Whether it is mandatory for court to make enquiry regarding comparative hardship faced by landlord or tenant prior to passing to eviction decree?

 So far as the question of comparative hardship is concerned, as pointed out earlier the Trial Court has recorded almost all findings in favour of the tenant but the ultimate decision in favour of the landlord. The Appellate Court has negatived the plea of tenant, regarding the comparative hardship on the ground that if the tenant is given reasonable time to vacate the premises, such eventuality can be cured or met with. In my opinion, no such finding can be recorded without any inquiry by the Court. As pointed out earlier, the requirement of second part of Sub-section (2) of Section 16 regarding the assessment of extent of requirement of the landlord, is aimed at striking of balance between the reasonable and bonafide requirement of the landlord and comparative hardship likely to be caused to the tenant. This provision is held to be mandatory. The exercise contemplated by second part of Sub-section (2) of Section 16 is required to be carried out by the Court itself, to arrive at satisfaction contemplated by Section 16(2); both the parts. There is absolutely no evidence on record and no discussion in the judgments delivered by both the Courts below, on this aspect. The Appellate Court could not have recorded the finding against the tenant on the aspect of comparative hardship to the tenant, without carrying out exercise as contemplated by both the parts of Sub-section (2) of Section 16 of the said Act. In view of this, the decree passed by the Trial Court, as maintained by the Appellate Court, will have to be quashed and set aside and the matter will have to be remanded back to the Trial Court, for enquiry into the extent of need of the landlord and the comparative hardship, likely to be caused to the tenant, because of complete eviction from the suit premises.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Civil Revision Application No. 244 of 2007

Decided On: 14.12.2009

 Bismilla Bee  Vs. Anwar

Hon'ble Judges/Coram:

R.K. Deshpande, J.

Citation: 2010(2) MHLJ 829,2010(1) ALLMR 889

Print Page

Burden of proof is on whom to prove issue of comparative hardship in eviction suit?

 In Mst. Bega Begum and Others v. Abdul Ahad Khan (dead) by Lrs. and others, MANU/SC/0313/1978 : (1979) 1 SCC 273 pari materia provision contained in J & K Rent Act came up for the consideration of this Court. It was observed that it is no doubt true that the tenant will have to be ousted from the house if a decree for eviction is passed but such an event would happen whenever a decree for eviction is passed and merely because the tenant will be ousted from the premises where he was running his activity cannot, by itself, be considered to be a hardship and be a valid ground for refusing the landlord a decree for eviction. In deciding the extent of the hardship, each party has to prove its relative advantages or disadvantages and the entire onus cannot be thrown on plaintiffs to prove that lesser disadvantages will be suffered by the defendants and that they were remediable. The owner of the property cannot be denied eviction and compelled to live poorly merely to enable the tenants to carry on their flourishing business activity at the cost of the landlord. The fact that there is no other means for the landlord to augment his income except by getting the tenancy premises vacated compared against the conduct of the tenant who having obtained the premises for a fixed number of years has overstayed and enjoyed the premises for a long period of time are relevant factors not to deprive the landlord from the possession over the tenancy premises and recording a finding of no equity in favour of the tenants continuing in possession any further. If the tenants prove that they will not be able to get any accommodation anywhere in the city that may be a relevant consideration. However, the tenant cannot insist on getting an alternative accommodation of a similar nature in the same locality because that will be asking for the impossible. What are to be weighed as relevant factors are the comparative inconvenience, loss, trouble and prejudice.

35. A perusal of these paragraphs would go to show that nowhere the Supreme Court held that there is no requirement to raise pleadings. What the Supreme Court held in paragraph 10 is that it is expected of the parties to raise necessary pleadings and the Court to frame necessary issues based on the pleadings so as to enable the parties to adduce evidence and bring on record such relevant material as would enable the Court forming an opinion on the issue of comparative hardship and consistently with such finding whether a partial eviction would meet the ends of justice. Even if no issue has been framed, the Court may discharge its duty by taking into consideration such material as may be available on record.

 IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 257 of 2007

Decided On: 22.02.2013

Chetan Anand Shetty  Vs.  Indrajeet Chandrasen Shirole and Ors.

Hon'ble Judges/Coram:

S.C. Dharmadhikari, J.

Citation: 2013(3) MHLJ 310,2013(3) ALLMR 33,2013(4) AIR BOM R 530.

Print Page

Whether it is mandatory for court to consider that it is possible to pass partial eviction decree?

However, there is one aspect which the Appellate Court has glossed over namely, by virtue of the later part of sub-section (2) to section 13 of the Act, the Court was obliged to examine as to whether there was any possibility of passing a partial decree. The Apex Court in the case of Rahman Jeo Wangnoo v. Ram Chand & others, reported in MANU/SC/0362/1977 : [1978]2SCR380 has observed that the provision such as section 13(2) of the Act mandates the Court to consider whether partial eviction as contemplated therein should be ordered or the entire holding should be directed to be evicted. The Apex Court further observed that the Court must proceed on the footing that the absence of a specific pleading under the said proviso does not stand in the way of the obligation of the Court to act in compliance with the mandate of the statute. 

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 4457 of 1991

Decided On: 28.08.2002

 Gaur Chandra Basu and Anr. Vs. Ruchira Ashok Sonde and Anr.

Print Page

Whether eviction decree can be passed against tenant if he fails to take efforts to find alternative accommodation?

The Appellate Court rightly adverted to the fact that there is nothing on record to show that the petitioners have made efforts to find out alternative accommodation for their residence and could not get one. Reliance was placed on paragraph No. 14 of the defendants evidence which reads thus:

"14. It is true that the plaintiff has offered me an alternative accommodation of one room admeasuring 10 x 12 with balcony, with bathroom W.C. combined, in the same suit premises having separate entrance. I am not prepared to accept the offer of the plaintiff regarding the above said alternate accommodation. I tried to find out the alternative accommodation for my residence from June, 1980 near Pratap Talkies, S.T. Workshop, Near Highway at Murphy Company. It is not true to say that I did not search an alternate accommodation for my residence after receiving the notice from the plaintiff."

From the evidence it is obvious that no positive evidence has been adduced by the defendants that getting alternative premises in the same locality or the same city was impossible. If that be so, then applying the principle enunciated by the Apex Court in MANU/SC/0313/1978 : [1979]2SCR1 in the case of Ms. Bega Begum & others v. Abdul Ahad Khan (dead) by L.Rs. and others, the Court will have to answer the issue of comparative hardship against the petitioners-tenants and in favour of the respondent-plaintiff landlady.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 4457 of 1991

Decided On: 28.08.2002

 Gaur Chandra Basu and Anr. Vs. Ruchira Ashok Sonde and Anr.

Hon'ble Judges/Coram:

A.M. Khanwilkar, J.

Citation: 2002(1) ALLMR 312

Print Page

What factors are to be considered while deciding issue of comparative hardship in case tenancy dispute?

Sub-section (2) of Section 13 falls more appropriately within the domain of equitable or social justice. Section 13(2) obliges the Court, in spite of the finding as to reasonable and genuine requirement having been arrived at in favour of the landlord, to weigh in scales placing the hardship which would result to the landlord in case of denial of eviction in one balance pan and the hardship likely to be suffered by the tenant in case of his being evicted in the other and then find out judiciously which was the balance tilts. An empty truism cannot be hardship. A failure of the landlord to make out a case for eviction under Section 13(1)(g) is not a hardship to landlord; so also on a case for eviction under Section 13(1)(g) having been made out the fact that the tenant will be liable to be evicted is not by itself hardship to tenant. A mere wish or desire of the landlord to acquire possession over the tenancy premises cannot be said to be a bona fide and reasonable requirement. Requirement implies an element of necessity. The necessity is a necessity without regard to the degree of which it may be. For the purpose of Section 13(2) the degree of urgency or the intensity of felt-need assumes significance. It is a judicious process of finding out, as far as practicable, and then making a comparative measure of the two degree, which is involved in arriving at a finding on comparative hardship.

9. The family, the business background of the parties, the availability of accommodation with either parties or in the township, the extent of direness or pressing nature of the need for eviction as against the direness of amend or urge of the tenant to continue to occupy or cling to the tenancy premises, with reasons therefor, assume relevance. The Court may keep in view how the things would take shape in a reasonably forceable future in either event. The conduct of the parties, their mutual relationship may also be relevant. In spite of the availability of ground for eviction being legally sustainable, for the purpose of deciding the issue as to comparative hardship, the Court may take into consideration availability of such premises with the landlord, which though not necessarily alternative to the suit premises, may still be available to accommodate the proven requirement of the landlord. The fact that the tenant could have had shifted to other premises or has missed the opportunity of availing occupation of other premises or is likely to part with possession over other premises whereto his business can be or could have been shifted are all relevant factors for the purpose of Section 13(2) though may not be relevant for the purpose of Section 13(1)(g). These are illustrative factors, incapable of being listed fully and precisely, which enter into the thinking process leading to formulation of opinion on comparative hardship.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 321 of 1999

Decided On: 15.01.2003

Badrinarayan Chunilal Bhutada Vs. Govindram Ramgopal Mundada

Hon'ble Judges/Coram:

R.C. Lahoti and Brijesh Kumar, JJ.

Citation: AIR 2003 SC 2713

Print Page

Whether it is permissible for court to direct partial eviction of tenant?

 The learned counsel for the Petitioner placed reliance on one reported cases like MANU/SC/0362/1977 : AIR 1978 SC 413 [Rahman Jeo Wangnoo V/s Ram Chand and others]. In this case, the Apex Court has laid down that it is the duty of the Court to see whether partial eviction as contemplated under the provisions of Rent Control Act is possible and if there is such possibility the Court should direct partial eviction. Another case reported as MANU/SC/0022/2003 : AIR 2003 SC 2713 [Badrinarayan Chunilal Bhutada V/s Govindram Ramgopal Mundada] was cited in which it is laid down that the burden is on landlord to prove that he bonafidely requires the premises though the burden of proving that greater hardship will be caused to tenant lies on the tenant. In that case also, there was possibility of partial eviction and for consideration that possibility the matter was remanded by the Apex Court. There cannot be any dispute over this proposition made by the Apex Court. Another case relied is from Bombay Law Reporter, reported as MANU/MH/0262/1976 : 1976 (A.C.J.) 455 [Bhaskar Digambar Choudhary V/s Bhagwan Vishwanath Fadnis]. While deciding Writ Petition, this Court discussed the provision regarding partial eviction and it is observed that it is the duty of the Court to consider said issue and satisfy itself that no hardship will be caused either to the tenant or to the landlord by passing a decree in respect of part of premises only. Reliance was place on the case reported as MANU/MH/0201/2001 : 2001 (3) Bom.C.R. 400 [Hotel Rosalia P. Ltd. V/s Metro Hotels & Others], Bombay High Court. On facts, it was held that the requirement of the landlord was not genuine, bonafide

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Civil Revision Application No. 14 of 2014

Decided On: 02.12.2015

Mohanlal Bhikchand Rathi

Vs.

Ashok Trimbak Joshi

Hon'ble Judges/Coram:

T.V. Nalawade, J.

Citation: 2016 Bom Rent Cases 98

Print Page