REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 8067 OF 2004

SHAMSHAD AHMAD & ORS. … APPELLANTS

VERSUS

TILAK RAJ BAJAJ (DECEASED) THROUGH LRs. & ORS. … RESPONDENTS

J U D G M E N T C.K. THAKKER, J.

1. The  present  appeal  is  filed  by  the

landlords against the judgment and order passed

by the High Court of Uttaranchal on September

28, 2002 in Writ Petition No. 2067 (M/S) of

2001. By the impugned order, a Single Judge of

the High Court of Uttaranchal reversed an order

of eviction passed by the Additional District

Judge  III  (FTC),  Dehradun  (Appellate

Authority), dated May 25, 2001 in Rent Control

Appeal No. 165 of 1995 and restored the order

passed  by  the  Prescribed  Authority  (First

Additional  Civil  Judge,  Senior  Division),

Dehradun dated November 18, 1995 in P.A. Case

No. 53 of 1989 by which the application of the

landlords  for  eviction  of  respondent-tenant

came to be dismissed.

2. For  appreciating  the  controversy  in

the present appeal, few relevant facts may be

noted.

3. The  appellants  are  landlords  having

Shop No.2 in Building No. 43 situated on Gandhi

Road in the city of Dehradun. The respondents

are heirs of one Prakash Chand. Initially, the

property  was  let  out  to  Prakash  Chand,

grandfather of the respondents who are heirs

and  legal  representatives  of  said  Prakash

Chand. The tenancy was created in 1956 at a

monthly rent of Rs.18.75 paise per month which

was subsequently raised to Rs.25.50 paise.

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4. It appears that the landlords served

notice  on  October  3,  1988  to  the  tenant

terminating his tenancy. A suit for possession

was thereafter instituted being Eviction Suit

No. 4 of 1989 titled Shamshad Ahmad & Ors. v.

Prakash  Chand  in  the  Small  Causes  Court,

Dehradun and the matter was sub-judice. During

the pendency of the suit, landlords made an

application to the Prescribed Authority under

Section 21(1)(a) of the U.P. Urban Buildings

(Regulation of Letting, Rent and Eviction) Act,

1972 (hereinafter referred to as ‘the Act’) for

possession of the suit shop on the ground that

the landlords required the shop bona fide for

carrying on business by Matloob Ahmad, husband

of Smt. Kishwar Ahmad-applicant No.6 with Kum.

Faraha Matloob, daughter of Smt. Kishwar Ahmad

and  Matloob  Ahmad  for  running  business  in

readymade garments.

5. It was the case of the landlords that

Matloob Ahmad, husband of Smt. Kishwar Ahmad

who was working in C.D. Account Service, was

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due to retire within a short period. He had no

any other business of his own. Smt. Kishwar

Ahmad, therefore, wanted to get possession of

suit shop so that her husband Matloob Ahmad

could carry on business in readymade garments

with her daughter Kum. Faraha Matloob.

6. The  tenant  Prakash  Chand  filed  a

written  statement  controverting  the  facts

stated and averments made in the application

and contested the claim of the landlords. It

was  stated  that  landlords  were  having  huge

property in Dehradun. They were enjoying high

status and were a ‘reputed family’ in the city.

They  were  very  rich  and  having  business  in

timber wood. They did not require the shop for

doing business in readymade garments. Matloob

Ahmad was in Government service and had not

retired. It was also contended that even after

retirement,  he  would  not  do  business  in

readymade garments. Neither Matloob Ahmad nor

Kum. Faraha Matloob had any experience in the

business  of  readymade  garments  and  on  that

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ground also, the claim was not well founded.

Moreover,  both  Smt.  Kishwar  Ahmad  and  Kum.

Faraha Matloob were pardanasin ladies. For that

reason also, they could not come in public and

could not do any business. The application was

filed  only  with  a  view  to  get  the  tenant

evicted. Moreover, one suit which had already

been instituted for getting possession on the

ground  that  the  property  was  in  dilapidated

condition  and  was  required  repairing,  was

pending and hence an application under Section

21  of  the  Act  was  not  maintainable.  It  was

stated that the tenant was very poor having a

grocery shop. He was doing business since last

about forty years. The income from the grocery

shop run by the tenant from the suit shop was

the only means of income for the entire family

consisting of nine members. If eviction order

is  passed  against  the  tenant,  he  would  be

deprived  of  livelihood  and  his  family  would

starve. It was, therefore, submitted that the

application was liable to be dismissed.

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7. The Prescribed Authority, on the basis

of the pleadings of the parties, considered the

rival claims and perused the evidence led by

both the sides. As far as maintainability of

the application is concerned, it was held that

such application was tenable. The ground put

forward  by  the  landlords  in  the  application

under  Section  21  was  totally  different,

distinct and independent of the suit filed by

the landlords earlier and hence the application

was not liable to be dismissed on that ground.

It was also held that it could not be contended

that pardanasin lady/ladies cannot do business.

No such provision of law was brought to the

notice of the Prescribed Authority so as to

compel the Authority to dismiss the application

on that count. Hence, even that ground also was

not  well  founded  for  dismissing  the

application.

8. The Authority, however, observed that

neither Matloob Ahmad nor Kum. Faraha Matloob

had  any  experience  in  doing  business  in

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readymade  garments. The  Authority noted  that

Kum. Faraha had obtained B.A. degree but she

had no experience in readymade garments. Nor

Matloob Ahmad who was to retire, had any such

expertise. The Authority, therefore, held that

in  absence  of  such  experience,  requirement

pleaded by the landlords could not be said to

be bona fide or genuine. The Authority also

held  that  if  the  landlords  wanted  to  do

business  in  readymade  garments,  they  would

require an office room. They would also require

sufficient space for preparation of readymade

garments and godown for export of garments. In

absence of such accommodation, it could not be

said that the requirement was bona fide. The

Authority proceeded to observe that family of

the landlords was reputed family having high

status in the society and they were living in

high standard, doing business in timber wood

and  enjoying  facilities  of  car,  scooter,

telephone,  etc.  It,  therefore,  could  not  be

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said  that  they  were  interested  in  doing

business in readymade garments.

9. On  the other hand, according to the

Authority, tenant was in possession of the shop

since about forty years wherein he was doing

business in grocery articles. The entire family

of the tenant was earning livelihood from the

income of the said shop. Hence, even on the

ground  of  comparative  hardship,  it  was  the

tenant who would suffer greater hardship than

the landlords. In view of the above findings,

the  Prescribed  Authority  dismissed  the

application for eviction of the tenant.

10. Being aggrieved by the order passed by

the  Prescribed  Authority,  the  landlords

preferred  an  appeal  before  the  appellate

authority.  The Additional  District Judge  who

heard  the  appeal,  again  appreciated  the

evidence on record. The learned Judge held that

the  Prescribed  Authority  had  rejected  the

application on ‘flimsy’ ground. The Authority

did not appreciate the evidence on record in

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its proper perspective. The learned Judge noted

that Matloob Ahmad, husband of applicant No.6

had already retired from service on December

31,  1993  after  office  hours.  Obviously,

therefore, applicant No.6 was right in praying

for  possession  of  shop  for  bona  fide

requirement of her husband as he was to do work

and  was  not  doing  any  other  business.  The

learned  Judge  also  noted  that  for  doing

business in readymade garments, no ‘expertise’

was necessary and the Prescribed Authority was

wholly  wrong  in  rejecting  the  claim  of  the

applicants on the ground that Matloob Ahmad was

not ‘expert’ in the said business. The learned

Judge also noted that by the time the matter

came up for hearing, Kum. Faraha Matloob who

had acquired B.A. degree, had also obtained Law

degree  and  had  become  an  advocate.  She  was

practising in Civil Court at Dehradun and she

was  in  need  of  an  office  room.  The  lower

appellate  Court,  therefore,  held  that  the

requirement of landlords of the suit shop was

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bona fide. A part of it was required for the

purpose of doing business in readymade garments

by Matloob Ahmad, husband of applicant No.6 and

a  part  of  it  was  required  by  Kum.  Faraha

Matloob for running an office as an advocate.

According  to the  appellate Court,  therefore,

bona  fide  requirement  of  the  landlords  was

proved.

11. Regarding  comparative  hardship,  the

appellate  Court  noted  that  no  attempt

whatsoever  had  been  made  by  the  tenant  for

getting alternative accommodation and hence it

could not be said that if the order of eviction

would be passed and application of landlords

would  be  allowed,  greater  hardship  would  be

caused  to  the  tenant.  Accordingly,  an  order

passed  by  the  Prescribed  Authority  was  set

aside and direction for eviction of tenant was

issued.

12. The said order was challenged by the

tenant by filing a writ petition in the High

Court of Uttaranchal under Articles 226 and 227

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of the Constitution. A Single Judge of the High

Court,  by  a  brief  order,  allowed  the  writ

petition,  set  aside  the  decision  of  the

appellate  authority  and  dismissed  the

application filed by the landlords. The said

order is challenged by the landlords in the

present proceedings.

13. On  November  22,  2004,  leave  was

granted and final hearing of the appeal was

fixed in the year 2005. The matter, however,

could not be heard. An application for early

hearing  was  filed  by  the  appellants  and  on

March  28,  2008,  the  Bench  presided  over  by

Hon’ble the Chief Justice of India directed the

Registry to place the matter for final hearing

in summer vacation. That is how the matter was

placed before us.

14. We  have  heard  learned  advocates  for

the parties.

15. The learned counsel for the appellants

strenuously contended that the High Court was

wholly wrong in interfering with findings of

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fact recorded by the appellate Court. According

to the counsel, the High Court was exercising

jurisdiction  under  Article  226/227  of  the

Constitution and it was not open to the Court

to  enter  into  questions  of  fact  or  mixed

questions of law and fact. After appreciating

the  evidence  on  record,  the  appellate  Court

held that bona fide requirement of landlords

was  proved.  A  finding  was  recorded  that  no

greater hardship would be caused to the tenant

if an order of eviction would be passed against

the tenant. The findings were findings of fact

and they ought to have been accepted by a writ

Court as final.

16. The counsel also contended that even

though Kum. Faraha was selected and appointed

in Judiciary, bona fide requirement of Matloob

Ahmad,  husband  of  applicant  No.6,  who  had

retired in 1993 remained for running business

in  readymade  garments.  A  clear  cut  and

unequivocal  finding  was  recorded  by  the

appellate authority that the said requirement

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was  proved.  Not  only  the  High  Court  had  no

jurisdiction  to  interfere  with  the  said

finding, in fact, the said finding has not been

disturbed. Once the finding in favour of the

landlords had been recorded, it could not be

said that the requirement of the landlords was

not bona fide.

17. As  to  comparative  hardship,  the

appellate  authority expressly  stated that  no

attempt whatsoever had been made by the tenant

from which it can be shown that there was an

attempt by him to get alternative accommodation

but he could not get such accommodation. On the

contrary, according to the counsel, the tenant

had left Dehradun and settled down in Delhi.

18. The  counsel  also  submitted  that

crucial  date  for  the  purpose  of  deciding

requirement  of  the  landlord  is  the  date  of

institution of suit or proceeding and not the

date when final order is passed by a Court or

Authority. In the present case, the date on

which an application under Section 21 of the

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Act was filed, the landlords needed the shop

for  bona fide  requirement. Subsequent  events

could not deprive them from getting possession

of the suit shop.

19. On all these grounds, it was submitted

that  the  order  passed  by  the  High  Court

deserves to be set aside by restoring the order

of the appellant authority and by confirming

the  order  of  possession  granted  by  the

Additional District Judge, Dehradun.

20. The learned counsel for the tenant, on

the other hand, supported the order passed by

the  High  Court.  He  submitted  that  when  the

Prescribed Authority dismissed the application

filed  by  the  landlords  and  the  appellate

authority  allowed such  application, the  High

Court was fully justified in entering into the

findings recorded by the appellate authority.

21. He  also  submitted  that  subsequent

events were required to be considered. In view

of the fact that Kum. Farah was selected by the

Public Service Commission and was appointed as

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a  Judge,  the  so  called  requirement  as  a

practising advocate and having an office for

that  purpose  did  not  survive.  The  said

development  was a  relevant consideration  and

the High Court was right in setting aside the

order  of  eviction.  Even  otherwise,  as  per

settled  law,  the  need  and  necessity  of  the

landlord  for  getting  possession  of  properly

must continue to remain till the proceedings

are finalized.

22. The trail Court, submitted the learned

counsel, was right in observing that neither

Matloob Ahmad nor Kum. Faraha had experience in

business in readymade garments and in absence

of expertise, no order of eviction could be

passed  against  the  tenant.  According  to  the

counsel, the tenant is in possession of the

shop since last fifty years. It was true that

the tenant had shifted from Dehradun to Delhi

but it was really of a temporary nature. In no

way, it would suggest that the tenant was not

in need of the shop or that he had permanently

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shifted  to  any  other  place.  In  fact,  the

business is going on in the suit-shop.

23. The  counsel  also  submitted  that  the

Prescribed  Authority  was  right  in  observing

that the landlords belonged to high strata of

society having business in timber wood. Even in

early  1990s,  they  were  having  facilities  of

car, scooter, telephone, etc. Obviously, they

would not do business in readymade garments.

24. The  counsel  urged  that  taking  into

consideration all these facts, the Prescribed

Authority refused to make an order of eviction

against the tenant. The said finding ought not

to have been disturbed by the appellate Court

and the High Court was, therefore, compelled to

interfere  with  the  order  passed  by  the

appellate  authority.  It  was,  therefore,

submitted  that  the  appeal  deserves  to  be

dismissed.

25. Having heard learned counsel for the

parties, in our opinion, the appeal deserves to

be allowed.

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26. So far as the larger question, namely,

whether  subsequent  events  can  be  taken  into

consideration  by an  appellate, revisional  or

writ Court, we express no opinion in view of

the fact that the appeal can be decided without

entering  into  the  said  controversy.  We  may,

however, note that learned counsel for both the

sides  referred  to  leading  decisions  of  this

Court. In some of the cases, the Court held

that the crucial date for deciding requirement

of a landlord is the date of institution of

suit/proceeding.  In  other  cases,  however,  a

contrary view has been taken. There is thus a

cleavage of opinion on that vexed issue. We

leave the matter there.

27. On  merits,  in  our  judgment,  the

submission  of  the  learned  counsel  for  the

appellants is well founded that the Prescribed

Authority  was  wrong  in  dismissing  the

application  filed  by  the  landlords.  We  had

already observed that the Prescribed Authority

negatived the contention of the tenant that the

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application  was  not  maintainable.  It,

therefore,  entered  into  the  merits  of  the

matter and decided it against the landlords. It

observed  that  applicant  No.6  hailed  from  “a

reputed family of Dehradun” and “they had a

very  big  business  of  timber  wood”.  It  also

noted that applicant No.6 had been enjoying the

facilities of car, scooter, telephone, etc.

28. In our opinion, the grievance voiced

by the learned counsel for the appellants is

well founded that the above grounds and reasons

were irrelevant and extraneous so far as the

requirement of the landlords was concerned. The

authority  can undoubtedly  decide whether  the

need or requirement of landlords was or was not

bona fide. It can record a finding against the

landlords if such requirement is not proved.

But the authority cannot decline the prayer of

the landlords on the ground that they belonged

to  upper  class  society  having  facilities  of

car, etc. Similarly, the Prescribed Authority

was wrong in commenting on the experience of

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the  landlords  in  business  of  readymade

garments. Again, the authority went wrong in

stating that if the applicants wanted to do

business in readymade garments, they needed ‘an

office’ and place of godown for preparation of

readymade garments to be exported.

29. The complaint of the learned counsel

for the landlords is that the authority was

wholly wrong in holding that for doing business

in readymade garments, there must be need and

necessity of office or place for preparation of

garments or godown. It was equally wrong in

coming to the conclusion that for such business

‘technical  education’  was  necessary.  The

appellant  authority,  therefore,  rightly  set

aside the said finding describing the ground

weighed with the authority as ‘flimsy’.

30. The  counsel  is  also  right  in

submitting that admittedly, Matloob Ahmad had

retired from service. Even if the tenant was

right in submitting that the landlords belonged

to a higher strata of society, it did not mean

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that all throughout his life after retirement,

Matloob Ahmad, husband of applicant No.6 should

not do any work. If he wanted to get himself

engaged in doing some business, it could not be

held  that  he  would  not  be  entitled  to

possession of property for doing business since

he  was  rich  and  even  without  doing  any

business, he could maintain himself. A finding

as to bona fide requirement for doing readymade

business by Matloob Ahmad has been expressly

recorded by the appellant authority. The said

finding was a finding of fact. Neither it could

have been interfered with, nor it has been set

aside by the writ court. In view of the above

position, the High Court was wrong in allowing

the writ petition.

31. As observed earlier, statutory remedy

has  been  provided  under  the  Act  against  an

order  passed  by  the  Prescribed  Authority  by

filing  an  appeal  before  the  District  Judge

(Section 22). There is no further remedy under

the  Act.  The  tenant,  in  the  circumstances,

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approached the High Court by filing a petition

under Articles 226 and 227 of the Constitution.

32.  Though powers of a High Court under

Articles  226  and  227  are  very  wide  and

extensive  over  all  Courts  and  Tribunals

throughout the territories in relation to which

it exercises jurisdiction, such powers must be

exercised within the limits of law. The power

is supervisory in nature. The High Court does

not act as a Court of Appeal or a Court of

Error. It can neither review nor reappreciate,

nor  reweigh  the  evidence  upon  which

determination  of  a  subordinate  Court  or

inferior Tribunal purports to be based or to

correct errors of fact or even of law and to

substitute its own decision for that of the

inferior  Court  or  Tribunal.  The  powers  are

required  to  be  exercised  most  sparingly  and

only in appropriate cases in order to keep the

subordinate  Courts  and  inferior  Tribunals

within the limits of law.

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33. In  Chundavarkar  Sita  Ratna  Rao  v.

Ashalata S. Guram, (1986) 4 SCC 447, this Court

stated;      “Unless  there  was  any  grave miscarriage  of  justice  or  flagrant violation  of  law  calling  for intervention it was not for the High Court  under Articles 226 and 227 of the  Constitution  to  interfere.  If there is evidence on record on which a finding can be arrived at and if the court  has  not  misdirected  itself either  on  law  or  on  fact,  then  in exercise  of  the  power  under  Article 226  or  Article  227  of  the Constitution,  the  High  Court  should refrain  from  interfering  with  such findings  made  by  the  appropriate authorities”.

34. Even  prior  to  Chundavarkar,  in

Babhutmal Raichand Oswal v. Laxmibai R. Tarta

&  Anr.,  (1975)  1  SCC  858,  dealing  with

supervisory power of a High Court under Article

227 of the Constitution, Bhagwati, J. (as His

Lordship then was) stated;

   “If an error of fact, even though apparent  on the face of the record, cannot be corrected by means of a writ of  certiorari  it  should  follow  a fortiori that  it  is  not  subject  to correction  by the High Court in the

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exercise  of  its  jurisdiction  under Article  227.  The  power  of superintendence  under  Article  227 cannot be invoked to correct an error of  fact which only a superior court can  do in exercise of its statutory power as a court of appeal.  The High Court  cannot  in  guise  of  exercising its  jurisdiction  under  Article  227 convert itself into a court of appeal when the legislature has not conferred a  right  of  appeal  and  made  the decision of the subordinate court or tribunal final on facts”.

 (emphasis supplied)

35. In  State  of  Maharashtra  v.  Milind,

(2001) 1 SCC 4, this Court observed;

    “The power of the High Court under Article 227 of the Constitution of India, while exercising the power of judicial review against an order of inferior  Tribunal  being  supervisory and  not  appellate,  the  High  Court would be justified in interfering with the conclusion of the Tribunal, only when  it  records  a  finding  that  the inferior  Tribunal’s  conclusion  is based  upon  exclusion  of  some admissible  evidence  or  consideration of some inadmissible evidence or the inferior Tribunal has no jurisdiction at all or that the finding is such, which no reasonable man could arrive at, on the materials on record”.

36. In  State v.  Navjot Sandhu,  (2003) 6

SCC 641, this Court reiterated;

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     “Thus the law is that Article 227 of the Constitution of India gives the  High  Court  the  power  of superintendence  over  all  courts  and tribunals  throughout  the  territories in  relation  to  which  it  exercises jurisdiction. This jurisdiction cannot be limited or fettered by any Act of the State Legislature. The supervisory jurisdiction  extends  to  keeping  the subordinate  tribunals  within  the limits  of  their  authority  and  to seeing  that  they  obey  the  law.  The powers under Article 227 are wide and can  be  used,  to  meet  the  ends  of justice. They can be used to interfere even  with  an  interlocutory  order. However the power under Article 227 is a  discretionary  power  and  it  is difficult to attribute to an order of the  High  Court,  such  a  source  of power, when the High Court itself does not in terms purport to exercise any such  discretionary  power.  It  is settled  law  that  this  power  of judicial  superintendence,  under Article  227,  must  be  exercised sparingly and only to keep subordinate courts and tribunals within the bounds of their authority and not to correct mere  errors.  Further,  where  the statute  bans  the  exercise  of revisional  powers  it  would  require very  exceptional  circumstances  to warrant interference under Article 227 of the Constitution of India since the power of superintendence was not meant to  circumvent  statutory  law.  It  is settled  law  that  the  jurisdiction under  Article  227  could  not  be exercised ‘as the cloak of an appeal in disguise’.”    (emphasis supplied)

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37. While dealing with petitions under the

present statute, the above principles have been

followed.

38. In  Om Prakash & Ors. v. Sunhari Devi

(Smt.)  &  Ors.,  (1993)  2  SCC  397,  a  similar

question came up for consideration before this

Court. There an application under Section 21

((1)(a) of the present Act was filed by the

landlords  against  the  tenants  on  the  ground

that  they  bona  fide  required  the  tenanted

premises,  a  shop,  for  their  own  use. The

Prescribed  Authority  dismissed  the  eviction

petition  holding  that  the  applicants’

requirement  was  not  bona  fide  and  greater

hardship would be caused to the tenants than to

the landlords. The landlords filed an appeal

and the appellate authority allowed the same

holding that the requirement of the landlords

was genuine and bona fide. It also recorded a

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finding  in  favour  of  the  landlords  on  the

question of comparative hardship.

39. The  High  Court  of  Allahabad  in  a

petition by the tenants, set aside the finding

recorded  by  the  appellate  authority  and

dismissed the eviction application. Aggrieved

landlords approached this Court.

40. Allowing the appeal, setting aside the

order passed by the High Court and restoring

that  of  the  appellate  authority,  this  Court

held that even in second appeal, the High Court

should restrict itself to question of law. It

was all the more so, in a writ petition. When

findings  were  recorded  by  the  appellate

authority,  the  High  Court  was  wrong  in

interfering  with  the  said  findings  and  in

setting aside the order of eviction, observed

this Court.

41. In  Ranjeet  Singh  v.  Ravi  Prakash,

(2004)  3  SCC  682,  again  this  Court  while

interpreting  the  provisions  of  the  Act  in

question,  held  that  the  High  Court,  while

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exercising powers under Articles 226 and 227 of

the Constitution, cannot act like an appellate

Court  and  re-appreciate  or  revaluate  the

evidence  while  exercising  certiorari  or

supervisory jurisdiction. Only a patent error

which did not require establishment by lengthy

and  complicated  arguments  or  by  long  drawn

process of reasoning is amenable to certiorari

jurisdiction. If two opinions were reasonably

possible, the finding arrived at one way or the

other  by  the  appellate  authority,  cannot  be

disturbed. 42. In  Mst.  Bega  Begum  &  Ors.  v.  Abdul

Ahad Khan (dead) by L.Rs. & Ors., (1979) 1 SCC

273, this Court held that rent control laws

must be construed reasonably. They should be

interpreted in such a way as to achieve the

object  of  enabling  landlord  to  evict  tenant

where the statute grants such right in favour

of landlord.

43. Dealing  with  the  Jammu  and  Kashmir

Houses and Shops Rent Control Act, 1966, the

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Court  observed  that  ‘reasonable  requirement’

undoubtedly postulates that there must be an

element of ‘need’ as opposed to a mere ‘desire’

or ‘wish’. The distinction between ‘desire’ and

‘need’ should doubtless be kept in mind. That

does not, however, mean that even a genuine

need should be treated as nothing more than a

desire or wish. The connotation ‘need’ or the

word ‘requirement’ should not be artificially

expanded nor its language so unduly stretched

or  strained  as  to  make  it  impossible  or

extremely difficult for the landlord to get a

decree  for eviction.  Such construction  would

defeat  the  very  purpose  of  the  Act,  which

affords facility of eviction of the tenant to

the landlord on certain specified grounds.

44. In  the  case  on  hand,  a  finding  had

been recorded by the appellate authority that

requirement of the landlords for doing business

by Matloob Ahmad, husband of applicant No.6 was

bona fide and genuine. Thus, the requirement of

the landlords was established. The said finding

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stands  today.  The  High  Court  by  a  cryptic

order,  without  disturbing  the  said  finding

which was based on appreciation of evidence,

set aside the order of eviction against the

tenant,  inter  alia,  observing  that  Matloob

Ahmad was a ‘retired person’ and was getting

pension  and  was  living  in  his  village  at  a

distance of five kilometers from Dehradun. It

is no doubt true that the tenancy was created

before about fifty years but that should not be

a ground for depriving the landlord for doing

business if the requirement of the landlord is

bona fide and reasonable.

45. The learned counsel for the landlords

also  stated  that  in  May  2001,  the  order  of

eviction was passed by the Additional District

Judge,  Dehradun  and  the  appeal  was  allowed.

When  the  said  order  was  challenged  by  the

tenant in the High Court, the High Court asked

the tenant to inform the Court as to when they

would vacate the premises.

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46. The order passed by the High Court on

August 24, 2001 reads as under;

“Put up on 7-9-2001.  On that day the  petitioners  shall  inform  this Court  as  to  when  they  are  going  to vacate the premises.”

47. Finally,  however,  the  petition  was

allowed by the same Judge, the order passed by

the appellate authority was set aside and the

application  filed  by  the  landlords  for

possession of property was dismissed.

48. Regarding  comparative  hardship,

nothing has been stated by the tenant as to

whether any attempt has been made by him to get

alternative accommodation and he failed to get

such  accommodation. In  the circumstances,  in

our opinion, the appellate authority was right

in observing that there was no evidence to show

that no shop was available to the tenant. It is

quite  possible,  as  noted  by  the  appellate

authority, that the tenant might have to pay

more  rent.  But  that  would  not  preclude  the

landlords from getting possession of the suit-

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shop once they had proved genuine need of the

property.

49. It was also submitted by the learned

counsel for the landlords that the tenant is

not  using  the  suit  shop  and  has  shifted  to

Delhi. In a counter affidavit filed by Sudhir

Kumar Bajaj in this Court on November 3, 2004,

the  deponent  has  mentioned  his  address  as

resident  of 126,  Dhamawala, Dehradun  “having

temporarily  come  down  to  Delhi”.  In  the

affidavit in rejoinder, applicant No.2 stated

that Sudhir Kumar Bajaj is permanently residing

in Delhi since last more than one year. The

rejoinder was filed on 16th November, 2004. It

is further stated that the premises in dispute

is vacant and is locked.

50. In view of the facts and circumstances

in their entirety and on the findings recorded

by  the  appellant  authority,  we  have  no

hesitation in holding that the High Court was

not right in interfering with the order passed

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by the appellate authority and in dismissing

the  application  of  the  landlords.  The  said

order, therefore, deserves to be set aside and

we do accordingly.

51. For the foregoing reasons, the appeal

is allowed. The order passed by the High Court

is set aside and the order of eviction recorded

by the appellant authority and the Additional

District  Judge  III  on  25th May,  2001  is

restored.

52. The  learned  counsel  for  the

tenants, at this stage, prayed for grant of

time to vacate the suit shop stating that the

tenant is doing business in the suit shop and

if he is evicted immediately, enormous hardship

would be caused to him. Prima facie, in our

opinion, the learned counsel for the landlords

is right in submitting that the tenant is not

using  the  property.  But  on  overall

considerations, we are of the view that ends of

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justice  would  be  met  if  we  grant  time  upto

March 31, 2009 on usual undertaking being filed

by  the  respondents  herein.  Such  undertaking

shall be filed on affidavit within a period of

four weeks from today, a copy of which should

be  given  to  the  learned  counsel  for  the

appellants.

53. The appeal is allowed accordingly. On

the facts and in the circumstances of the case,

however, there shall be no order as to costs.

……………………………………………………………J. (C.K. THAKKER)

NEW DELHI, ……………………………………………………………J. September 11, 2008. (LOKESHWAR SINGH PANTA)

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