Full Judgment Text
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CASE NO.:
Appeal (civil) 321 of 1999
PETITIONER:
BADRINARAYAN CHUNILAL BHUTADA
RESPONDENT:
GOVINDRAM RAMGOPAL MUNDADA
DATE OF JUDGMENT: 15/01/2003
BENCH:
R.C. LAHOTI & BRIJESH KUMAR
JUDGMENT:
JUDGMENT
2003(1) SCR 329
The Judgment of the Court was delivered by
R.C. LAHOTI, J. A decree for eviction in a landlord-tenant litigation
upholding availability of ground for eviction u/s 13(l)(g) of the Bombay
Rents Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter ’the
Act’ for short) but denying the relief of eviction based on the finding on
issue as to comparative hardship within the meaning of Section 13(2) of the
Act is under challenge in this appeal by special leave filed by the
appellant-landlord.
The suit premises are situated in the city of Pune and are described in
city survey as No. 573, Ravivarpet. The premises are the part of a building
having two wings and three floors, i.e. the ground floor and two upper
floors. The eastern wing is in the occupation of the landlord-appellant.
The ground floor is used as a shop. The first and the second floor are used
as residence for the appellant and this family. The western wing is in the
occupation of the tenant-respondent who runs a shop on the ground floor and
resides with his family in the upper two floors. The appellant’s family
consists of the appellant and his wife and four married sons, i.e. five
couples who live as joint family. They have nine grand children, as stated
at the Bar during the course of hearing. The suit property was purchased by
the appellant in the year 1973. In the year 1982 the landlord initiated
proceedings in the court of Small Causes. Pune for recovery of possession
over the premises as also for recovery of arrears of rent and education
cess. The grounds on which the eviction was sought for were (i) default in
payment of arrears, (ii) misuse of the tenancy premises, and (iii)
reasonable and bona fide requirement of the premises by the landlord for
occupation by himself and his family members as residence in the upper
floors and for the business of two sons of the appellant on the ground
floor. The Trial Court held against the appellant on all the three ground
for eviction. In an appeal preferred by the landlord the Appellate Court
too held against the appellant, upholding the findings of the Trial Court,
so far as the grounds of default in payment of arrears and misuse of the
tenancy premises in concerned and on both the grounds confirmed the
findings of trial court. On the ground of requirement, the Appellate Court
held that, so far as the upper two floors are concerned, reasonable and
bona fide requirement of the landlord for occupation by himself and his
family members is made out and that the appellant would suffer great
hardship if the eviction is denied than the hardship which the tenant would
suffer in the event of eviction being ordered. So far as the ground floor
of the tenancy premises is concerned, the Appellate Court held that the
reasonable and bona fide requirement of the landlord for running the
business of his two sons in the tenancy premises is made out but then the
tenant would suffer greater hardship if evicted from the ground floor
compared with the hardship which the landlord would suffer in the event of
the eviction being denied. On these findings, the Appellate Court directed
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a decree for eviction being passed from the residential portion of the
tenance premises, i.e. the first and second floors but denied the eviction
so far as the non-residential part of the tenancy premises, i.e. the ground
floor is concerned.
Feeling aggrieved by the decree of the Appellate Court, both the parties
filed writ petitions in the High Court. The High Court has dismissed both
the writ petitions and refused to interfere with the decree of the
Appellate Court. So far as the decree for eviction from the residential
part of the premises is concerned, the same has achieved finality in view
of the tenant-respondent having not appealed there against. The landlord
has persisted in his claim for eviction from non-residential part of the
tenancy premises. This appeal by special leave is, therefore, confined to
the issue whether the decree for eviction should have been passed against
the tenant-respondent from the non-residential part of the tenancy
premises, i.e. the ground floor also.
Clause (g) of sub-section (1) of Section 13 and sub-section (2) of Section
13 which are relevant for the purpose of this appeal are extracted and
reproduced hereunder :-
13. When landlord may recover possession. (1) Notwithstanding anything
contained in this Act but subject to the provisions of sections 15 and 15A,
a landlord shall be entitled to recover possession of any premises if the
Court is satisfied-
xxx xxx
xxx
(g) that the premises are reasonably and bona fide required by the landlord
for occupation by himself or by any person for whose benefit, the premises
are held (or where the landlord is a trustee of a public charitable trust
that the premises are required for occupation for the purposes of the
trust;
xxx xxx xxx
(2) No decree for eviction shall be passed on the ground specified in
clause (g) of sub-section (1) if the Court is satisfied that, having regard
to all the circumstances of the case including the question whether other
reasonable accommodation is available for the landlord or the tenant,
greater hardship would be caused by passing the decree than by refusing to
pass it.
Where the Court is satisfied that no hardship would be caused either to the
tenant or to the landlord by passing the decree in respect of a part of the
premises, the Court shall pass the decree in respect of such part only.
xxx xxx
xxx
The finding of fact arrived at by the Appellate Court and sustained by the
High Court is that the landlord and the tenant are both engaged in cloth
business, which is being run by the two in the respective ground floors of
the eastern and western wings of the building. On the sons of the landlord
having come up in age, they have started the business of dealing in
electronic goods. As there was no other independent accommodation available
for the business of electronic goods, the same had to be commenced and
accommodated in the shop in which the cloth business was being already
carried on by the landlord. Thus the two businesses, both flourishing as
the evidence reveals, have been squeezed into space of one shop. On the
date of the institution of the suit, the landlord-appellant and his second
son were looking after the cloth business while the electronic goods
business was being looked after by the eldest and the third son of the
appellant. Although the two businesses are being run in the same premises,
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the landlord and his sons felt suffocated on account of inadequate space
for both the businesses. A pre-existing partition on the ground floor had
to be removed and the entire ground floor in the occupation of the landlord
is being made use of for commercial activity and yet the space is
insufficient. In the electronic good shop, TV sets, refrigerators, washing
machines and other such items are required to be kept and displayed as in a
showroom and for that purpose the available space is not enough. On these
facts, the finding as to genuine requirement was arrived at by the
Appellate Court and upheld by the High Court and rightly so in our opinion.
The only question which now survives for decision is the exercise of
discretion under sub-section (2) of Section 13 of the Act.
A perusal of the judgment of the Appellate Court shows that the tenant has
been running his cloth shop in the suit premises since the times of his
father and is the only earning source of the tenant-respondent. The shop is
situated in a locality where mostly cloth shops are situated. The shop also
carries some goodwill. On the contrary, the turnover of the cloth business,
so far as the landlord is concerned, is stated to be around 10-12 lakhs
rupees per year. The turnover of the electronics business is stated to be
around 7-8 lakhs rupees per year. The tenant’s evidence shows that he is
having a lesser turnover and lesser business. The High Court opined that if
the tenant was to be vacated from his shop, he would be required to pay a
huge premium of Rs. 4-5 lakhs for availing other suitable business premises
in the Kapadgunj locality where the suit shop is situated. On the abovesaid
facts and opinion, the question of comparative hardship has been answered
by the Appellate Court in favour of the tenant-respondent. The same
reasoning has found favour with the High Court also.
A perusal of the scheme of the Act, so far as the ground of reasonable and
bona fide requirement by the landlord for occupation of residential or non-
residential premises is concerned, shows that clause (g) of sub-section (1)
of Section 13 contemplates a decree for eviction being passed on proof of
availability of the ground according to law. In spite of a ground for
eviction u/s 13(1)(g) having been made out, the Court may deny the relief
of eviction if the issue as to comparative hardship is answered against the
landlord and in favour of the tenant. Thus in a way, Section 13(2) acts as
a proviso to Section 13(l)(g) the former having an overriding effect on the
latter. The burden of proving availability of ground for eviction under
Section 13(1)(g) lies on the landlord; the burden of proving greater
hardship so as to deprive the landlord of his established right to seek
eviction lies on the tenant.
Sub-section (2) of Section 13 falls more appropriately within the domain of
equitable or social justice. Section 13(2) obliges the Court, in spite of
the finding as to reasonable and genuine requirement having been arrived at
in favour of the landlord, to weigh in scales placing the hardship which
would result to the landlord in case of denial of eviction in one balance
pan and the hardship likely to be suffered by the tenant in case of his
being evicted in the other and then find out judiciously which way the
balance tilts. An empty truism cannot be hardship. A failure of the
landlord to make out a case for eviction under Section 13(l)(g) is not a
hardship to landlord; so also on a case for eviction under Section 13(l)(g)
having been made out the fact that the tenant will be liable to be evicted
is not by itself hardship to tenant. A mere wish or desire of the landlord
to acquire possession over the tenancy premises cannot be said to be bona
fide and reasonable requirement. Requirement implies an element of
necessity. The necessity is a necessity without regard to the degree of
which it may be. For the purpose of Section 13(2) the degree of urgency or
the intensity of felt-need assumes significance. It is a judicious process
of finding out, as far as practicable, and then making a comparative
measure of the two degrees, which is involved in arriving at a finding on
comparative hardship.
The family, the business background of the parties, the availability of
accommodation with either parties or in the township, the extent of
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direness or pressing nature of the need for eviction as against the dieness
of need or urge of the tenant to continue to occupy or cling to the tenance
premises, with reasons therefor, assume relevance. The Court may keep in
view how the things would take shape in a reasonably forseeable future in
either event. The conduct of the parties, their mutual relationship may
also be relevant. In spite of the availability of ground for eviction being
legally sustainable, for the purpose of deciding the issue as to
comparative hardship, the Court may take into consideration availability of
such other premises with the landlord, which though not necessarily
alternative to the suit premises, may still be available to accommodate the
proven requirement of the landlord. The fact that the tenant could have had
shifted to other premises or has missed the opportunity of availing
occupation of their premises or is likely to part with possession over
other premises whereto his business can be or could have been shifted are
all relevant factors for the purpose of Section 13(2) though may not be
relevant for the purpose of Section 13(l)(g). These are illustrative
factor, incapable of being listed fully and precisely, which enter into the
thinking process leading to formulation of opinion on comparative hardship.
The provisions of the Act do not bar a partial eviction being ordered-
rather contemplate a partial eviction specifically-which would of course
depend on answer to the question-whether it would be enough to dislodge the
tenant from only a part of the premises in his possession, and to what
extent, to satisfy the proved requirement of the landlord associated with
consideration of comparative hardship? If the Court is satisfied that the
ends of justice would be met if the tenant is not called upon to vacate the
entire tenancy premises but only a part of it, then the Court may order
partial eviction so that the requirement of the landlord is satisfied and
the tenant is also not deprived of his running business activity. Inasmuch
as Section 13(2) entails the consequence of the landlord being denied
decree of eviction, wholly or partly in spite of his having proved
reasonable and bona fide requirement within the meaning of Section 13(l)
(g), the burden of proving availability of grounds u/s 13(2) of the Act is
on the tenant. It is expected of the parties to raise necessary pleadings,
and the Court to frame an issue based on the pleadings so as to enable
parties to adduce evidence and bring on record such relevant material as
would enable the Court forming an opinion on the issue as to comparative
hardship and consistently with such finding whether a partial eviction
could meet the ends of justice. Even if no issue has been framed, the Court
may discharge its duty by taking into consideration such material as may be
available on record.
The Act does not lay down any guidelines or relevant factors based whereon
the question of comparative hardship is to be decided. A slight indication
is given in the first para of Section 13(2) that regard must be had to (i)
all the circumstances of the case, (ii) including the question whether
other reasonable accommodation is available for the landlord or the tenant.
The expression ’other reasonable accommodation’ as employed here does not
mean an accommodation suitable in all respects as the suit accommodation
is. The Legislalture has chosen it appropriate to leave the determination
of issue on sound discretion of the Court.
In Mst. Bega Begum and Ors. v. Abdul Ahad Khan (dead) by Lrs. Ors., [1979]
1 SCC 273 pari materia provision contained in J & K Rent Act came up for
the consideration of this Court. It was observed that it is no doubt true
that the tenant will have to be ousted from the house if a decree for
eviction is passed but such an event would happen whenever a decree for
eviction is passed and merely because the tenant will be ousted from the
premises where he was running his activity cannot, by itself, be considered
to be a hardship and be a valid ground for refusing the landlord a decree
for eviction. In deciding the extent of the hardship, each party has to
prove its relative advantages or disadvantages and the entire onus cannot
be thrown on plaintiffs to prove that lesser disadvantages will be suffered
by the defendants and that they were remediable. The owner of the property
cannot be denied eviction and compelled to live poorly merely to enable the
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tenants to carry on their flourishing business activity at the cost of the
landlord. The fact that there is no other means for the landlord to augment
his income except by getting the tenancy premises vacated compared against
the conduct of the tenant who having obtained the premises for a fixed
number of years has overstayed and enjoyed the premises for a long period
of time are relevant factors not to deprive the landlord from the
possession over the tenancy premises and recording a finding of no equity
in favour of the tenants continuing in possession any further. If the
tenants prove that they will not be able to get any accommodation anywhere
in the city that may be a relevant consideration. However, the tenant
cannot insist on getting an alternative accommodation of a similar nature
in the same locality because that will be asking for the impossible. What
are to be weighed as relevant factors are the comparative inconvenience,
loss, trouble and prejudice.
In Piper v. Harvery, (1958) 1 AII.E.R. 454, the issue as to comparative
hardship arose for the consideration of Court of Appeals under the Rent
Act, 1957. Lord Denning opined: "When I look at all the evidence in this
case and see the strong case of hardship which the landlord put forward,
and when I see that the tenant did not give any evidence of any attempts
made by him to find other accommodation, to look for another house, either
to buy or to rent, it seems to me that there is only one reasonable
conclusion to be arrived at, and this is that the tenant did not prove (and
the burden is on him to prove) the case of greater hardship." Hudson, L.J.,
opined: "The tenant has not been able to say anything more than the minimum
which every tenant can say, namely, that he has in fact been in occupation
of the bungalow, and that he has not at the moment any other place to go
to. He has not, however, sought to prove anything additional to that by way
of hardship, such as unsucessful attempts to find other accommodation, or,
indeed, to raise the question of his relative financial incompetence as
compared with the landlord." On such state of the case, the Court answered
the issue as to comparative hardship against the tenant and ordered his
eviction.
The learned counsel for the appellant submitted that the statutory
obligation case on the Court to weigh and assess the comparative hardship
has not been properly discharged and that has caused prejudiced to the
appellant. It was pointed out that the burden which lay on the tenant has
been wrongly cast on the appellant as the High Court has expressed during
the course of its judgment that the appellant has adduced no evidence to
show that shops were available in the locality where the tenant could shift
on vacating the suit premises. It was also pointed out that the Appellate
Court and the High Court have completely failed to examine whether at least
a partial eviction from the tenancy premises could have been ordered. It
has come in the evidence that some portions of the ground floor are being
used by the respondent as godown and for storing waste material, the area
whereof is approximately 300 sq. feet as per the site plan available on
record. In view of the case for eviction u/s 13(1)(g) having been made out
by the landlord, if the tenant would have been directed to be evicted at
least from the portions shown as ’godown’ and ’waste material’ in the plan
which portion of the premises has not been in use of business of the
tenant, the tenant would not have suffered any prejudice or hardship or at
least not much thereof. We find merit in the submission so made.
In the peculiar facts and circumstances of this case, we are inclined to
have a specific finding being arrived at by the Appellate Court to meet the
ends of justice.
The appeal is partly allowed. The judgment and decree of the Appellate
Court and upheld by the High Court, to the extent to which eviction from
the non-residential premises (i.e. ground floor) has been denied to the
appellant, is set aside. The case is sent back to the Appellate Court. The
Appellate Court shall frame the following issues :-
(i) Whether the defendant-tenant would suffer greater hardship in the event
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of being evicted than the hardship which the plaintiff-landlord would
suffer in the event of eviction being denied?
(ii) Whether in the facts and circumstances of the case, a partial eviction
would meet the ends of justice and, if so, to what extent?
The Appellate Court may record the findings on the abovesaid issues on the
material already available on record and after hearing the parties. If the
Appellate Court feels that the material already available on record is not
enough to arrive at findings on the abovesaid issues, the parties may be
afforded an opportunity of adducing additional evidence. In the latter
case, the parties shall adduce evidence in a time bound programme. The
proceedings shall be completed as expeditiously as possible and in any case
within a period of four months from the date of communication of this
order.
No order as to the costs of this appeal.