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Kisanrao Madhavrao Bartakke Vs. Narayan Dhondi Shete - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpl. Civil Appln. No. 2618 of 1977
Judge
Reported inAIR1979Bom74; (1978)80BOMLR676; 1978MhLJ859
ActsBombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 13, 13(1), 13(2) and 15; Deccan Agriculturists Relief Act; Jammu and Kashmir Houses and Shops Rent Control Act, 1966 - Sections 11(1); Constitution of India - Article 227; Transfer of Property Act - Sections 13(1)
AppellantKisanrao Madhavrao Bartakke
RespondentNarayan Dhondi Shete
Appellant AdvocateBhimrao N. Naik, Adv.
Respondent AdvocateJ.R. Lalit, Adv.
DispositionPetition dismissed
Excerpt:
bombay rents, hotel and lodging house rates control act (bom. lvii of 1947), section 13(1) (g) read with section 13(2) - whether even in the absence of pleadings in that regard it is obligatory upon the court to frame an issue in order to find out whether by passing a decree for partial eviction there will be no hardship either to the landlord or to the tenant as mentioned in sub-section (2) of section 13.;there is no statutory obligation to frame a particular issue covering the provisions of the second part of sub-section (2) of section 13 of the bombay rents, hotel and lodging house rates control act, 1947. on the contrary when the total circumstances of a case are being considered by the court in the light of the pleadings of the parties and the evidence led, it is enough if the court.....deshmukh, j.1. this is a writ petition under article 227 of the constitution filed by theoriginal tenant-defendant in a litigation arising under the provisions of the bombay rents, hotel and lodging home rates control act 1947 (hereinafter referred to as the 'rent act'). the learned single judge who heard this petition felt that there is an apparent conflict between the two judgments of learned single judges of this court with regard to the requirement of framing an issue under the latter part of sub-section (2) of section 13 of the rent act. hence by a reasoned order the learned judge referred the issue to a larger bench. however, since the matter appears to be a small one, the learned chief justice hag marked the entire petition for being disposed of by this bench. hence we have heard.....
Judgment:

Deshmukh, J.

1. This is a writ petition under Article 227 of the Constitution filed by theoriginal tenant-defendant in a litigation arising under the provisions of the Bombay Rents, Hotel and Lodging Home Rates Control Act 1947 (hereinafter referred to as the 'Rent Act'). The learned Single Judge who heard this petition felt that there is an apparent conflict between the two judgments of learned Single Judges of this Court with regard to the requirement of framing an issue under the latter part of Sub-section (2) of Section 13 of the Rent Act. Hence by a reasoned order the learned Judge referred the issue to a larger Bench. However, since the matter appears to be a small one, the learned Chief Justice hag marked the entire petition for being disposed of by this Bench. Hence we have heard the parties on the question referred to us as well as on the general merits of the petition. This is a usual litigation between a landlord and a tenant.

2. The tenanted premises are two rooms, one facing the road and consists of six khanas and one behind. They are situate in Subhash Peth at Akluj in Sholapur District. The petitioner has been a monthly tenant since about 1952 and is conducting his tailoring shop in the premises. The landlords terminated the tenancy by a notice dated 7-11-1970 and filed a suit for possession on 10-1-1971. Two grounds were alleged for claiming possession. One was that the defendant was a defaulter and had not made payment of rent. The other was bona fide requirement of the landlord for occupation, in that his elder son needed the premises for opening a new shop and a new business of his own in those premises. It was added that the son might go and stay in the premises for the purpose of doing the said business.

3. The petitioner-tenant filed a written statement and challenged all the allegations in the plaint. He also pleaded that even it the Court came to the conclusion that the need of the landlord was bona fide and genuine, greater hardship will be caused to him. The landlord had alternative accommodation and it was not necessary to hand over any part oi the premises to the landlord.

4. On these pleadings the parties went to the trial on the issues framed by the learned trial Judge. The relevant issues seem to be issue Nos. 3 and 4. They are as follows:

'(3) Does the plaintiff prove that he reasonably and bona fide requires the suit premises for his personal occupation and use?

(4) Will greater hardship be caused to the tenant defendant, if the decree is passed against him than to the plaintiff If it is refused?'

The finding on issue No. 3 is in the affirmative and the finding on issue No. 4 is 'No hardship to the tenant.'

5. The petitioner-tenant carried an appeal to the District Court wherein the relevant points for determination framed by the learned Second Extra Assistant Judge, Sholapur, were as follows:

'(1) Is it proved that the respondent-plaintiff requires the suit premises reasonably and bona fide for his own use and occupation?

(2) In whose favour the balance of convenience lies?'

The findings on point No. 1 is 'Yes' and on the second point 'in favour of the respondent-plaintiff'. The decree for eviction passed by the trial Court was thus confirmed by the Appellate Court. Being aggrieved by that decree, present writ petition has been filed by the tenant.

6. The Rent Act has been passed with a view to afford protection to tenants in urban areas due to the acute shortage of accommodation. This phenomenon of shortage of accommodation became acute in certain areas after the outbreak of hostilities of the second world war. In some areas of the erstwhile Bombay State rent control was introduced by an order in 1939 and by an Act 16 of 1939. The same was further revised and improved upon by substituting it by Act 7 of 1944-Thereafter the present Act No. LVII of 1947 came to be passed on 13th Feb. 1918 and the same Act with amendments from time to time is still in force in this State.

7. The primary purpose of this Act seems to be to deprive the landlord of his absolute right to terminate the tenancy and evict a tenant with or without any reason. That was the law before the passing of the Rent Control Act. On one side the Act is meant to prohibit landlord from evicting a tenant unless for certain specific purposes and on the other to protect tenant who is ready and willing to pay the rent and is observing the other conditions of tenancy. This is the total sweep of the Act. It does not create any particular rights in favour of the tenant or the landlord as such.

8. This being the background, ordinarily if a tenant is paying the standard rent and permitted increases from time to time and is otherwise observing the other conditions of tenancy, he should have no fear of being evicted by the landlord. There can be various grounds by which the landlord may require the premises either for his personal occupation or for repairs or remodelling etc. Section 18 Sub-section (1) takes care of the grounds onwhich a landlord is entitled to evict a tenant, if he proves one or more of the grounds before a Court o law. The provisions of Sub-section (1) of Section 13 open with a non-obstante clause notwithstanding anything contained in the Rent Act but subject to the provisions of Section 15. In spite of the fact that the tenant has a certain protection and the landlord is not entitled to recover possession merely at his volition the provisions of Section 13(1) lay down the grounds on which the landlord can evict a tenant.

9. We are concerned in this litigation with the provisions of Section 13(1)(g) read with Section 13(2). Under Section 13(1)(g) if the landlord requires the premises reasonably and bona fide for occupation by himself or by any person for whose benefit the premises ar' 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, the landlord can prove the grounds before the Court and obtain a decree in eviction. However, the provisions of Sub-section (2) which are relevant for the purposes of this petition are in the following words,---

'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 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.'

10. Even if the landlord proves his bona fide and reasonable need for occupation, it does not follow that a decree for eviction will be immediately passed by the Court. The first part of Sub-section (2) quoted above is in the nature of a further injunction upon a Court from passing a decree for eviction unless the satisfaction required by that sub-section is reached. The first part of Sub-section (2) quoted above, directs the Court not to pass a decree on the grounds specified in Clause (g) of Sub-section (1) if the Court is satisfied that having regard to ah1 the circumstances of the case including the question whether other reasonable accommodation is available for the landlord or tenant greater hardship would be caused by passing the decree than by refusing to pass it. In other words, a comparative hardship between the landlord and the tenant is to be found out and conclusion must be reachedthat the hardship will be greater on the landlord, if no decree is passed. When such satisfaction is reached a decree should follow. If, however, a finding is reached that in spite of the need of the landlord being bona fide the hardship will be greater upon the tenant a decree for eviction is to be refused.

11. The Legislature further felt that there can be certain cases where the premises let out could be in excess of the legitimate needs of a tenant and they are otherwise divisible. The Court may find that in a given case after dividing the premises in such manner the need of the landlord can be satisfied and if such a course is adopted there will be neither hardship upon the landlord nor upon the tenant and the requirement of both the parties would be satisfied bearing in mind the fact that there is acute shortage of accommodation. The legislature therefore thought that a provision should be further made by which the Court will be called upon to consider the possibility of dividing the premises, where it is practical to do so and where the division leads to a situation where no hardship would be caused either to the tenant or to the landlord by passing a decree of that type.

12. There is not much difficulty in following this scheme of the Rent Act as enacted by the Legislature. Present reference has become necessary because, according to the learned Single Judge, there are two judgments delivered by two learned Single Judges which are in apparent conflict with each other. The question is as to what is the nature of the second part of Sub-section (2) of Section 13 quoted above. Is the matter contained in it such which compels the court to frame statutorily an issue about the contents thereof, where the parties actually pleaded in that behalf or not. The learned Single Judge feels that one reported judgment takes the view that it is not necessary to frame an issue and that it is not a statutory obligation on the court to frame an issue with regard to that provision of second part of Sub-section (2) of Section 13. The other judgment which is the latest judgment takes a contrary view. The learned Single Judge therefore felt that it would not be proper for him either to follow one or the other of the judgments and it is better that the larger Bench resolves this difference of opinion.

13. In P.A. Machiah v. Champaklal Nagin-das, (1975) 77 BomLR 99 Deshpande, J. took the view that it is not a statutory obligation of the court to frame an issue with reference to the circumstances contained in the second part of Sub-section (2) of Section 13. It is enough that while the dispute at large is beingdisposed of on the basis of the issues framed on the pleadings of the parties, the court must be aware that besides merely deciding the comparative hardships it has also to find out whether some other course is possible which will satisfy the needs of both the landlord and the tenant and whether there will be no hardship at all to either of them. If on the basis of the circumstances present on the record the Court disposes of the litigation with the provisions of the entire Section 13(2) present in the mind of the court, it is enough. However, in Bhaskar Digambar Choudhary v. Bhagwan Vishwanath Fadnis, (1978) 78 BomLR 454, Sawant, J, took a different view. According to this learned Judge it was a statutory duty of the Rent Court to frame issue appropriate to the provisions of second part of Sub-section (2) of Section 13 of the Rent Act whether there has been any pleading or not by the parties in that behalf. In the case before the learned Judge there was no such pleading. The trial Court therefore framed no issues at all in relation to the second part of Sub-section (2) of Section 13, though a general issue covering the provisions of Section 13(1)(g) read with the first part of Section 13(2) was already framed, and decided. At the Appeal Court for the first time an application was filed by the tenant that he would be willing to surrender one room out of the three rooms which formed the tenement. That according to the tenant would satisfy the needs of the landlord and there would be in that case no hardship upon either. In spite of such an application, the learned Joint District Judge who heard the appeal did not discuss the matter nor gave any finding in that behalf. This according to the learned single Judge was a failure to perform the statutory duty cast upon the Rent Court by Section 13(2) second part. Hence he remanded the matter not to the trial Court but to the District Court for framing the appropriate issue and permitting the parties to lead additional evidence, if any. While doing so however the scope of the inquiry was enlarged even to consider the question of bona fide requirements and the comparative hardship of the parties. That apart, the learned Judge thought that framing of issue appropriate to the second part of Sub-section (2) of Section 13 was a statutory duty and this according to the learned referring Judge amounts to a contradiction between two Judges of this Court.

14. Shri Naik who appeared for the petitioner-tenant argued that looking to tha scheme of the Rent Act and the provisions of Section 13 as a whole, it seems to be the statutory requirement that an issue relating to thesecond part ot Sub-section (2) of Section 13 must be framed. We make it expressly clear that reference made by the learned single Judge merely relates to the framing of statutory issue under the second part of Sub-section (2) of Section 18 and the issue itself which has been proposed as a statutory issue by the learned Single fudge is as follows:

'Whether even in the absence of pleadings in that regard it is obligatory upon the Court to frame an issue in order to find out whether by passing a decree for partial eviction there will be no hardship either to the landlord or to the tenant as mentioned in Sub-section (2) of Section 13.'

It is this limited reference that is being discussed and decided upon by us. Otherwise we are disposing of the petition on the whole on the merits in view of the direction of the learned Chief Justice.

15. Shri Naik who supported the reference and more particularly the judgment of Sawant, J. emphasised the scheme of Section 13. What he points out is that the legislature has initially included Clause (g) of Sub-section (1) of Section 13 as one of the enabling grounds for the landlord to obtain possession. Even though the tenant is paying the rent regularly and is otherwise observing all the conditions of the tenancy, the landlord can claim possession for his reasonable and bona fide occupation. However, this is not an absolute right. It is not enough that the landlord merely proves that his need for occupation is reasonable and bona fide; While examining this claim the court undoubtedly must come to the conclusion that the landlord's need is bona fide and reasonable.

16. Since the Rent Act also requires compliance with certain other provisions of the Transfer of Property Act, a landlord claiming possession under Section 13(1)(g) will also be obliged to terminate the tenancy of the tenant in the manner provided by the Transfer of Property Act. This termination must necessarily be of the entire tenancy because the tenancy is indivisible. Having done that the landlord will file a suit for possession and will prove his reasonable and bona fide requirement for occupation. Since the very basis for passing the Rent Act is that accommodation is scarce, the provision of Sub-section (2) of Section 13 further enjoins a duty upon the Court to find out on whom will the hardship be greater in the case of passing or refusing to pass a decree for eviction. It is in that sense that the provisions of Sub-section (2) make it obligatory on the court to consider on the basis of circumstances before it as to whether the hard-ship will be greater on the landlord or on the tenant. As we have pointed out earlier, the Legislature further felt that in certain cases dividing larger premises into smaller convenient units may satisfy requirement of the landlord and the tenant and ft decree (or partial eviction may bring about the desired justice between the parties. However, the Legislature was aware that the tenancy is indivisible and could be terminated as a whole, Since the landlord would necessarily terminate the whole tenancy unless some statutory provision is made to enable the Court to bring about some kind of justice between the parties, the intended relief may not become possible. With that aim in view, the legislature added the second part of Sub-section (2).

17. The operation of the second part begins when once the comparative hardship has been found. If the comparative hardship is much more on the tenant no question of passing a decree in favour of the landlords arises. If the comparative hardship is greater so far as the landlord is concerned an option arises for passing a decree for eviction under Section 13(1)(g). Even then while comparing the hardship and as a part of the reasonable requirement of the landlord, the Court may take into account the provisions of the second part of Sub-section (2) of Section 13. Even under Section 13(1)(g) the requirements for obtaining possession are two. First is that the demand for possession must be obviously bona fide. The second is, it must be reasonable. A bona fide need is again circumstanced by reasonableness of the demand and it is in the concept of reasonableness that eviction of the entire premises or part thereof seems to fall. The landlord would therefore set his case and claim the whole of the premises as not only being bona fide but reasonable demand for his need. While judging that evidence of the landlord the Court will take into consideration under the second part of Sub-section (2) the reasonableness of the demand and try to find out whether in spite of the hardship being larger on the landlord a lesser allocation of the space would meet the ends of justice in such a manner that there will be no hardship on either party. This being therefore the scheme of the provisions of Section 13(1)(g) read with Sub-section (2) thereof as a whole, the duty on the court is merely to consider the approach and we do not think that in doing so any issue needs to be framed as a statutory issue in the litigation.

18. There have been several Acts in the past where statutory issues were laid down by the provisions of the law itself. The legislation relating to the adjustment of debts on agriculturist always required two statutory issues tobe framed in Hie suit. The first was whether the plaintiff was an agriculturist and the other was whether his debt exceeded Rs. 15000/-. The scheme of that Act was to give relief to smaller agriculturists whose debt did not exceed Rs. 15000/-. An agriculturist who had the credit in the market to get more than Rs. 15000/- was considered to be a person not entitled to relief under that Act. Under the earlier Act, viz. the Deccan Agriculturists Relief Act, the issue relating to the status of being an agriculturist was also a statutory issue. That Act compelled every agriculturist to get an advantage of that Act and even by compromise the status as an agriculturist could not be given up. We do not find that approach of the Legislature so far as the Rent Act is concerned.

19. No particular status or statutory right is being bestowed upon the tenant. He is merely afforded protection against eviction in certain circumstances, if he needs it and claims it. Nobody compels him to stay in the premises- By his sweet will he can walk out of the premises. Even where good grounds exist for eviction like provisions of Section 13(1)(g), a further rider is added by which the Court is called upon to bear in mind the provisions of the second part of Sub-section (2) of Section 18 and dispose of the litigation with a view to do proper justice between the parties. We do not therefore think that a statutory issue must necessarily be framed by the Court which covers the provisions of the second part of Sub-section (2) of Section 13 of the Rent Act.

20. Shri Naik for the petitioner argued that we are not free to take such a view. The view already taken by this Court in the case of Bhaskar Digambar Choudhary 1976 BomLR 454 has been confirmed by the Supreme Court. In that very matter the respondent landlord who was dissatisfied with the order of remand went in appeal to the Supreme Court and the judgment of the Supreme Court is reported in Bhagwan Vishwanath Phadnis v. Bhaskar Digambar Choudhary : AIR1977SC2183 . It is a very short judgment and we do not find in it anything to support the argument of Shri Naik. The first three paragraphs of the judgment give the details of the pleadings and the findings in the two Courts below, viz. the trial Court and the Appellate Court. In para 4 the learned Judges observe that if the High Court felt that an issue has not been considered by the Joint Judge, it was not necessary to remand the entire matter but an issue or question should have been framed and a finding could have been invited on that issue- Since that was notdone by the High Court, the operative part of the judgment follows in paras 5 and 6. Their Lordships point out that even though the tenant had not pleaded in the trial Court anything of that kind, he made an offer by a written application in the court of the Joint Judge for surrendering one room out of the three room tenement. It was also pointed out in that application that an adjoining hall to that room was already in possession of the landlord and this added room to that hall will meet the requirements of the landlord. In other words, a pleading was made as if though belated in the District Court that the surrender of one room by the tenant and adding it to the existing occupation of the landlord, might bring about a situation which is contemplated by the second part of Sub-section (2) of Section 13. Though such an offer was made it was not specifically considered by the Joint Judge. The Supreme Court therefore confines the order of remand only to the consideration of this limited inquiry and not further. Though evidence is permitted to be led it is to be led only on this limited point, viz. whether the premises are divisible conveniently between the parties and if so whether tha handing over of one room would satisfy tha reasonable and bona fide needs of the landlord. The Supreme Court expressly makes it clear that if the premises themselves are not divisible, there would be no question of considering the matter further but in view of the concurrent findings of the two Courts in favour of the landlord, the decree for possession must be maintained. It is only when the matter goes back, the District Court will have to consider whether a readjustment of Occupation between the parties is possible in terms of the second part of Sub-section (2) of Section 13. This is the total judgment of the Supreme Court and we fail to see how this judgment could be said to have confirmed the view canvassed by the learned Single Judge of this Court. On the contrary we find that the Supreme Court has not referred at all to that part of the reasoning by which the learned Single Judge observes pointedly the so called statutory duty of the Courts below to frame certain issue in terms of the second part of Sub-section (2) of Section 13.

21. Shri Naik then referred us to a judgment of the Supreme Court in the case of Rahman v. Ram Chand : [1978]2SCR380 . A very short order has been passed by the Supreme Court in this case which refers to the provisions of the proviso to Explanation to Section 11 (1) (h) of the Jammu and Kashmir Houses and Shops Rent Control Act (34 of 1966). The provisions of that Section and theclause are not to be found in the every order passed by the Supreme Court. Shri Naik therefore pointed out to us the provisions of Section 11 (1) (h) of that Act from para 25 of Jagdishkumar v. Harcharan, AIR 1974 J&K; 87 . We have gone through the substantive Section as well as the proviso concerned dealing with the determination of reasonableness of requirement for the purpose of building and rebuilding of the premises. The two provisions could not be said to be in pari materia. The Supreme Court's observations therefore do not assist us much in deciding the present point.

22. Shri Naik then referred us to the judgment of the Calcutta High Court in Krishna Das Naudy v. Bidhan Chandra Ray : AIR1959Cal181 . He drew our attention to paras 77 and 80 of that judgment. This judgment was also cited before Deshpande, J. to whose reported judgment we will presently refer. The learned Single Judge observed that some of the sentences in paras 77 and 80 read out of context are capable of supporting the point of view which is being canvassed by Shri Naik. We therefore went through a large part of the judgment and found that the argument which is addressed to us by Shri Naik was also addressed to that Court but the point was expressly left open as can be seen from the observations in para. 83 thereof. This is not a judgment therefore which decides in a positive manner the point canvassed and it cannot be said that there is some support in the judgment for the view advocated by Shri Naik.

23. Shri Naik also relied on some observations in M/s. Kasturbhai Ramchand Panchal v. Firm of Mohanlal Natirubhai : AIR1969Guj110 , In that judgment what has been observed is that whenever comparative hardship is being considered, it is necessary for the court to further consider whether an equitable division of the premises can bring about a situation contemplated by the second part of Sub-section (2) of Section 13. We do not find anywhere any observation which supports the specific plea raised before us, viz. that a statutory issue must be raised which covers the provisions of the second part of Sub-section (2) of Section 13.

24. These are all the judgments which axe cited before us. Having considered the arguments in depth, we are of the view that there is no statutory obligation to frame a particular issue covering the provisions of the second part of Sub-section (2) of Section 18 of the Rent Act. On the contrary when the total circumstances of a case are being considered by the Court in the light of the pleadings of the parties and the evidence led, it is enough if the Court isaware that while passing a decree for eviction against a tenant a division of the premises is] permissible and under certain circumstances it can bring about a situation where the needs of both the landlord and tenant are satisfied without there being any hardship on either of them. If the Court disposes of the case with the awareness of these provisions either by express discussion or by implication where the facts speak for themselves, the Rent Court had done its duty properly and there is no infirmity! of any kind either in the procedure or in the substantive disposal of the dispute.

25. In the case of P.A. Machiah 1975 BomLR 99 Deshpande, J. observed on pages 100 and 101 as follows:

'But whether findings on one or both parts of this Section is necessary or not, must necessarily depend on how the case is prosecuted on either side. Each one may seek to acquire or retain possession of the entire premises by establishing greater hardships to himself or seek to acquire or retain only part of the premises by proving no hardship to either. Each one may even try to bring his case under both the parts and seek relief's alternately taking no chance. This must, in turn, depend in no small measure, on the urgency and extent of the needs of both, availability of alternate accommodation, the extent of the accommodation in dispute, degree of adaptability of the parties and suitability of the portion of the premises and variety of other factors. Suffice it to note that it is not difficult to conceive of cases where mere part of the premises may not suit the requirements of the either under any circumstances, and of his own deliberate choice, each one of them may rather choose to concentrate on first part and try to acquire or retain the entire premises fay proving his greater hardship than even think of pressing for any portion of the premises. It would be unrealistic to such a situation to require the Court to record any finding on the second part even when parties themselves have deliberately, due to the sheer disinterestedness, not pressed for it at any stage of the trial. There is nothing in Section 13(2) to require the Court mandatorily to record a finding on both the parts even without any plea, evidence and need. It would indeed be an idle formality.'

We are in respectful agreement with the reasoning of the learned Single Judge and we think that the above observations correctly lay down the law in regard to the provisions of Section 13(1)(g) read with Section 13(2). Needless to add that we neither agree with nor approve of the view taken by Savant, J. in BhaskarDigambar v. Bhagwan Vishwanath : (1976)78BOMLR454 .

26. We may additionally point out that the provisions of Section 13(2) in the form in which they appear have always been there ever since the present Act of 1947 became effective from 13-2-1948. The entire litigation in this State has been conducted on the footing that there is no statutory obligation of framing any such issue. Rent litigation forms a bulk of litigation in many places. If we were now to observe that an issue, as proposed by the learned Single Judge, is a statutory necessity it may result in remanding literally hundreds and thousands of suits to the trial court without any appreciable benefit to the parties whose needs are genuine. It may give a distinct advantage to the unscrupulous tenants who have really no defence in an action of eviction against them under Section 13(1)(g) read with Section 13(2). If any instance is needed, the present litigation is gross instance of that type.

27. We may now indicate briefly the position of the respective parties and the findings given by the Courts below. The landlord claimed that he was in need of the two room tenement for starting a new business for his son who has now grown up into manhood. This need has been accepted by the two courts of facts as a genuine, bona fide as welt as reasonable need. As against that, what is the position of the present petitioner-tenant. It is only in a formal sense or a technical sense that he is a tenant as he himself is a landlord and has let out several tenements to others. The petitioner claims that the disputed premises are located in the market area in the town of Akluj. The finding is that the other property of the petitioner himself is located within 300 it, in that very land (locality?) in the town. Not only that but a much larger portion was in his possession which he remodeled and let out with impunity to several tenants while the present litigation was pending. He is fetching for comparable premises rent of Rs. 300/- per month; whereas he is paying a pittance to the present landlord. In fact he is a mere rent farmer. He is profiteering by remaining a tenant in the premises of the respondent-landlord. Such a tenant would welcome the remand and prolongation of litigation for several years. In fact this is a suit of Jan. 1971 where the High Court is yet unable to confirm the decree, which is more than deserved by the landlord.

28. Shri Naik tried to argue that even if the Court has come to the conclusion that the hardship will be greater on the landlord in refusing to pass a decree, it would be obligatory to consider whether a division of the property could be made so as to comply with the provisions of the second part of Sub-section (2) of Section 13. In our view, this is not a case where the consideration of that portion of Section 13 ever arises. We have therefore quoted earlier a finding given by the trial Court on issue No. 4. The finding is that there will be no hardship at all to the tenant in passing a decree in favour of the landlord, whereas there would be hardship if the landlord is denied the decree. In the body of the discussion we find that the learned trial Judge made the following observations in para 14 of the judgment:

'The premises of the defendant which are alleged to he residential are being used by a radio dealer or a repairer. The said premises were vacant when the suit was pending. The defendant has let out his premises for better rent and wants to occupy the suit permises at a cheaper rent.'

The learned Joint Judge observed in paragraph 14 of his judgment that it was pertinent to note that the defendant was admittedly the owner of a big building just near the suit premises hardly at a distance of 300 feet and that several tenements in that building were let out to a number of persons both for residence as well as for trade and some portions are also in the actual possession of the defendant.

29. Here is, therefore, a petitioner-tenant who is actually profiteering by retaining the rented premises of others and by letting out his own premises at higher rent in the very locality where the disputed building is situate. In the case of such a person when there is no hardship at all upon him, this is not a case where a situation is to be brought about where there would be no hardship on either side. Where there is none even though the entire premises are handed over, the case does not deserve to be considered at all under the second part of Sub-section (2) of Section 13. That being the factual aspect of this case, we think that the decree of eviction passed by the two Courts below in respect of both the rooms must be confirmed.

30. The petition thus fails and is dismissed with costs.

31. Petition dismissed.


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