Sunday, 29 October 2017

How to decide issue of comparative hardship in case of tenanted premises?

Section 13(1)(g) of the Rent Control Act entitles the landlord /
landlady to recover possession of the tenanted premises where,
such premises are reasonably and bona fide required by the
landlord / landlady for personal occupation or occupation by any
person or whose benefit the premises are held. Section (2) of
Section 13 of the Rent Control Act however provides that no decree
for eviction shall be passed on the grounds specified in Section
13(1)(g) of the Rent Control Act if the court is satisfied that, having
regard of the circumstances of the case including the question
whether other reasonable accommodation is available for the
landlord or a tenant, greater hardship could be caused by passing
the decree than by refusing to pass it. Further, 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 the part of the

premises, the court shall pass the decree in respect of such part
only.
8] In this case, as noted earlier, the suit premises comprises of
a single room situate on the first floor in the building on Plot bearing
CTS No. 664, Raviwar Peth, Pune. The plaintiff no. 1 occupies the
another one room to tenement with open terrace on the second
floor of the same building. The ground floor comprised two shops,
one of which, was tenanted to Mr. Mundada and the other to Mr.
Alwani. The second room on the first floor i.e. the room adjacent to
the suit premises is also tenanted to one Smt. Shah.
9] There is evidence on record that the plaintiff no. 2, who is
also, the landlady in respect of the suit premises resides at
Hadapsar, Pune in a slum area with her family, since, there was no
enough room, in the premises of the second floor held by the
plaintiff no. 1, her mother. Similarly, the plaintiff no. 3, who normally
resides at Jalgaon, but, who has to visit Pune very often, also, had
no suitable place to stay in Pune. The plaintiffs – landladies
therefore instituted proceedings for eviction and recovery of
possession of the suit premises on the ground that the same are
bona fide and reasonably required by the plaintiffs for their
occupation.

10] There is ample material on record to establish the ground of
reasonable and bona fide requirement. It is settled position in law
that the requirement is required to be construed from the
perspective of the landlords / landladies and it is not for the tenants
to dictate any terms to the landlords / landladies in such matters.
However, the requirement has to be both reasonable and bona fide.
There is accordingly, no unfettered discretion vested in the landlords
/ landladies and it is for the courts to determine whether the
requirement is indeed reasonable and bona fide, taking into
consideration all the circumstances of the case. Further, the Court,
is not to make a decree of eviction on this ground, unless, it is
satisfied that, having regard to all the circumstances of the case
including question whether the other reasonable accommodation is
available to the landlord or the tenant, whether, greater hardship
would be caused by passing the decree of eviction than by refusing
to pass the same. Further, the court is also required to consider
whether the decree can be made only in respect of part of the
premises.
11] In the present case, as noted earlier, the suit premises is only
a single room tenement. Therefore, there is no question of making a
decree only in respect of part of the premises. Mr. Surana, learned
counsel for the petitioners did not even make any such submission,

possibly because it was his case that there is no material on record
to sustain any decree on the ground as contemplated by Section
13(1)(g) of the Rent Control Act.
12] The material on record, very clearly establishes both
reasonability and bona fides of the requirements of the landladies.
Admittedly, all the plaintiffs, are accepted to be the landladies in
respect of the suit premises. This position was never seriously
contested and therefore, there is no scope to entertain the
submission that since the plaintiff nos. 2 and 3 were married
daughters, they were disentitled to seek eviction or in any case no
eviction decree can be made at their behest. The material on record
further establishes that it is reasonable even for the plaintiff no. 1 to
require additional space, on the first floor, when, she is admittedly
residing in a similar one room tenement on the second floor, in
order to accommodate the plaintiff nos. 2 and 3 who are her
daughters and also landladies in their own right along with their
family members.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2326 OF 1997
Shri Jainarayan Bodhuram Tiwadi vs. Smt. Kesarbai Babulal Badhai

CORAM : M. S. SONAK, J.

Dated : 27 JUNE 2017
Citation: 2017(4) MHLJ 735

1] Heard Mr. S. G. Surana, learned counsel for the petitioners.
The respondents, though served, neither present nor represented.
2] The petitioners are the tenants – legal representatives of the
tenants in respect of the suit premises, of which, the respondents
are the landladies – legal representatives of the landladies. The suit
premises comprised one room situate in CTS No. 664, Raviwar
Peth, Pune (suit premises).

3] The landladies in the year 1982 instituted Suit No. 2150 of
1982 in the Small Causes Court, Pune (trial Court) seeking the
eviction of the petitioners on the following grounds:-
(A) That the tenant has acquired vacant possession of a
suitable residence. This is a ground contemplated under
Section 13 (1)(l) of the Bombay Rents Hotel and Lodging
House Rates Control Act, 1947 (Rent Control Act);
(B) That the suit premises are reasonably and bona fide
required by the landladies for their personal occupation or by
persons for whose benefits the suit premises are held. This is
a ground contemplated under Section 13(1)(g) of the Rent
Control Act.
4] The trial Court, by judgment and decree dated 16th April 1985,
decreed the landladies suit and ordered the eviction of the tenants
on both the aforesaid grounds. Aggrieved by the same, the tenants,
instituted appeal to the District Court at Pune, which appeal, was
made over to the Additional District Judge, Pune (Appeal Court) and
numbered as Civil Appeal No. 801 of 1985. The Appeal Court, by
judgment and decree dated 3rd March 1977, has dismissed the
Appeal. Hence the present petition by the petitioners – tenants and
legal representatives of the tenants.
5] Mr. Surana, learned counsel for the petitioners has made the

following submissions in support of the petition :-
(A) That the material on record very clearly establishes that
it is not the tenant who has acquired any alternate suitable
residence but it is the sons of the tenants who have acquired
alternate residences for their own use. In such
circumstances, it could never have been held that the ground
as contemplated under Section 13(1)(l) of the Rent Control
Act was made out. There is jurisdictional error in ordering
eviction upon the said ground. The view taken by the two
Courts is contrary to the decisions of this Court in the case of
Amrut Vishnu Keskar vs. Bhaskar Trimbak Gokhale1
 and
Shankar Nana Waychal & Ors. vs. Mohan Ganesh Date &
Anr.
2
(B) The trial Court and the appeal Court have clearly erred
in holding that this was a case of joint family and therefore the
acquisition of alternate suitable residences by the sons of the
original tenant attract the ground as contemplated by Section
13(1)(l) of the Rent Control Act. Mr. Surana submits that this
was not even the case pleaded by the landladies in their suit
seeking decree of eviction. In any case, Mr. Surana submits
that there is absolutely no evidence to sustain such a finding.
(C) The case of bona fide requirement has not been
1 1983 Mh.L.J. 1017
2 1984 Mh.L.J. 834

made out in the facts and circumstances of the present case.
This is because the plaintiff nos. 2 and 3 were the married
daughters of the original tenant i.e. plaintiff no. 11. Secondly,
the plaintiff no. 3 was residing at Jalgaon and plaintiff no. 2 at
Hadapsar. The requirement of plaintiff nos. 2 and 3, could
never been regarded as bona fide requirement. In any case,
the issue of comparative hardship, in such
circumstances, was required to be decided in favour of the
tenants and not the landladies.
(D) After the impugned decree for eviction were made, the
landladies, have secured possession of premises
admeasuring 450 sq. ft. in the very same building in which
the suit premises are located from Mr. Tulshiram Mundada.
Mr. Surana submits that the cognizance is required to be
taken of this subsequent development and upon such
cognizance being taken, the ground of bona fide requirement
no longer survives. Mr. Surana relies upon the provisions of
Order XLI Rule 27 or in any case principles thereof, in
support of his submission that such additional evidence be
taken into consideration at this stage.
6] With the assistance of Mr. Surana I have perused the
impugned judgments and decrees as also the material on record.

Mr. Surana has also taken me through the averments in the
additional affidavit filed by and on behalf of the petitioners on 20th
June 1997 as well as the affidavit in reply filed by the respondents –
landladies, in response to the same. The issue which arises for
determination in this petition is whether, the concurrent findings of
fact recorded by the trial Court and confirmed by the appeal Court
warrant interference by this Court in the exercise of its extra
ordinary jurisdiction under Article 227 of the Constitution of India.
7] Section 13(1)(g) of the Rent Control Act entitles the landlord /
landlady to recover possession of the tenanted premises where,
such premises are reasonably and bona fide required by the
landlord / landlady for personal occupation or occupation by any
person or whose benefit the premises are held. Section (2) of
Section 13 of the Rent Control Act however provides that no decree
for eviction shall be passed on the grounds specified in Section
13(1)(g) of the Rent Control Act if the court is satisfied that, having
regard of the circumstances of the case including the question
whether other reasonable accommodation is available for the
landlord or a tenant, greater hardship could be caused by passing
the decree than by refusing to pass it. Further, 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 the part of the

premises, the court shall pass the decree in respect of such part
only.
8] In this case, as noted earlier, the suit premises comprises of
a single room situate on the first floor in the building on Plot bearing
CTS No. 664, Raviwar Peth, Pune. The plaintiff no. 1 occupies the
another one room to tenement with open terrace on the second
floor of the same building. The ground floor comprised two shops,
one of which, was tenanted to Mr. Mundada and the other to Mr.
Alwani. The second room on the first floor i.e. the room adjacent to
the suit premises is also tenanted to one Smt. Shah.
9] There is evidence on record that the plaintiff no. 2, who is
also, the landlady in respect of the suit premises resides at
Hadapsar, Pune in a slum area with her family, since, there was no
enough room, in the premises of the second floor held by the
plaintiff no. 1, her mother. Similarly, the plaintiff no. 3, who normally
resides at Jalgaon, but, who has to visit Pune very often, also, had
no suitable place to stay in Pune. The plaintiffs – landladies
therefore instituted proceedings for eviction and recovery of
possession of the suit premises on the ground that the same are
bona fide and reasonably required by the plaintiffs for their
occupation.

10] There is ample material on record to establish the ground of
reasonable and bona fide requirement. It is settled position in law
that the requirement is required to be construed from the
perspective of the landlords / landladies and it is not for the tenants
to dictate any terms to the landlords / landladies in such matters.
However, the requirement has to be both reasonable and bona fide.
There is accordingly, no unfettered discretion vested in the landlords
/ landladies and it is for the courts to determine whether the
requirement is indeed reasonable and bona fide, taking into
consideration all the circumstances of the case. Further, the Court,
is not to make a decree of eviction on this ground, unless, it is
satisfied that, having regard to all the circumstances of the case
including question whether the other reasonable accommodation is
available to the landlord or the tenant, whether, greater hardship
would be caused by passing the decree of eviction than by refusing
to pass the same. Further, the court is also required to consider
whether the decree can be made only in respect of part of the
premises.
11] In the present case, as noted earlier, the suit premises is only
a single room tenement. Therefore, there is no question of making a
decree only in respect of part of the premises. Mr. Surana, learned
counsel for the petitioners did not even make any such submission,

possibly because it was his case that there is no material on record
to sustain any decree on the ground as contemplated by Section
13(1)(g) of the Rent Control Act.
12] The material on record, very clearly establishes both
reasonability and bona fides of the requirements of the landladies.
Admittedly, all the plaintiffs, are accepted to be the landladies in
respect of the suit premises. This position was never seriously
contested and therefore, there is no scope to entertain the
submission that since the plaintiff nos. 2 and 3 were married
daughters, they were disentitled to seek eviction or in any case no
eviction decree can be made at their behest. The material on record
further establishes that it is reasonable even for the plaintiff no. 1 to
require additional space, on the first floor, when, she is admittedly
residing in a similar one room tenement on the second floor, in
order to accommodate the plaintiff nos. 2 and 3 who are her
daughters and also landladies in their own right along with their
family members.
13] The plaintiff no. 2, as per the material on record, is forced to
reside at Hadapsar in a slum and there is nothing unreasonable or
nothing malafide in plaintiff no. 2 wanting to occupy her own
premises, though tenanted to the petitioners. Similarly, there is
nothing unreasonable in the claim of the plaintiff no. 3, though, the

claim of the plaintiff no. 3 may not stand at par with the claim of the
plaintiff nos. 1 and 2. The trial Court and the appeal Court had
recorded concurrent findings of fact on the aspect of bona fide and
reasonable requirement. There is no perversity in the record of such
findings of fact. There is no exclusion of any relevant material nor is
this the case where any irrelevant material has influenced the
record of the findings of fact. This is also not a case of 'no evidence'
so as to warrant interference with concurrent findings of fact under
Article 227 of the Constitution of India.
14] On the aspect of comparative hardship, there is more than
ample evidence on record to sustain findings concurrently recorded
by the two Courts. In this case, the original respondent – tenant was
a very old person, 90 years of age. In the building adjacent to the
building in which the suit premises are located, the petitioners have
a flat in Kalyan Society having three rooms and a toilet. There is
evidence on record in the form of voters list and ration card which
establishes that tenant was in fact staying in this flat along with his
son Laxminarayan. That apart, again, in the neighbourhood, the
petitioners, have another premises with two storeys, which is in the
name of Ramkishan. Again, the premises in Kalyan Society and the
two storied building occupied by some of the petitioners have all
modern amenities and it is, in these premises, that the original

tenant, who was aged more than 90 years, was really residing with
his children. Therefore, even if a decree of eviction were to be
made requiring the petitioners to vacate the single room tenement
i.e. the suit premises, no hardship would really be caused to the
petitioners. In any case, the hardship which will occasion the
landladies by denying them a decree of eviction will be far greater
than any hardship which will occasion the petitioners in the facts
and circumstances of the present case. Therefore, the two Courts,
have quite correctly decided the issue of comparative hardship in
favour of the landladies and there is really no case made out to
interfere with the same.
15] Without going into the issue of a procedure, even if the
additional affidavit filed by the petitioners is taken into consideration,
there is really no case made out to interfere with the concurrent
findings of fact recorded by the two Courts on the aspect of bona
fide and reasonable requirement or comparative hardship. In the
affidavit filed by one of the landladies in response to the additional
affidavit filed by one of the petitioners there is no denial of the
circumstances that the landladies have obtained possession of one
of the shops on the ground floor from Mundada. However, what is
pointed out is that such possession was obtained some time in the
year 1995 and further, to the knowledge of the petitioners, the shop,

has been tenanted to one Smt. Parmar. It is pointed out that
despite knowledge, the plea which is now sought to be raised by
way of affidavit was never raised earlier by the petitioners. Such a
plea was also not raised in writ petition no. 4284 of 1985 which was
disposed of by this Court on 18th October 1996. Further, it is
pointed out that the shop premises admeasure only 132 sq. ft.,
whereas, the suit premises admeasure 369 sq. ft. The ground as
contemplated under Section 13(1)(g) of the Rent Control Act was
invoked by the landladies in the context of their personal
requirement for additional residential space. Therefore, even if, the
landladies have acquired 132 sq. ft. of space on the ground floor,
which was a shop and which continues to be a shop, such ground is
not sufficient to interfere with the findings of fact concurrently
recorded. Therefore, even after taking into consideration the
additional material produced on record by the petitioners, there is
no case made out to disturb the concurrent findings of fact recorded
by the two Courts in so far as ground as contemplated by Section
13(1)(g) of the Rent Control Act is concerned. The decree of
eviction is therefore liable to be confirmed on this ground.
16] In so far as the ground as contemplated by Section 13(1)(l) is
concerned, there is no necessity of deciding whether such ground
stands established in the facts and circumstances of the present

case. This is because once the decree is sustained on the ground
as contemplated by Section 13(1)(g), the petitioners, cannot escape
eviction from the suit premises. However, it must be noted that there
is prima facie merit in the submission of Mr. Surana that the
ingredients of the ground as contemplated under Section 13(1)(l) of
the Rent Control Act may not have been made out in the present
case. This is because the material on record does establish that the
two residential premises referred to by the landladies are in the
name of the two sons of the original tenant. It does appear to have
been the case of the landladies that the tenant was a joint family
and therefore, acquisition of alternate suitable residences by
members of the joint family have afforded them cause of action for
secured eviction under Section 13(1)(l) of the Rent Control Act.
17] In Amrut Vishnu Keskar (supra), the learned Single of this
Court has held that a tenant (aged father) who, on account of his
old age began staying with one of the sons in the son's self
acquired property, cannot be evicted on the ground of acquisition of
alternate suitable residence. No doubt, in the facts of the said case,
another son, continued to occupy the suit premises. Similarly, in
case of Shankar Nana Waychal (supra), this Court has held that
acquisition of independent residence by the tenant's son cannot be
a ground for eviction of the tenant under Section 13(1)(l) of the Rent

Control Act.
18] Thus, for the reasons as aforesaid, there is no case made out
to interfere with the impugned orders in the exercise of extra
ordinary jurisdiction under Article 227 of the Constitution of India.
This petition is therefore dismissed. Interim order, if any, is hereby
vacated. There shall however be no order for costs.
(M. S. SONAK, J.)
19] At this stage, learned counsel for the petitioners seeks for
continuation of interim relief granted at the time of admission of this
petition for further period of eight weeks. The request is reasonable
and therefore the interim order is extended by a period of eight
weeks from today, subject to the condition that even the petitioners
shall maintain status quo in respect of the suit premises. Learned
counsel for the petitioners assures this Court that it is the petitioners
who are in possession of the suit premises.
(M. S. SONAK, J.)

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