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PETITIONER: BHAICHAND RATANSHI

       Vs.

RESPONDENT: LAXMISHANKER TRIBHOYAN

DATE OF JUDGMENT29/07/1981

BENCH: REDDY, O. CHINNAPPA (J) BENCH: 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

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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]

JUDGMENT:      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

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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  plaintiff’s 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 therefrom.      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

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    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

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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. 159