VERY IMPORTANT POINT
Bona fide need ground under Section 13(1)(g) of Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 is available for both residential and non-residential occupation and is subject to Section 13(2) on comparative hardship. To judge Section 13(2) Court can order partial eviction in a particular case to meet the ends of justice.

Headnote:Bombay Rents Hotel and Lodging House Rates (Control) Act, 1947-Sections 13(1)(g) read with 13(2)-Eviction on ground of reasonable and bona fide requirement of western wing of ground floor for the business of two sons of the appellant-Appellate Court and High Court found the need established but found against landlord on comparative hardship-Appeal to Supreme Court-How to judge comparative hardship?-Burden on tenant -Partial eviction can be considered-No specific finding given on that aspect -Case remanded to appellate Court after framing two specific issues for giving specific finding to judge comparative hardship-Case law referred.
       Held : The finding as to genuine requirement was arrived at by the Appellate Court and upheld by the High Court and rightly so in our opinion. The only question which now survives for decision is the exercise of discretion under sub-section (2) of Section 13 of the Act. (Para 5)
       In spite of a ground for eviction under Section 13(1)(g) having been made out, the Court may deny the relief of eviction if the issue as to comparative hardship is answered against the landlord and in favour of the tenant. Thus in a way, Section 13(2) acts as a proviso to Section 13(1)(g); the former having an overriding effect on the latter. The burden of proving availability of ground for eviction under Section 13(1)(g) lies on the landlord; the burden of proving greater hardship so as to deprive the landlord of his established right to seek eviction lies on the tenant. (Para 7)
       The provisions of the Act do not bar a partial eviction being ordered-rather contemplate a partial eviction specifically- which would of course depend on answer to the question-whether it would be enough to dislodge the tenant from only a part of the premises in his possession, and to what extent, to satisfy the proved requirement of the landlord associated with consideration of comparative hardship? (Para 10)
       The Act does not lay down any guidelines or relevant factors based whereon the question of comparative hardship is to be decided. A slight indication is given in the first para of Section 13(2) that regard must be had to (i) all the circumstances of the case, (ii) including the question whether other reasonable accommodation is available for the landlord or the tenant. The expression other reasonable accommodation as employed here does not mean an accommodation suitable in all respects as the suit accommodation is. The Legislature has chosen it appropriate to leave the determination of issue on sound discretion of the Court. (Para 11)
       The learned counsel for the appellant submitted that the statutory obligation cast on the Court to weigh and assess the comparative hardship has not been properly discharged and that has caused prejudice to the appellant. It was pointed out that the burden which lay on the tenant has been wrongly cast on the appellant as the High Court has expressed during the course of its judgment that the appellant has adduced no evidence to show that shops were available in the locality where the tenant could shift on vacating the suit premises. It was also pointed o ut that the Appellate Court and the High Court have completely failed to examine whether at least a partial eviction from the tenancy premises could have been ordered. It has come in the evidence that some portions is the ground floor are being used by the respondent as godown and for storing waste material, the area whereof is approximately 300 sq. feet as per the site plan available on record. In view of the case for eviction under Section 13(1)(g) having been made out by the landlord, if the tenant would have been directed to be evicted at least from the portions shown as godown and waste material in the plan which portion of the premises has not been in use of business of the tenant, the tenant would not have suffered any prejudice or hardship or at least not much thereof. We find merit in the submission so made. (Para 14)
       Held thereafter : In the peculiar facts and circumstances of this case, we are inclined to have a specific finding being arrived at by the Appellate Court to meet the ends of justice. (Para 15)
       Held consequently : The appeal is partly allowed. The judgment and decree of the Appellate Court and upheld by the High Court, to the extent to which eviction from the non-residential premises (i.e. ground floor) has been denied to the appellant, is set aside. The case is sent back to the Appellate Court. The Appellate Court shall frame the following issues:-
        (i) Whether the defendant-tenant would suffer greater hardship in the event of being evicted than the hardship which the plaintiff- landlord would suffer in the event of eviction being denied?
        (ii) Whether in the facts and circumstances of the case, a partial eviction would meet the ends of justice and, if so, to what extent? (Para 16)

JUDGMENT

R.C. Lahoti, J.-A decree for eviction in a landlord-tenant litigation upholding availability of ground for eviction under Section 13(1)(g) of The Bombay Rents Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter the Act for short) but denying the relief of eviction based on the finding on issue as to comparative hardship within the meaning of Section 13(2) of the Act is under challenge in this appeal by special leave filed by the appellant-landlord.

2. The suit premises are situated in the city of Pune and are described in city survey as No. 573, Ravivarpet. The premises are the part of a building having two wings and three floors, i.e. the ground floor and two upper floors. The eastern wing is in the occupation of the landlord-appellant. The ground floor is used as a shop. The first and the second floor are used as residence for the appellant and his family. The western wing is in the occupation of the tenant-respondent who runs a shop on the ground floor and resides with his family in the upper two floors. The appellant s family consists of the appellant and his wife and four married sons, i.e. five couples who live as a joint family. They have nine grandchildren, as stated at the Bar during the course of hearing. The suit property was purchased by the appellant in the year 1973. In the year 1982 the landlord initiated proceedings in the court of Small Causes, Pune for recovery of possession over the premises as also for recovery of arrears of rent and education cess. The grounds on which the eviction was sought for were (i) default in payment of arrears, (ii) misuse of the tenancy premises, and (iii) reasonable and bona fide requirement of the premises by the landlord for occupation by himself and his family members as residence in the upper floors and for the business of two sons of the appellant on the ground floor. The Trial Court held against the appellant on all the three grounds for eviction. In an appeal preferred by the landlord the Appellant Court too held against the appellant, upholding the findings of the Trial Court, so far as the grounds of default in payment of arrears and misuse of the tenancy premises is concerned and on both the grounds confirmed the findings of trial court. On the ground of requirement, the Appellate Court held that, so far as the upper two floors are concerned, reasonable and bona fide requirement of the landlord for occupation by himself and his family members is made out and that the appellant would suffer greater hardship if the eviction is denied than the hardship which the tenant would suffer in the event of eviction being ordered. So far as the ground floor of the tenancy premises is concerned, the Appellate Court held that the reasonable and bona fide requirement of the landlord for running the business of his two sons in the tenancy premises is made out but then the tenant would suffer greater hardship if evicted from the ground floor compared with the hardship which the landlord would suffer in the event of the eviction being denied. On these findings, the Appellate Court directed a decree for eviction being passed from the residential portion of the tenancy premises, i.e. the first and second floors but denied the eviction so far as the non-residential part of the tenancy premises, i.e. the ground floor is concerned.

3. Feeling aggrieved by the decree of the Appellate Court, both the parties filed writ petitions in the High Court. The High Court has dismissed both the writ petitions and refused to interfere with the decree of the Appellate Court. So far as the decree for eviction from the residential part of the premises is concerned, the same has achieved finality in view of the tenant-respondent having not appealed thereagainst. The landlord has persisted in his claim for eviction from non-residential part of the tenancy premises. This appeal by special leave is, therefore, confined to the issue whether the decree for eviction should have been passed agains

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2003 Supreme(SC) 47

Cases Referred (1)