Saturday, 18 February 2017

Whether eviction suit can be dismissed on ground of non-non-examination of family member who intends to occupy said premises?

Mere non-examination of the family member who intends
to do the business cannot be taken as a ground for repelling the
reasonable requirement of the landlord. Under the Act, the
landlord needs to establish only a reasonable requirement. No
doubt, it is not a simple desire. It must be a genuine need.
Whether the requirement is based on a desire or need, will
depend on the facts of each case.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 1398-1399 OF 2011
MEHMOODA GULSHAN JAVAID HUSSAIN MUNGLOO 
Dated:FEBRUARY 17, 2017.
Citation:2017 SCC ONLINE SC 143


1. Whether the requirement of the landlord for own
occupation could also mean occupation by a member of the
family, in this case, the son, is the short question arising for
consideration.
2. Appellant filed Civil Suit No. 42 of 2000 seeking eviction of
the respondent from the premises let out to him on 15.11.1997
for a period of eleven months. The said tenancy was verbally
extended for a further period of eleven months though it was the

contention of the respondent that the said extension was for
eleven years. Since, the premises was not vacated after the
extended period of eleven months, the suit was filed for eviction.
3. Besides the ground on expiry of the period, it was the case
of the appellant that the premises was required for her own use.
To quote from paragraph-5 of the plaint:
“5. xxx xxx xxx xxx xxx
i. That the plaintiff has been deserted by
her husband namely : Ch. Mohd Khatai who
has arranged 2nd marriage in the state of
Bangalore, leaving behind the plaintiff and
two sons namely Shujat Huyder aged 27
years unemployed and Waseem Hyder aged
15 years, presently reading in 9th class.
ii. That the plaintiff has no source of
income after the desertion by her husband
and elder sons being of 27 years old is still
unemployed because of the fact, that the son
of the plaintiff namely Shujat Hyder is simply
a matriculate.
iii. That the plaintiff being a house lady and
intends to use the rental premises by
observing his elder son to start his own
business as such the plaintiff requires the
rental premises for her son who can support
the family in the long run.
iv. That the plaintiff has no other source of
income except to use the rental premises by
observing her elder son for starting his own
business in the rental premises.

v. That the son of the plaintiff cannot claim
any Govt. service because of the fact he is
simply a matriculate and he is at the verge of
crossing the age limit.
vi. That the plaintiff cannot absorb her son
in any private institution, he only alternative
is to start his business in the rental premises.
vii. That the plaintiff requires the rental
property for her personal use, enabling her
elder son to establish the business therein.
viii. That the plaintiff has a liability of her
sons, as such requires the rented property for
establishing own business therein.”
4. The following issues were framed by the trial court:
“1. Whether the defendant was bound to hand
over the possession of the suit premises to
the plaintiff after the period of tenancy was
over on 13.11.1999? OPP.
2. Whether the plaintiff requires the suit
premises for her unemployed son?... OPP
3. Whether the plaintiff has rented the premises
for period of 11 years, as such is stopped from
claiming the eviction before the stipulated
period?... OPD
4. What is the comparative advantage and
disadvantage of the parties?... OPP/OPD
5. Whether the requirement of the plaintiff will
be satisfied by partially affecting the
defendant from suit premises?... OPD
6. To what relief the plaintiff is entitled to?”

5. Since we are concerned mainly with the requirement on
the ground of own occupation, we confine references only to the
consideration of issues 2 and 4.
“Issue No.2: With regard to issue no.2 whether
the plaintiff require the premises for her unemployed
son.
There is ample evidence on the file lead by the
plaintiff as well as admitted in cross examination by the
defendant that the husband of plaintiff has married with
a Hindu girl at Cochin and he is residing with his second
wife there. The plaintiff has two sons both of them are
idle. The elder one being of the aged of about 30 years
is not doing any work and that way is idle. It is also on
the record that he is not qualified so that he may aspire
for any government job nor has it been proved by the
defendant that he is associated with the business of his
father at Kochin. Every parent has a cherished desire to
get his or her ward settled in some job so that he can
have a sustenance in his life. The plaintiff does not
possess any commercial building other than the suit
premises where her son could start any business for his
sustenance. Though it is settled law on the subject that
there is a difference between desire and requirement.
Requirement means when objectively seen there must
be the necessity with the party to require the premises
for his own use. It is not a sheer desire only whether the
landlord may show his intent to occupy the premises.
So there is a difference between the two situations and
while differentiating the two situations the evidences on
the file is sufficient to prove that the son of the plaintiff
is in his 30s and is still idle. In these hard times, the
family requirements cannot be met by mere rent of
Rs.5000/- which defendant is paying. So in the given
circumstances, it has been proved by the plaintiff that
plaintiff requires the suit premises for her unemployed
son. The defendant has though tried to controvert this

position but have not been able to convince the court
that the son of the plaintiff is in any manner associated
with the business of his father at Cochin. So this issue is
also decided in favour of the plaintiff.
Issue No.4: With regard to issue no.4 of
comparative advantage and disadvantage of the parties,
the law on the subject is very clear that we have to take
into account while comparing the advantages and
disadvantages of the respective parties the interests of
the person for whose benefit the house and shop is held
whether he being landlord or the tenant. The
explanation to clause (h) of the J&K Houses and Shop
Rent Control Act contains specific provisions regarding
the weighing and measuring the relative hardship which
may be caused to the tenant or landlord in case of
granting or refusing a decree for eviction. The principle
of law enacted with the expansion is to the effect that
the law will lean in favour of the person to whom the
greater inconvenience and hardship is caused and would
grant the relief to the landlord only when his hardships
are likely to exceed the hardships which may be caused
to the tenant. Thus, the question of comparative
advantage and disadvantage has an important bearing
on the question of granting or refusing the relief. The
question of balance of convenience or principle of
comparative advantage and disadvantage will come up
only when the court is satisfied that the premises are
reasonably required by the landlord or any person for
whose behalf the house or shop is held. But before this
is to be decided, the court has to find and determine two
things i.e. I) reasonable requirements of the landlord or
the person for whose benefit the house or shop is held;
II) comparative advantage and disadvantage of the
landlord or any person and the tenant and these two
ingredients must coexist. So what is to be seen while
comparing these two aspects, we have to consider the
reasonable requirement of the landlord or ejectment of
his tenant. The question of requirement always differs
from case to case depending on the facts of its own.
While comparing advantages and disadvantages of the

parties, we have to apply our mind objectively firstly to
this aspect whether requirement of the landlord is real
and is only not a desire, but there is some compulsion
that he requires the premises for his own use and it is
also to be seen whether by eviction the defendant may
not be put to such a disadvantage in which he cannot be
compensated. So, the need of the landlord must be
pressing one and real. Applying this test to the facts of
the instant case and taking stock of the evidence
recorded by the defendant as well as by the plaintiff, it
is not disputed. It is also in the evidence that the
landlords is not having any source of income other than
the rent received through Rent controller and naturally
speaking the amount of Rs.5000/- per month is so paltry
amount in these hard times when every item of the day
to day needs is so costly that hardly she cannot sustain
her family. Thus in the given situation it is the landlord
whose need is more pressing and real an is put to
disadvantage in comparison to the disadvantage which
would be caused to the defendant by eviction because
the machinery installed can be removed with much case
and he can get on rent any other alternative premises in
the vicinity and that will not put to jeopardy the
interests of the defendant. Therefore, the comparative
advantage and disadvantage is also in favour of the
landlord. Hence, this issue is also decided in favour of
the plaintiff.”
6. Issue No. 5, on partial eviction, was also answered in
favour of the plaintiff. Thus, by judgment dated 12.12.2007, the
suit was decreed.
7. Aggrieved, the respondent filed Civil First Appeal No. 228
of 2007 before the High Court of Jammu and Kashmir at Srinagar.

The learned Single Judge, by judgment dated 04.08.2009, allowed
the appeal. According to the learned Single Judge:
“From the pleadings it would appear that the
premises is required for the son of the respondent.
The respondent’s case before the trial court was
that her son was unemployed and that the suit
premise was required for him. The trial Court, as
noticed above, found that the respondent has two
sons both of them are alive. The elder one of the
age of 30 years, is not doing any work and that
way is idle. The trial Court has further found that
the son of the respondent is not qualified so that
he may aspire for any government job. On going
through the evidence it would, however, appear
that the findings are based on either the
statement of the plaintiff or her witnesses. The
best witness in these circumstances, to depose on
the personal requirement was the son of the
respondent himself but he has not been examined
as witness before the trial Court. No explanation
has been given for his non examination.”
8. It was also held that:
“There is nothing in the statement of the
respondent which could even indirectly suggest
the nature of the business that her son intends to
carry on this property, his resources to carry on
the business and his aptitude and physical
strength and other facts requisite for such a
purpose. Thus the evidence is so vague that no
reliance can be placed on it.
Reasonable requirement is a question of law but
whether the landlord has, in a suit for eviction
under Section 11 (h) of the J&K Houses and Shops

Rent Control Act, proved it or not is essentially a
question of fact. Onus to prove is on the plaintiff.
While judging the requirement of a landlord (or the
person for whose use the shop is required), the
court has to take into account a variety of factors
such as the social status of the concerned person,
the standard of his living, his habits, his comforts,
the state of his health, the number of his family
members, the nature of business he intends to
start and the suitability of the property for such
business, the resources he has got to run the
business and the like. If the very person who
needs the shop for his use is reluctant to appear
before the Court, the Court would not extend any
help to him and would not grant any relief in his
favour.”
9. Aggrieved, the appellant filed intra-court appeal as Letters
Patent Appeal No. 175 of 2009 leading to the impugned judgment
dated 23.10.2009. The Division Bench concurred with the learned
Single Judge and held that the appellant has failed to prove that
the premises was required for own occupation, and hence, the
appeal.
10. Heard Mr. V. Giri, learned Senior Counsel appearing for the
appellant and Ms. Diksha Rai, learned Counsel appearing for the
respondent.

11. Section 11(1)(h) of the Jammu and Kashmir Houses and
Shop Rent Control Act, 1966 (hereinafter referred to as “the Act”),
is the relevant provision:
“Section 11(1)(h) “… where the house or shop is
reasonably required by the landlord either for the
purposes of building or re-building, or for his own
occupation or for the occupation of any person for
whose benefit the house or shop is held;”
12. The main ground on which the appellant was non-suited in
the first appeal and the intra-court appeal is that the appellant
has failed to establish her reasonable requirement for own
occupation. Having not examined the son who intends to do the
business, according to the High Court, the requirement of own
occupation was not established.
13. We fail to understand the approach made by the High
Court. It has clearly come in evidence of the appellant that her
one son is unemployed and in view of unemployment, he was
frustrated. The appellant’s husband had contracted second
marriage and he had deserted the appellant. The appellant
herself was unemployed with no source of income. The appellant,
hence, prayed that the property be returned to her so that her

son can look after the family. In cross-examination, she denied the
suggestion that the son was doing business with his father. It had
also been stated further that “except the premises and the
residential house, the plaintiff has no other property”. The trial
court has meticulously analyzed and appreciated the reasonable
requirement of the premises for the business to be managed by
the son of the appellant especially in her peculiar family
circumstances. In our view, trial court has appreciated the
evidence in the right perspective and held that it is not mere
desire but genuine need. The finding of the trial court was
challenged mainly on the ground that the son, for whose benefit
the eviction is sought, has not been examined.
14. Mere non-examination of the family member who intends
to do the business cannot be taken as a ground for repelling the
reasonable requirement of the landlord. Under the Act, the
landlord needs to establish only a reasonable requirement. No
doubt, it is not a simple desire. It must be a genuine need.
Whether the requirement is based on a desire or need, will
depend on the facts of each case.

15. In Bega Begum and others v. Abdul Ahad Khan
(dead) by Lrs. and others1
, this Court has taken the view that
the requirement only connotes an element of genuine need. To
quote from paragraph-13:
“13. Moreover, Section 11(h) of the Act uses the
words “reasonable requirement” which undoubtedly
postulate 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 but not so as to make even the
genuine need as nothing but a desire as the High
Court has done in this case. It seems to us that the
connotation of the term “need” or “requirement”
should not be artificially extended 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 a course would defeat
the very purpose of the Act which affords the
facility of eviction of the tenant to the landlord on
certain specified grounds. This appears to us to be
the general scheme of all the Rent Control Acts
prevalent in other States in the country. This Court
has considered the import of the word “requirement”
and pointed out that it merely connotes
that there should be an element of need.”
16. Bega Begum (supra) has also considered the scope and
ambit of the expression “reasonable requirement” at
paragraph-17:
1
(1979) 1 SCC 273
11Page 12
“17. This brings us to the next limb of the argument
of the learned Counsel for the respondents
regarding the interpretation of Section 11(1)(h) of
the Act. Section 11(1)(h) of the Act runs thus:
“11(1)(h… where the house or shop is
reasonably required by the landlord either
for purposes of building or rebuilding, or
for his own occupation or for the occupation
of any person for whose benefit the
house or shop is held;
Explanation.—The Court in determining the
reasonableness of requirement for purposes of
building or rebuilding shall have regard to the
comparative public benefit or disadvantage by
extending or diminishing accommodation, and
in determining reasonableness of requirement
for occupation shall have regard to the comparative
advantage or disadvantage of the landlord
or the person for whose benefit the house or
shop is held and of the tenant.”
It was submitted by Mr Andley, learned Counsel for
the respondents that the words used in Section
11(1)(h) are “that the house should be required by
the landlord for his own occupation or for the occupation
of any person for whose benefit the house
or shop is held”. It was argued that the words
“own occupation” clearly postulate that the landlord
must require it for his personal residence and
not for starting any business in the house. We are,
however, unable to agree with this argument. The
provision is meant for the benefit of the landlord
and, therefore, it must be so construed as to advance
the object of the Act. The word “occupation”
does not exclude the possibility of the landlord
starting a business or running a hotel in the shop
which also would amount to personal occupation
by the landlord. In our opinion, the section con-
12Page 13
templates the actual possession of the landlord,
whether for his own residence or for his business.
It is manifest that even if the landlord is running a
hotel in the house, he is undoubtedly in possession
or occupation of the house in the legal sense of
the term. Furthermore, the section is wide enough
to include the necessity of not only the landlord
but also of the persons who are living with him as
members of the same family.”
17. In Joginder Pal v. Naval Kishore Behal2
, after
extensively referring to all the decisions of this Court and some
other High Courts, it was held that in interpreting “own use”, the
court should adopt a practical and meaningful approach guided
by realities of life. The guidelines are being summarized at
paragraph-33:
“33. Our conclusions are crystallised as under:
(i) The words “for his own use” as occurring in Section
13(3)(a)(ii) of the East Punjab Urban Rent Restriction
Act, 1949 must receive a wide, liberal and
useful meaning rather than a strict or narrow construction.
(ii) The expression — landlord requires for “his own
use”, is not confined in its meaning to actual physical
user by the landlord personally. The requirement
not only of the landlord himself but also of
the normal “emanations” of the landlord is included
therein. All the cases and circumstances in
2
(2002) 5 SCC 397
13Page 14
which actual physical occupation or user by someone
else, would amount to occupation or user by
the landlord himself, cannot be exhaustively enumerated.
It will depend on a variety of factors such
as interrelationship and interdependence — economic
or otherwise, between the landlord and
such person in the background of social, socio-religious
and local customs and obligations of the society
or region to which they belong.
(iii) The tests to be applied are: (i) whether the requirement
pleaded and proved may properly be
regarded as the landlord’s own requirement; and,
(ii) whether on the facts and in the circumstances
of a given case, actual occupation and user by a
person other than the landlord would be deemed
by the landlord as “his own” occupation or user.
The answer would, in its turn, depend on (i) the
nature and degree of relationship and/or dependence
between the landlord pleading the requirement
as “his own” and the person who would actually
use the premises; (ii) the circumstances in
which the claim arises and is put forward; and (iii)
the intrinsic tenability of the claim. The court on
being satisfied of the reasonability and genuineness
of claim, as distinguished from a mere ruse to
get rid of the tenant, will uphold the landlord’s
claim.
(iv) While casting its judicial verdict, the court shall
adopt a practical and meaningful approach guided
by the realities of life.
(v) In the present case, the requirement of the
landlord of the suit premises for user as office of
his chartered accountant son is the requirement of
landlord “for his own use” within the meaning of
Section 13(3)(a)(ii).”
18. Joginder Pal (supra) was followed in many subsequent
decisions and one close to the dispute in the instant case is Ajit
14Page 15
Singh and another v. Jit Ram and another3
. It has been held
at paragraph-19:
“19. From the aforesaid decision of this Court (in
Joginder Pal case), it is therefore clear that this
Court has laid down authoritatively that a non-residential
premises, if required by a son for user by
him would cover the requirement of the words
used in the section i.e. “for his own use” in reference
to a landlord. …”
19. In C. Karunkaran (dead) by Lrs. v. T. Meenakshi4
, one
issue which arose for consideration was whether non-examination
of the person for whose need the building was required was fatal.
It was held that “mere non-examination of the person for whose
need the building was required by itself was no ground to non-suit
the landlady”. To quote:
“… Mere non-examination of the person for
whose need the building was required by itself
was no ground to non-suit the landlady. In a
number of decisions, [this fact is acknowledged
by the first appellate court also], it has been
held that it is not necessary to examine the
person for whose need the premises are
required. It depends on the facts and
circumstances of each case. …”.

3
(2008) 9 SCC 699
4 Civil Appeal No. 2773 of 2002 decided on 06.10.2005
15Page 16
20. In Gulraj Singh Grewal v. Dr. Harbans Singh and
another5
, this Court had an occasion to see whether a landlord
can be non-suited on the ground of non-examination of the son
for whose benefit the premises is sought to be vacated. This Court
held that in case the need has otherwise been established in
evidence, the non-examination is not material. At the best, it is
only a matter of appreciation of evidence. To the extent relevant,
paragraph-8 reads as follows:
“8. Learned counsel for the appellant submitted
that the personal need found proved is only of
respondent 2, son of respondent 1, who did not
enter the witness-box and, as stated in an affidavit
filed in this Court, even he is carrying on
his profession at a place about 25 kms. away
from Ludhiana, in our opinion, this finding of
fact is unassailable. The High Court has clearly
observed that no meaningful argument could be
advanced on behalf of the appellant to challenge
this finding of the appellate authority. Respondent
1 who is the father of respondent 2,
has supported and proved the need of respondent
2, who also is a landlord. The fact that for
want of suitable accommodation in the city of
Ludhiana, respondent 2 is at present carrying on
his profession at some distance from Ludhiana
is not sufficient to negative the landlord’s need.
In these circumstances, the non-examination of
respondent 2 also, when respondent 1 has examined
himself and proved the need of the
landlord, is immaterial and, at best, a matter re-
5
(1993) 2 SCC 68
16Page 17
lating only to appreciation of evidence, on which
ground this finding of fact cannot be reopened.
… .”
21. Thus, the question is whether there is a reasonable
requirement by the landlord of the premises. This would depend
on whether the landlord has been able to establish a genuine
element of need for the premises. What is a genuine need would
depend on the facts and circumstances of each case. Merely
because the landlord has not examined the member of the family
who intends to do business in the premises, he cannot be
non-suited in case he has otherwise established a genuine need.
The need is a matter of appreciation of evidence, and once there
is no perversity in the appreciation of evidence on the need, the
said finding of fact cannot be reopened. It may be crucially
relevant to note that the eviction is not sought on the last limb of
Section 11(1)(h) of the Act namely, “for the occupation of any
person for whose benefit the house or shop is held”. The
premises sought to be evicted is not held for the benefit of the
son alone; but the whole family. It is for the own occupation of the
landlord. It has been established in the facts of this case that the
landlord was not happy and content with the paltry rent received
17Page 18
from the premises. The landlord intended to engage her son in
the business at the premises. It is for the landlord to decide as to
the best use the premises should be put to. There is nothing
wrong on the part of a landlord in making plans for a better living
by doing business engaging her son. Having regard to the
background of the son who is unemployed and undereducated,
the appellant was able to establish that business was the
available option and the tenanted premises was the only space
available. Thus, the genuine need for the premises has been
established. Unfortunately, the High Court has missed these
crucial aspects.
22. The appellant having established a reasonable
requirement of the tenanted premises for own occupation, is
entitled to succeed. Therefore, the appeals are allowed. The
judgment of the learned Single Judge in the first appeal and
confirmed in the intra-court appeal by the Division Bench, which
is impugned in these appeals, is set aside. The judgment and
decree of the trial court is restored. The respondent is granted a
period of three months to surrender vacant possession.
23. There shall be no order as to costs.
18Page 19
…...…..………………….J.
 (KURIAN JOSEPH)
...……..………………….J.
 (A.M.
KHANWILKAR)
NEW DELHI;
FEBRUARY 17, 2017.

Print Page

No comments:

Post a comment