Bhaichand Ratanshi Vs. Laxmishanker
Tribhoyan [1981] INSC 132 (29 July 1981)
REDDY, O. CHINNAPPA (J) REDDY, O. CHINNAPPA
(J) SEN, A.P. (J) ISLAM, BAHARUL (J)
CITATION: 1981 AIR 1690 1982 SCR (1) 153 1981
SCC (3) 502 1981 SCALE (3)1114
CITATOR INFO :
RF 1986 SC1643 (2) F 1987 SC1782 (18)
ACT:
Bombay Rents, Hotel and Lodging House Rates
Control Act 1947-Section 13(1)(g) and 13(2)-Scope of-Comparative hardship-Tests
for deciding-Revisional jurisdiction of the High Court under the Act limited.
HEADNOTE:
In his suit under section 13(1)(g) of Bombay
Rents, Hotel and Lodging House Rates Control Act, 1947 seeking the eviction of
the respondent-defendant from the suit premises, the plaintiff-appellant
claimed that after having been displaced from Uganda on account of political
upheaval in that country he intended to settle down in his native town and that
therefore, he reasonably and bonafide required the suit premises under the
defendant's occupation for setting up his business.
In replication the defendant claimed that he,
a man of slender means, had built up his goodwill by running a business from
the premises over the years and his eviction from the premises would put
greater hardship on him than on the plaintiff. In support of his case he
pleaded that section 13(2) of the Act makes it incumbent on the Court to
refrain from passing an order of eviction under section 13(1)(g) if it is
satisfied that it causes greater hardship to the tenant than to the landlord.
The court of first instance, and in appeal
the District Judge, negatived the defendant's claim of comparative hardship to
him because the defendant himself was not in actual possession of the premises
but had in fact inducted another person who had his own business elsewhere in
the town but used the suit premises as a mere godown.
On appeal the High Court declined to pass an
order of eviction under section 13(1)(g). It held that the defendant, who in
his old age was receiving some maintenance from the licensee for the use of the
premises, would be deprived of his only source of livelihood were he evicted
from the premises and that secondly the fact that the plaintiff had gone back
to Uganda showed that he was not sure whether to settle down in India or go
back to Uganda.
Allowing the appeal.
HELD: Section 13(2) seeks to strike a just
balance between the landlord and tenant. In considering the question of greater
hardship the Court would have to take into account the circumstances which
would tilt the balance of hardship either way. The existence of alternative
accommodation on both sides is an important though not a decisive factor. On
the terms of section 13(2) 154 the question whether or not there would be
greater hardship to the tenant by passing the decree cannot turn on mere burden
of proof but the parties must lead evidence. [157 A- D] The High Court erred in
non-suiting the plaintiff.
There is enough evidence to show that he came
from Uganda as a result of political upheaval in that country, that he had
considerable business experience in that country and that he had the requisite
wherewithal to carry on business. In contrast the defendant was not in actual
possession of the suit premises but had given possession of the premises to
another person who had a separate shop of his own, who only used the premises
as his godown. The mere circumstance that the defendant was aged and infirm and
that the licensee paid him some amount regularly would not imply that a decree
under section 13(1)(g) would cause greater hardship to the defendant. Section
13(2) would have been relevant had the defendant himself been in possession of
the premises. In any event the defendant having died the question of greater
hardship to him under section 13(2) would not arise. [158 A- F] Although the
jurisdiction exercisable by the High Court under the Act is wider than its
jurisdiction under section 115 C.P.C. its revisional jurisdiction under the Act
could only be exercised for the limited purpose of satisfying itself that the
decision of the Courts below was according to law. So long as the finding of
the Courts below was not perverse or erroneous the High Court cannot, on a
reappraisal of the evidence, substitute its own finding for the one reached by
the Courts below. [157 E-F] In dealing with the question of comparative hardship
the Court is only concerned with the hardship of the landlord and the tenant
but not of a complete stranger. [157 F-G]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1006 of 1971 Appeal by special leave from the judgment and order dated the
23rd September, 1970 of the Gujarat High Court in C.R.A. Nos. 1295 of 1966, 49
and 50 of 1967.
S.K. Dholakia and R.C. Bhatia for the
Appellant.
M.V. Goswami for the Respondent.
The Judgment of the Court was delivered by
SEN, J. This appeal, by special leave from a judgment of the Gujarat High
Court, involves the question of comparative hardship under s. 13(2) of the
Bombay Rent, Hotel and Lodging House Rates Control Act, 1947-for brevity 'the
Act'. First as to the facts. The appellant-plaintiff is a merchant who settled
in Africa and was carrying on business in Kampala in 155 Uganda. Due to
political upheaval in that country, he along with his family migrated to India
in 1964 and began living in a rented house at Rajkot, where he owns a building
known as 'Trivedi House'. On September 21, 1964 he brought a suit for eviction
of the respondent-defendant, Laxmishanker Tribhoyan, from the suit premises,
which consists of a shop on the ground floor of the said building, on the
ground that he reasonably and bona fide required the suit premises for starting
his business. The defendant denied the claim and pleaded that the plaintiff did
not want to settle down at Rajkot and had already gone back to Africa and that,
in any event, even if the plaintiffs alleged need under s. 13(1) (g) of the Act
were proved, no decree for eviction could be passed because of comparative
hardship by reason of s. 13(2) of the Act. It was alleged that the defendant
was a man of slender means and had built up a good-will by running his business
from the suit premises over the years and he would be put to greater hardship
as it would disrupt his business if he were evicted there from.
The court of first instance as well as the
District Judge in appeal upheld the plaintiff's claim under s. 13(1) (g) of the
Act and decreed the suit. In revision, the High Court held that the finding of
the courts below as to the plaintiff's need to be reasonable and bona fide
being a finding of fact could not be interfered with under s. 29(2) of the Act,
but non-suited the plaintiff's on the ground of comparative hardship under s.
13(2) of the Act. As regards comparative hardship, both the courts below held
that the defendant was not in actual possession of the suit premises, but had
inducted one Labhshanker as his licensee, who was in occupation thereof, and,
therefore, question of hardship under s. 13(2) of the Act did not arise. They
further held that the licensee, Labhshanker, owned a separate shop of his own
from where he was carrying on his business and had taken the suit premises from
the defendant for using it as a godown and, therefore, there was no question of
any hardship to him as he would be put to the inconvenience of shifting his
goods to his own shop. The High Court, however, differed from the courts below
and held that the defendant would be put to greater hardship. In coming to that
conclusion, the High Court observes: "Although the defendant Laxmishankar
Tribhoyan was not in actual occupation of the shop, the aforesaid Labhshanker
was running the business on his behalf and paying the defendant a fixed amount
of maintenance because he was aged and infirm and also because he was his uncle
and, therefore, if we were to confirm the decree for eviction of the courts
below, the defendant would be deprived 156 of his only source of livelihood for
he was dependent on Labhshanker who was running his business from the suit
premises." As regards the plaintiff, the High Court was pleased to
observe: "Now so far as the plaintiff is concerned, he has his one leg in
Rajkot and another in Africa. Therefore, there is still uncertainty of his
settling down in Rajkot." In that view of the matter it held that no
decree for eviction under s. 13(1) (g) of the Act can be passed and accordingly
reversed the decree of the courts below:
Section 13(2) of the Act reads as follows:
13(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, great 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.
It is plain upon the language of s. 13(2) of
the Act that it creates a further fetter on the power of the courts to pass a
decree for eviction once it held in favour of the plaintiff on the issue of
reasonable and bona fide requirement under s. 13(1) (g) of the Act. The words
"No decree for eviction shall be passed" make it incumbent on the
court not to pass a decree on the ground specified under s. 13(1) (g) of the
Act unless it is satisfied as to the comparative hardship caused to the
landlord and the tenant by passing a decree than by refusing it. In dealing
with the question, the court is only concerned with the hardship of the
landlord and the tenant and not to a complete stranger.
Under s. 13(2) of the Act, if there is
greater hardship to the tenant, the court should refrain from making an order
for eviction under s. 13(1) (g) of the Act. On the other hand, if the making of
an order of eviction under s. 13(1) (g) of the Act would cause no such
hardship, the court has no jurisdiction but to pass such an order.
The Legislature by enacting s. 13(2) of the
Act seeks to strike a just balance between the landlord and the tenant so that
the order of eviction under s. 13(1) (g) of the Act does not cause any hardship
157 to either side. The considerations that weigh in striking a just balance
between the landlord and the tenant were indicated in a series of decisions of
the Court of Appeal, interpreting an analogous provision of the Rent and
Mortgage Interest Restrictions (Amendment) Act, 1933 (c. 32), s. 3(1), Sched.
I, para (h): Sims v. Wilson, Fowle v. Bell, Smith v. Penny, Chandler v.
Strevett and Kelly v. Goodwin.
One of the most important factors in
considering the question of greater hardship is whether other reasonable
accommodation is available to the landlord or the tenant.
The court would have to put in the scale
other circumstances which would tilt the balance of hardship on either side,
including financial means available to them for securing alternative
accommodation either by purchase or by hiring one, the nature and extent of the
business or other requirement of residential accommodation, as the case may be.
It must, however, be observed that the existence of alternative accommodation
on both sides is an important but not a decisive factors. On the issue of
greater hardship the English courts have uniformly laid down that the burden of
proof is on the tenant. We are inclined to the view that on the terms of s.
13(2) of the Act, the decision cannot turn on mere burden of proof, but both
the parties must lead evidence. The question whether or not there would be
greater hardship caused to the tenant by passing the decree must necessarily
depend on facts and circumstances of each case.
Under s. 29(2) of the Act as substituted by
Gujarat Act 18 of 1965, although the High Court has a wider jurisdiction than
the one exercisable under s. 115 of the Code of Civil Procedure, 1908, its
revisional jurisdiction could only be exercised for a limited purpose with a
view to satisfying itself that the decision was according to law. It cannot be
said that the courts below failed to apply their mind to the requirements of s.
13(2) of the Act as to comparative hardship or their finding was manifestly
perverse or erroneous. That being so, the High Court could not substitute its
own finding for the one reached by the courts below on a reappraisal of the
evidence.
It is indeed difficult to appreciate the line
of reasoning adopted by the High-Court in non-suiting the plaintiff. On the 158
admitted facts, the plaintiff is a displaced person from Africa and was
carrying on business in Kampala in Uganda.
Due to political upheaval in that country, in
1964 he, along with his family, migrated to India and began living in a rented
house in Rajkot. He proved that he reasonably and bona fide required the suit
premises under s. 13(1) (g) of the Act. Admittedly, he has the requisite
experience and wherewithal to carry on business, as it is on record that he has
been carrying on business in Kampala for over 30 years.
The mere fact that the plaintiff had gone
back to Uganda for winding up his business there, is not a circumstance against
him. On the contrary, it was indicative of his intention to start his business
from the suit premises. As against this, the defendant was not in actual
possession of the suit premises but had placed one Labhshanker in occupation
thereof who had a separate shop of his own and using the suit premises as a
godown. Merely because the defendant who was aged and infirm and Labhshanker as
his licensee and under an arrangement was paying a fixed amount to the
defendant by way of maintenance did not imply that the passing of a decree
under s. 13(1) (g) of the Act would cause greater hardship to the defendant
than to the plaintiff. Further, the High Court failed to appreciate that
perhaps old age and infirmity night have been relevant considerations in
judging the issue of greater hardship under s. 13(2) of the Act if the
defendant were himself to carry on business from the suit premises and not
where, as here, he had admittedly parted with possession in favour of a
stranger. It was clearly in error in spelling out a new case for the defendant
of the so-called arrangement between himself and a stranger, Labhshanker, for
which there is no foundation in the pleadings and which could not in law be
pleaded in answer to the plaintiff's claim under s. 13(1)(g) of the Act. That
apart, during the pendency of the appeal, the defendant Laxmishanker Tribhoyan
having died, the question of greater hardship under s. 13(2) of the Act does
not arise.
For all these reasons, the judgment and order
of the Gujarat High Court are set aside and the judgment and decree passed by
the courts below decreeing the plaintiff's suit for eviction under s. 13(1) (g)
of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, are
restored with costs throughout.
P.B.R Appeal allowed.
Back
