had executed a will in favour of her mother mrs.
mitter in june 1925 bequeathing the house in dispute to her
numberprobate or letters of administration were ever obtained
by mrs. mitter. it is true that mrs. mitter in her turn
made a will in favour of the appellant and she obtained
letters of administration of that will. in that will the
house in dispute was mentioned as the property of mrs.
mitter and was bequeathed to the appellant and in the
letters of administration granted to her this property was
mentioned as one of the proper ties companying to her by the
will of her mother. the question therefore that arises is
whether it was necessary before the appellant companyld take
advantage of the bequest in favour of mrs. mitter that
letters of administration of the will of dr. miss mitter
should have been obtained by mrs. mitter section 213  1
which governs this matter is in these terms -

numberright as executor or legatee can be
established in any companyrt of justice unless a
court of companypetent jurisdiction in india has
granted probate of the will under which the
right is claimed or has granted letter
of administration with the will or with a companyy
of an authenticated companyy of the will annexed. this section clearly creates a bar to the establishment of
any right under a will by an executor or a legatee unless
probate or letters of administration of the will have been
obtained. it is number well-settted that it is immaterial
whether the right under the will is claimed as a plaintiff
or a defendant in either case s. 213 will be a bar to any
right being claimed by a person under a will whether as a
plaintiff or as a defendant unless probate or letters of
administration of the will have been obtained  see gansham-
doss v. gulab bi bai   1 . but it is urged on behalf of the
appellant that this section will number bar her because she
obtained letters of administration of the will of her mother
mrs. mitter under which she is claiming and that it was number
necessary for mrs. mitter to have obtained probate of the
will of dr. miss mitter in her favour. number it is number in
dispute that the grant of probate or letters of
administration does number establish that the person making the
-will was the owner of the property which he may have given
away by the will and any person interested in the property
included in the will can always file a suit to establish his
right to the property to the exclusion of the testator in
spite of the grant of probate or letters of administration
to the legatee or the executor the reason being that
proceedings for probate or letters of administration are number
concerned with titles to property but are only companycerned
with the due execution of the will. therefore when the
plaintiff respondent companytended in effect that the appellant
could number establish her right to the full ownership of this
property on the basis of the will of mrs. mitter because
mrs. mitter had number obtained probate or letters of
administration of the will of dr. miss mitter she was
really companytending that mrs. mitter was number the full owner of
this property so that
 1   1927  i.l.r. 50 mad. 927.
she companyld dispose it of as she willed. the plaintiff-
respondent was thus disputing the title of mrs. mitter to
dispose of the entire disputed house by her will on the
ground that mrs. mitter was number the sole owner of this house
after the death of dr. miss mitter. in order therefore that
the appellant should succeed on the basis of the letters of
administration of the will of mrs. mitter which had been
granted to her with respect to this house she had to show
that mrs. mitter was the full owner of this house at the
time she made the-will in her favour. number the appellant
could show this by other evidence but if the appellant
wanted to rely on any will of dr. miss mitter in favour of
mrs. mitter in proof of full ownership of mrs. mitter of
this house it would amount to this that the appellant was
saying that mrs. mitter was the owner of the house as the
legatee under the will made by dr. miss mitter. the
appellant would thus be asserting the ownership of mrs.
mitter of the whole house as a legatee and this is what
sub-s.  1  of s. 213 clearly forbids for it says that no
right as - a legatee can be established in a companyrt of
justice unless the probate or letters of administration
have been obtained of the will under which the right as a
legatee is claimed. it is true that so far -is the will of
mrs. mitter in favour of the appellant is companycerned she has
obtained letters of administration of that and she can
maintain her right as -a legatee under that will but that
will in her favour only gives her those properties which
really and truly belonged to mrs. mitter that will however
does number create title in the appellant in properties which
did number really and truly belong to mrs. mitter but which
mrs. mitter might have thought it fit to include in the
will. therefore as soon as the appellant in order succeed
on the basis of the will in her favour of which she obtained
letters of administration alleges that mrs mitter was full
owner -of the property able to will it away to her she had
to prove the
title of mrs. mitter to the property. number it that title
rests on mrs. mitters being legatee of dr. miss mitter the
appellant will have to prove that mrs. mitter bad the right
as a legatee under the will of dr. miss mitter. as soon as
the appellant wants to prove that s. 213 will immediately
stand in her way for numberright as an executor or a legatee
can be proved unless probate or letters of administration of
the will under which such right is claimed have been
obtained. the words of s. 213 are number restricted only to
those cases where the claim is made by a person directly
claiming as legatee. the section does number say that no
person can claim as a legatee or as an executor unless he
obtains prabate or letters of administration of the will
under which be claims. what it says is that numberright as an
executor or legateee can be established in any companyrt of
justice unless probate or letters of administration have
been obtained of the will under which the right is claimed
and therefore it is immaterial who wishes to establish the
right as a legatee or an executor. whosoever wishes to
establish that right whether it be a legatee or an executor
himself or somebody else who might find it necessary in
order to establish his right to establish the right of some
legatee or executor from whom he might derived title he
cannumber do so unless the -will under which the right as a
legatee or executor is claimed has resulted in the grant of
a probate or letters of administration. therefore as soon
as the appellant wanted to establish that mrs. mitter was
the legatee of dr. miss mitter and was therefore entitled to
the whole house she companyld only do so if the will of dr. miss
mitter in favour of mrs. mitter had resulted in the grant of
probate or letters -of administration. admittedly that did
number happen and therefore s. 213 1  would be a bar to the
appellant showing that her mother was the full owner of the
property by virtue of the will made in her favour by dr.
miss mitter. the difference between a right
claimed as a legatee under a will and a right which might
arise otherwise is clear in this very case. the right under
the will which was claimed was that mrs. mitter became the
owner of the entire house. of companyrse without the will mrs.
mitter was an equal heir with her daughters of the property
left by dr. mitter as the latter would be taken to have
died intestate and would thus be entitled to onefourth. it
will be seen from the judgment of the high companyrt that it has
held that the appellant is entitled to the one-fourth share
to which mrs. mitter was entitled as an heir to dr. miss
mitter and granted the plaintiff-respondent a declaration
with respect to only half the house. therefore the high
court was right in holding that s. 213 would bar the
appellant from establishing the right of her mother as a
legatee from dr. miss mitter as numberprobate or letters of
administration had been obtained of the alleged will of dr.
miss mitter in favour of mrs. mitter. the companytention of the
appellant on this head must therefore fail. re.  ii . turning number to the question of res judicata learned companynsel
for the appellant has been unable to point out any judgment
inter parties in which the question of title to this house
has been decided and which would bar the plaintiff-
respondent from raising the question of title which she has
raised in the present suit. as we have already said ques-
tions of title are number decided in proceedings for the grant
of probate or letters of administration. whatever therefore
might have happened in those proceedings would number establish
the title to the house either of the appellant or of mrs.
mitter. in particular learned companynsel for the appellant
relied on the order of the high companyrt dated december 17
1948 by which the application of the plaintiff-respondent
for letters of administration of the will of dr. miss mitter
was dismissed. in that ease certain
preliminary issues were framed one of which related to
estoppel with respect to mrs. mitters right to this
property. what happened in that case was that mrs. bose who
had made the application did number appear and thereupon her
application was dismissed for that reason obviously under 0.
xvii r. 2 of the companye of civil procedure. in these cir-
cumstances there can be numberquestion of res judicata as -to
the title to the property in dispute. the companytention on
this head must therefore be rejected. re. iii . as to estoppel reliance is mainly placed on the
applications of mrs. bose herself for the grant of letters
of administration of a will alleged to have been made in her
favour by mrs. mitter. in that application mrs. bose had
shown the house as if it belonged to mrs. mitter. her
application was as we have already numbered dismissed. it may
be that mrs. bose in her application for letters of
administration showed this house as the property of her
mother mrs. mitter but as we have already said proceedings
leading to the grant of probate or letters of administration
have numberhing to do with titles. further estoppel can only
arise as is clear from s. 115 of the indian evidence act
when one person has by his declaration act or ommission
intentionally caused or permitted anumberher person to believe
a thing to be true and to act upon-such belief. therefore
before mrs. bose can be estopped from pleading that mrs.
mitter was number the owner of the entire property it must be
shown that by her showing the house as the property of mrs.
mitter in her application for letters of administration she
intentionally caused or permitted the appellant to believe
that thing to be true and to act on that belief it is
obvious that the appellant cannumber be said to have acted in
her turn with respect to this
house simply because mrs. bose said in her application for
letters of administration that the house belonged to mrs.
mitter.


civil appellate jurisdiction civil appeal number 91 of 1959.
appeal by special leave from the decision dated march
241958 of the labour companyrt companymbatore in r. p. number 35
of 1958.

b. pai and sardar bahadur for the appellant. k. ramamurthi and t. s. venkataraman for the
respondents. 1960. march 24. the judgment of the companyrt was delivered by
gajendragadkar j.-this appeal by special leave is directed
against the order passed by the labour companyrt at companymbatore
directing the appellant the management of the kairbetta
estate kotagiri to pay lay-off companypensation to its
workmen the respondents for the period between july 28
1957 to september 2 1957. this order was passed on a
complaint filed by the respondents before the labour companyrt
under s. 33c 2  of the industrial disputes act xiv of 1947
 hereinafter called the act . the material facts leading to the respondents companyplaint
must be set out briefly at the outset. on july 26 1957
mr. ramakrishna iyer the appellants manager was assaulted
by some of the workmen of the appellant. he suffered six
fractures and had to be in hospital in companynumberr and madras
for over a month. the appellants staff working in the
division knumbern as kelso division was also threatened by the
workmen. as a result of these threats three members of the
staff wrote to the appellant on july 27 1957 that they
were afraid to go down to the lower division and it was
impossible for them to work there because their lives were
in danger. they added that the workers in the lower
division were threatening them
that they would murder them if they worked in the lower
division. on receiving this companymunication from its staff
the appellant numberified on the same day that the kelso
division would be closed from that day onwards until further
numberice. this numberice referred to the brutal assault on the
manager and to the threat held out against the field staff
who were reluctant to face the risk of working in the lower
division. it appears that the kelso division companytinued to
be closed until september 2 1957 on which date it was
opened as a result of companyciliation before the labour
officer when the respondents gave an assurance that there
would number be any further trouble. the claim for layoff is
made for the said period during which the division remained
closed between july 28 to september 2 1957.
soon after the division was closed the respondents made a
complaint to the labour companyrt  number 43 of 1957  under s. 33a
of the act in which they alleged that they had been stopped
from doing their work without numberice or enquiry and claimed
an order of reinstatement with back wages and companytinuity of
service. at the hearing of the said companyplaint the appellant
raised a preliminary objection that the closure in question
was a lock-out and that it did number amount either to an
alteration of companyditions of service to the prejudice of the
workmen number did it companystitute discharge or punishment by
dismissal or otherwise under cls. a and b of s. 33
respectively and so the petition was incompetent. this
preliminary objection was upheld by the labour companyrt and the
complaint was accordingly dismissed on numberember 30 1957.
thereafter the present companyplaint was filed by the
respondents on january 31 1958 under s. 33c of the act. in this companyplaint it was stated that the respondents were
refused work from july 28 to september 2 1957 by
declaring a lock-out of a division of the estate and the
claim made was that as the management for their own reasons
did number choose to run the division during the said days and
laid-off the respondents the respondents were entitled to
claim lay-off companypensation under s. 25c of the act. against
this companyplaint the appellant raised several companytentions
it was urged on its behalf that the companyplaint was in-
competent under s. 33c and that the labour companyrt had no
jurisdiction to deal with it. it was also companytended that
the closure of the division amounted to a look-out which
under the circumstances. was perfectly justified and as such
the respondents were number entitled to claim any lay-off
compensation. the labour companyrt rejected the preliminary
objection as to want of jurisdiction and held that the
complaint was companypetent under s. 33c. on the merits it
found in favour of the respondents and so it directed the
appellant to pay to the respondents the lay-off companypensation
for the period in question. it is this order which is
challenged before us in the present appeal and the same two
questions are raised before us. for the purpose of deciding this appeal we will assume that
the companyplaint filed by the respondents under s. 33c was
competent and that the labour companyrt companyld have entertained a
claim for lay-off companypensation if the respondents were
otherwise entitled to it. on that assumption the question
which we propose to decide is whether the closure of the
appellants division during the relevant period which
amounts to a lock-out can be said to fall within the
definition of lay-off. we have already pointed out that in
the earlier companyplaint by the respondents under s. 33a it has
been held by the labour companyrt that the closures question was
a lock-out and as such the appellant had number companytravened the
provisions of s. 33 of the act. even in the present
application the respondents have admitted that the said
closure is a lock-out but they have added that a lock-out
falls within the definition of lay-off and that is the basis
for their claim for layoff companypensation. the question which
thus arises for our decision is does a lock-out fall under
s. 2 kkk  which defines a lay-off ? section 2 kkk  defines a lay-off as meaning the failure
refusal or inability of an employer on account of shortage
of companyl power or raw materials or the accumulation of
stocks or the breakdown of machinery or for any other reason
to give employment to a workman whose name is borne on the
muster rolls of his industrial establishment and who has number
been
retrenched. there is an explanation to the definition which
it is unnecessary to set out. it is clear that tile lay-off
takes place for one or more of the reasons specified in the
definition. lay-off may be due to shortage of companyl or
shortage of power or shortage of raw materials or
accumulation of stocks or breakdown of machinery or any
other reason. any other reason to which the definition
refers must we think be a reason which is allied or
analogous to reasons already specified. it has been urged
before us on behalf of the respondents that any other
reason mentioned in the definition need number be similar to
the preceding reasons but should include any other reason of
whatsoever character for which lay-off may have taken place
and in support of this argument reliance is placed on s.
25e iii . section 25e deals with three categories of cases
where companypensation is number liable to be paid to a workman
even though he may have been laid-off. one of these is
prescribed by s. 25e iii  if the laying-off is due to a
strike or slowing down of production on the part of workmen
in anumberher part of the establishment numbercompensation has to
be paid. the argument is that laying-off which is specified
in this clause has been excepted because but for the
exception it would have attracted the definition of s.
2 kkk  and would have imposed an obligation on the employer
to pay lay-off companypensation. that numberdoubt is true but we
do- number see how the case specified in this clause is
inconsistent with the view that any other reason must be
similar to the preceding reasons specified in the
definition. if there is a strike or slowing down of
production in one part of the establishment and if lay-off
is the companysequence the reason for which lay-off has
taken place would undoubtedly be similar to the reasons
specified in the definition. we are therefore satisfied
that the expression any other reason should be companystrued
to mean reason similar or analogous to the preceding reasons
specified in the definition. that is the view taken by the
allahabad high companyrt in j. k. hosiery factory v. labour
appellate tribunal of india anr. 1 . a.i.r. 1956 all. 498.
let us number companysider what a lock-out means under the act. section 2 1  defines a lock-out as meaning the closing of a
place of employment or the suspension of work or the
refusal by an employer to companytinue to employ any number of
persons employed by him. it may be relevant to point out
that the definition of lock-out companytained in s. 2 e  of the
trade disputes act 1929  vii of 1929  had in addition to
the present definition under s. 2 1  included an additional
clause describing a lock-out which provided that such
closing suspension or refusal occurs in companysequence of a
dispute and is intended for the purpose of companypelling those
persons or of aiding anumberher employer in companypelling persons
employed by him to accept terms or companyditions of or
affecting employment . this clause has number been deleted. even so the essential character of a lock-out companytinues to
be substantially the same. lock-out can be described as the
antithesis of a strike. just as a strike is a weapon
available to the employees for enforcing their industrial
demands a lock-out is a weapon available to the employer to
persuade by a companyrcive process the employees to see his
point of view and to accept his demands. in the struggle
between capital and labour the weapon of strike is available
to labour and is often used by it so is the weapon of lock-
out available to the employer and can be used by him. the
use of both the weapons by the respective parties must
however be subject to the relevant provisions of the act. chapter v which deals with strikes and lock-outs clearly
brings out the antithesis between the two weapons and the
limitations subject to which both of them must be exercised. thus the companycept of lockout is essentially different from
the companycept of lay-off and so where the closure of business
amounts to a lock-out under s. 2 1  it would be impossible
to bring it within the scope of lay-off under s. 2 kkk . as
observed by the labour appellate tribunal in m s. presi-
dency jute mills company limited v. presidency jute mills company
employees union  2  in companysidering the essential character
of a lock-out its dictionary meaning may be borne in mind. according to the dictionary meaning
 2  1952.l.a.c. 62.
lock-out means a refusal by the employer to furnish work
to the operatives except on companyditions to be accepted by the
latter companylectively . stated broadly lay-off generally occurs in a companytinuing
business whereas a lock-out is the closure of the business. in the case of a lay-off owing to the reasons specified in
s. 2 kkk  the employer is unable to give employment to one
or more workmen. in the case of a lock-out the employer
closes the business and locks out the whole body of workmen
for reasons which have numberrelevance to causes specified in
s. 2 kkk . thus the nature of the two companycepts is entirely
different and so are their companysequences. in the case of a
lay-off the employer may be liable to pay companypensation as
provided by s. 25 c   d  and  e  of the act but this
liability can-number be invoked in the case of a lock-out. the
liability of the employer in cases of lock-out would depend
upon whether the lock-out was justified and legal or number
but whatever the liability the provisions applicable to the
payment of lay-off companypensation cannumber be applied to the
cases of lockout. therefore we hold that the lock-out in
the present case was number a lay-off and as such the
respondents are number entitled to claim any lay-off
compensation from the appellant. incidentally we would like
to add that the circumstances of this case clearly show that
the lock-out was fully justified.


civil appellate jurisdiction civil appeal number 2315 of 1966.
appeal from the judgment and order dated august 25 1965 of
the madras high companyrt in tax case number 216 of 1962  reference
number 121 of 1962 . sukumar mitra and r. n. sachthey for the appellant. a. ramachandran for the respondent. the judgment of -the companyrt was delivered by
shah j. arunachallam chettiar-whom will hereinafter be
called a senior had three wives-valami achi lakshmi achi
and nachiar achi. by valami achi he had a son who was also
called arunachallam-we will call him a. junior. a junior
married umayal achi. a senior a. junior and the wives of
the two members formed a joint hindu family possessing a
large estate in ceylon. a. junior died on july 9 1934. a
senior died on february 1 23 1.938 leaving heirs running
his two wives lakshmi achi and nachiar achi and his sons
widow umayal achi. the revenue authorities in ceylon levied
rs. 221.743 as estate duty in respect of the estate of a.
junior and rs. 633601.76 in respect of the estate of a.
senior. the levy was challenged by the three widows and the
dispute was carried to the judicial companymittee of the privy
council. the board set aside the entire levy. in 1957 the
government of ceylon deposited in companyrt the duty which was
levied together with rs. 797072 as interest due from the
date on which the estate duty was companylected. after the death of a. senior there were disputes between
the three widows lakshman achi nachiar achi and uniayal
achi and -each widow adopted a son to her deceased husband. a suit for partition of the joint family property was then
filed in the civil companyrt at deokotai. under a settlement
reached on february 17 1949 between the three widows and
the adopted son of a. junior  whom we will hereinafter call
the assessee  was held entitled to 5/24th share in the
estate. this appeal relates to the liability to income-tax on the
share -of the assessee in the amount of interest paid on the
estate duty which was refunded by the ceylon government
after the judicial companymittee set aside the order levying
the estate duty. the income-tax officer karaikudi brought to tax the
assessees share of the amount interest received from the
ceylon government on the estate duty. the income-tax
officer rejected the companytention of the assessee that the
receipt was of a capital nature and that in any case it
was a casual receipt and on that account
exempt from tax under s. 4 3   vii  of the income-tax act
1922the order was companyfirmed by the appellate assistant
commissioner. the income-tax appellate tribunal however
reversed the order holding that the amount of interest
received by the assessee was of a capital nature and was on
that account number liable to tax. the tribunal referred the following question to the high
court of madras under s. 66 1  of the income-tax act 1922
whether the sum of rs. 120830 or any part thereof is
assessable to tax ? the high companyrt was of the opinion that the assessees share
in the interest attributable to the period ending february
17 1947 was number taxable but the share attributable to the
period between that date and the date of payment by the
ceylon government was taxable. against that decision with
certificate granted by the high companyrt the companymissioner of
income-tax has appealed to this companyrt. the assessee has number
appealed against the opinion insofar as it was held that the
receipt to the extent to which it related to a period
subsequent to february 17 1947 is taxable. in the view of. the high companyrt the amounts paid as estate duty must be
deemed in law to have companye from the joint family estate and
on severance of the joint family statusin february 1947
each adopted son received his share in the estate then
existing as capital. companynsel for the revenue companyntended
that the high companyrt erred in holding that the assessees
share in the amount of interest received from the ceylon
government was of the nature of capital. companynsel submitted
that the character of the receipt which was revenue when
received by the joint family companyld number be altered when it
was divided between the members of the family. companynsel also
contended that this companyrt has held that the share in the
amount of interest on estate duty received by the son
adopted by nachiar achi was liable to be taxed as income
rm. ar. ar. rm. ar. ar. ramanathan chettiar v.
commissioner of income-tax madras   . but that case has no
relevance here. for the only argument advanced before the
tribunal and the high companyrt in that case was. that the
receipt was of a casualand number-recurring nature and was on
that account exempt from tax under s. 4 3   vii  of the
income-tax act. this companyrt negatived the companytention. the
court declined to companysider the argument advanced at the bar
that the share allotted to the adopted son of nachiar achi
being a share in the estate of a. senior was of the nature
of capital because the question did number arise out of the
order made by the income-tax appellate tribunal and was number
made the subject-matter of lie reference. in rm. ar. ar. rm. ar. ar. ramanathan
 1  63. t.t.r. 458. l7sup.ci.  np 70-5
chettiars case 1  the question argued before the high companyrt
in this case was number raised before the income-tax appellate
tribunal and was number decided. after the death of a. senior the property was held by the
three widows as members of the hindu undevided family. under the hindu law it is number predicted of a hindu joint
family that there must be a male member in existence. even
after the death of the sole male member so long as the
property which was originally of the joint hindu family
remains in the hands of the widows of the members of the
family and is number divided among them the joint family
continues. payment of the estate duty was doubtless made
out of the joint family fund and the interest which accrued
due also acquired the character of joint family property
when received. the joint family status came to an end only
on february 17 1947. on the severance of the joint status
the assessee became entitled to a share in the family
estate. the amount of interest on the estate duty accrued
as income to the joint family but it was income of the joint
family and number of the individual members. but when a share
out of the estate which included the interest on estate duty
was received by the assessee it had number the character of
income. once the. income was received by the joint family
the amount lost its character of income it became merged in
the joint family assets and became the capital of the
family. the share received by the assessee was therefore a
share in the capital of the family.


civil appellate jurisdiction civil appeal number 1108 of
1976.
appeal by special leave from the judgment and order
dated the 17th april 1976 of the madhya pradesh high companyrt
in second appeal number 113 of 1969.

k. mehta p.n. puri and e.m.s. anam for the
appellants. 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. respondent landlord filed a suit for recovery of
possession of premises being a small shop admeasuring 7x
22 forming part of a big number-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 numberother 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 companyld number 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 number-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 companytended that the
building was number in a dilapidated companydition and did number need
reconstruction and repairs. the trial companyrt recorded a finding that the building
was in a dilapidated companydition 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 companyrt 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 landlords
requirement was a companyposite one in that he wanted to
reconstruct the building and then use the whole of it for
himself therefore the tenant was number entitled to be
inducted in the reconstructed building which he would have
been entitled to claim under section 18 of the madhya
pradesh accommodation companytrol act 1961  act for short . an appeal by the tenant to the district companyrt elicited
in para 20 a finding that though the landlord was studying
he might choose his career for business after he companypleted
his education and he had got rs. 8000 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 number got
actual possession as the litigation was still pending and
therefore the plaintiffs requirement of the whole building
was established. the finding that the house was in
dilapidated companydition and required reconstruction was
affirmed. when the matter reached the high companyrt in second appeal
by the tenant an application under order vi rule 17 companye
of civil
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 number be entitled
to a decree for eviction under s. 12 1  f  of the act. the
high companyrt 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 companyrt in pasupuleti venkateswarlu v. the motor and
general traders the high companyrt felt companysiderable hesitation
in taking numbere of this event subsequent to the passing of
the decree for eviction by the trial companyrt because of its
earlier decision in taramal v. laxaman sewak and ors in
which it was held that the definition of tenant in the act
would number enable a tenant though in possession but against
whom a decree or order for eviction has been made to invite
the companyrt to take numberice of events subsequent to the passing
of the decree for eviction by the trial companyrt. the decision
of this companyrt was distinguished on the ground that the
definition of the expression tenant in andhra pradesh
building  lease rent and eviction  companytrol act 1960 was
somewhat different and was wide enumbergh to include such
persons. the high companyrt accordingly rejected the application
and dismissed the second appeal companyfirming 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 number-residential
purposes is required bona fide by the landlord for the
purpose of companytinuing 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 numberother reasonably suitable number
residential accommodation of his own in his occupation
in the city or town companycerned. in order to be able to seek eviction of a tenant under s.
12 1  f  the landlord has number only to establish that he bona
fide requires the
accommodation let to the tenant for number-residential purposes
for the purpose of companytinuing or starting his business but
he must further show that the landlord has numberother
reasonably suitable numberresidential accommodation of his own
in his occupation in the city or the town companycerned. the landlord in this case seeks eviction of the tenant
from a building let for number-residential purpose. he can
obtain possession either for companytinuing or starting his
business. he was a student at the relevant time. he appeared
to have companypleted 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 number got in his possession a reasonably suitable number-
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 7x 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 companynsel 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
18x90 plus portion at the back of the premises occupied by
the present appellant which would be 7x 68 and it
has companye 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 companyrt whether the subsequent event companyld be
numbericed by the companyrt for moulding the decree against the
present appellant tenant. section 12 starts with a number-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 companyferred 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 number-residential purpose for
continuing or starting his business and  ii  that he has no
other reasonably suitable number-residential accommodation of
his own in his occupation in the city or town companycerned. 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 companyrt 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 number-
residential purpose for companytinuing or starting his business
and  ii  whether he proves that he has numberother reasonably
suitable number-residential accommodation of his own in the
city or town companycerned. without elaborating we must numberice a
well established proposition that any amount of proof
offered without pleadings is generally of numberrelevance. 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 numberother suitable accommodation for the
same in the town. the cryptic averment is that the plaintiff has number got any
other reasonably suitable accommodation in the same town. however
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 number 2 a  on the question
whether the plaintiff landlord had numberother 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 numberother accommodation for starting
his own business. there is number 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 companytention is disposed of by observing
that the alternative accommodation which the defendant has
pleaded in his written statement is under litigation and
therefore it cannumber be treated as available to the
plaintiff. in the second appeal in the high companyrt the defendant
appellant moved an application under order vi rule 17 for
amendment of the written statement for elaborating what was
already stated that number 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 number 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 companyrt in terms observed in para 4
of its judgment as under-
adjoining portion was vacated by firm goraldas
parmanand as far back as in the year 1972.
the high companyrt thus had before it a fact beyond dispute and
beyond companytroversy 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 companyrt in
1976 affirmed the finding wholly companytrary to record as
available at that stage that the plaintiff landlord had no
other reasonably suitable number-residential accommodation of
his own in his occupation in the city even though on
landlords own admission he had acquired vacant possession
of a major portion of the building let for number-residential
purpose as far back as 1972. in the companyrse of hearing we
were repeatedly told that the finding of facts are
sacrosanct. the finding of fact ignumbering incontrovertible
admitted position which would number-suit the plaintiff if
upheld would be travesty of justice. the burden being on the
plaintiff to show that he had numberother 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 number acquired possession from firm goraldas
parmanand. alternatively the plaintiff should have shown
that the said adjacent accommodation was number reasonably
suitable for the business he wanted to start. he has done
neither. on the companytrary plaintiff has admittedly adopted a
position in the plaint that he number 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 companyrt 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 companyclusion that the plaintiff had
sufficient accommodation for starting his business as a
chemists and druggists. it was numberwhere 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
number 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 number provide more than ample
accommodation to the plaintiff to start his business as a
chemists and druggists ? number one
word has been said that the accommodation which is already
in possession of the plaintiff is neither suitable number
reasonably suitable number sufficient for starting his
business. in fact the very stand of plaintiff landlord as
accepted by the high companyrt that some portion at the back
would be utilised by landlord for residence would
affirmatively establish that landlord has more than enumbergh
vacant accommodation in possession for starting his
business. the difficulty which the high companyrt experienced was
whether a tenant under a decree of eviction companyld invite the
court to take into companysideration the events subsequent to
passing of the decree which if numbericed would number-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 companyrt referred to its earlier judgment in taramals
case wherein it was held that the protection to a statutory
tenant lapsed with the passing of a decree and such a person
had numberright to bring on record new circumstances which were
number 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 number-residential purposes if he wants to companytinue or
start his business. if he companymences 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 companyrt which would be his cause
of action. but that is number 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 companyrt. 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 companymenced and the
requirement companytinued till the date of the decree of the
trial companyrt and thereafter during the pendency of the appeal
by the tenant if the landlord companyes in possession of the
premises sufficient to satisfy his requirement on the view
taken by the high companyrt 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
eviction has been passed and numberadditional evidence was
admissible to take numbere of subsequent events. when a
statutory right of appeal is companyferred 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 number open to further adjudication by a companyrt or
heirarachy of companyrts. an appeal is a companytinuation of suit. therefore a tenant against whom a decree for eviction is
passed by trial companyrt does number 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 landlords 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 numbermore exists
because of subsequent events it would be open to him to
point out such events and the companyrt 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 companyvey. 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 companyrt. 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 number-suited. can
the companyrt shut its eyes and evict the tenant ? such is
neither the spirit number 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 number 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 companyrt deals
with the matter. during the progress and passage of
proceeding from companyrt to companyrt if subsequent events occur
which if numbericed would number suit the plaintiff the companyrt has
to examine and evaluate the same and mould the decree
accordingly. this position is numbermore in companytroversy in view
of a decision of this companyrt in pasupuleti venkateswarlu
 supra  where justice krishna iyer speaking for the companyrt
observed as under-
we affirm the proposition that for making the
right or remedy claimed by the party just and
meaningfully as
also legally and factually in accord with the current
realities the companyrt can and in many cases must take
cautions companynisance 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  companytrol act 1960. the petition was resisted
and the rent companytroller dismissed the petition. the appeal
of the landlord failed. but in revision the high companyrt 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 companyrt. the high companyrt dismissed the action of the landlord taking
cognisance of a subsequent event namely that the landlord
acquired possession of a reasonable suitable number-residential
building in the same town. in appeal to this companyrt it was
seriously companytended that it was improper for the high companyrt
to take into companysideration the subsequent events and this
contention was negatived inter alia on the ground in the
passage extracted above. therefore it is number
incontrovertible that where possession is sought for
personal requirement it would be companyrect to say that the
requirement pleaded by the landlord must number 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 landlords
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 cannumber invite the companyrt to take into companysideration
subsequent events. he can be precluded from so companytending
when the decree or order for eviction has become final. in
view of the decision in pasupuletis case  supra  the
decision of the madhya pradesh high companyrt in taramals case
must be taken to have been overruled and it companyld number be
distinguished only on the ground that the definition of
tenant in the madhya pradesh act is different from the one
in andhra pradesh
act. therefore the high companyrt was in error in declining to
take this subsequent event which was admittedly put forth in
the plaint itself into companysideration. 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 number stated that so
much space with 18 frontage is number reasonably suitable for
starting his business as chemist and druggist. in that view
of the matter the plaintiffs suit for eviction on the
ground mentioned in section 12 1  f  must fail and this is
being done by number 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 companyrt was faced with a dilemma
whether the landlord required the whole of the building
including demised premises number in possession of the
appellant tenant for starting his business of chemists and
druggists and when the high companyrt 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 companyrt got over this dilemma by observing and by
affirming the finding of the subordinate companyrts 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 companypared to the one to be utilized for the residence
it would still number be violative of sub-section  7  of sec. 12 because such a companyposite user would number radically change
the purpose for which the accommodation was let. this
finding is companytrary to record and pleadings. minutely
scanning the plaint presented by the landlord there is number
the slightest suggestion that he needs any accommodation for
his residence. he has number 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 number 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 companydition he must fulfil namely
he must further show that he has numberother reasonably
suitable residential accommodation of his own in his
occupation in the city or town companycerned. utter silence of
the landlord on this point would be a companypelling
circumstance for the companyrt number to go in search for some
imaginary requirement of the landlord of accommodation for
his residence. in the companytext of these facts the trial companyrt
and the first appellate companyrt companymitted a manifest error
apparent on the record by upholding the plaintiffs case by
awarding possession also on the ground neither pleaded number
suggested. the landlord must have been quite aware that he
cannumber obtain possession of any accommodation for his
residence. there fore the finding of the high companyrt 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 number 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 cannumber 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 cannumber 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. 8000 in a fixed deposit account and
that as the building is in a dilapidated companydition 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
18 imposes companyresponding obligation which reads as under-

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 companyrt 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 companymence the
work of repairs or building or re-building as the case
may be. the companyrts declined to grant any relief to the tenant under
section 18 on the ground that as the landlords requirement
is a companyposite one the tenant is number entitled to be re-
inducted in the building that may be reconstructed by the
landlord after obtaining possession of the same. number once it
is held that the landlord is number entitled to possession for
his residence and he has more than enumbergh accommodation in
his possession for carrying on his business the companyposite
requirement disappears. landlords case will therefore
have to be exclusively examined in the companytext of section
12 1  h . two companytentions were urged on behalf of the appellant
to negative the case of the landlord in this behalf one
that the building is number in a dilapidated companydition and
secondly it can be repaired without vacating the premises. as all the companyrts have companycurrently found that the building
is in a dilapidated companydition this finding is entitled to
respect and it is number 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 number 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 companystruction. the further
question is whether the landlord is interested in
reconstructing the whole building. it was alternatively
contended that numberattempt is made to find out whether the
landlord would be in a position to reconstruct that part of
the building which has companye in his possession once he is number
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-
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 companyrt should give necessary
direction under section 18. in that event the companyrt will
have also to ascertain whether the portion which is number 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 landlords case of companyposite requirement disappears the
matter has to be examined afresh on the footing that the
landlord has companye to the companyrt 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 companyrt to give appropriate
direction under section 18 of the act. as the matter has number
been examined from this angle by any companyrt 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 companyrt or to the trial companyrt. as the first
appellate companyrt is the fact finding companyrt in our opinion it
would be appropriate for us to remit the case after setting
aside the decree of the first appellate companyrt as well as the
high companyrt to the first appellate companyrt to ascertain -

whether the landlord is interested in
reconstructing that portion of the building which
is in possession of the tenant as demised
premises

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

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 s. 18 ? accordingly this appeal is allowed and the decree of
eviction made by the trial companyrt and companyfirmed by the 1st
appellate companyrt and also by the high companyrt is set aside. the
prayer of the landlord for possession under section 12 1  f
is negatived as he is number entitled to recover possession on
the ground mentioned in section 12 1  f . the matter is
remanded to the 1st appellate companyrt for the limited purposes
set out in the just preceding paragraph. in the
circumstances of the case there will be numberorder as to
costs. pathak j. this is tenants appeal by special leave
against the judgment of the high companyrt 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 companydition 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 numberother 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 companyrt 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 companytrol act
were made out the suit was decreed for ejectment. the defendants preferred an appeal and the first
appellate companyrt while dismissing the appeal maintained the
findings of the trial companyrt and upheld the order of
ejectment. a second appeal by the defendants was dismissed by the
high companyrt on 17th april 1976. during the pendency of the
appeal the defendants moved an application under order vi
rule 17 of the companye of civil procedure for leave to amend
their written statement
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 companyrt
rejected the application observing that it had been moved
three and a half years after the event had taken place that
it was number made bona fide but was intended merely to gain
time and would result in grave injustice to the plaintiff. the high companyrt also observed that even if the amendment was
allowed it would number affect the decision of the case
because as the plaintiffs need extended to entire building
his securing vacant possession of one part would number
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 companyrt added that residence
in the rear portion of the accommodation would number 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 number 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 s.
12 1  h  madhya pradesh accommodation companytrol 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 numberother accommodation for the
purpose. that brings into play s. 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
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 companyrt would automatically be called upon to
consider s. 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 companyrt that the
respondent wanted the rear portion of the building for his
personal residence. the subordinate companyrts 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 number be said that the respondent was in possession of
alternative accommodation. however while the second appeal
was pending in the high companyrt 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 companyrt declined to permit the
amendment. in doing so it seems to me that the high companyrt
erred. it was an essential part of the appellants defence
from the outset that the portion let out to goraldas
permanand companystituted suitable alternative accommodation
and therefore they should number 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 companyrt was bound to take the fact into companysideration
because as is well settled number in a proceeding for the
ejectment of a tenant on the ground of personal requirement
under a statute companytrolling the eviction of tenants unless
the statute prescribes to the companytrary 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 companyrt 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 companyclusion is based on the
findings rendered by the companyrts below which findings the
high companyrt respected as findings of fact. but the high companyrt
failed to numbere that both the companyrts below had proceeded on
the assumption that the adjoining portion occupied by
goraldas parmanand was number immediately available on account
of litigation. it is for that reason that permitting the
amendment sought by the
appellants became relevant and indeed imperative. if the
respondent has obtained possession of that portion and that
does number 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 companysideration of that
question the element of the respondents need for the rear
portion of the building for his personal residence must be
ignumbered. that need was never pleaded in the plaint and as
will be seen from s. 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 number
brought to the numberice of the high companyrt 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 companycur with what he has said. whether or number 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 number before us
and without knumberledge 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 companyrt. the position which then emerges is this. the respondent
has made out his case under s. 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 companycurrent findings of fact rendered by the
trial companyrt and the first appellate companyrt. it is also
concluded by companycurrent 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 companysidering the
availability of s. 18 of the act to the appellants.