Judgment

SEN, J.:- This appeal, by special leave from a judgment of the Gujarat High Court, involves the question of comparative hardship under S. 13 (2) of the Bombay Rents, Hotel and Lodging House Rates Control Act. 1947 brevity the Act.

2. First as to the facts. The appellant-plaintiff is a merchant who was settled in Africa and was carrying an business in Kampala in Uganda. Due to political upheaval in that country, he along with his family migrated to India in 1964 and began living in a rental house at Rajkot, where he owns a building known as "Trivedi House. On September 21, 1964 he brought a suit for eviction of the respondent-defendant. Laxmishankar Tribhoyan from the suit premises, which consists of a shop on the ground floor of the said building on the ground that he reasonably and bona fide required the suit premises for starting his business. The defendant denied the claim and pleaded that the plaintiff did not want to settle down at Rajkot and had already gone back to Africa and that, in any event, even if the plaintiffs alleged need under S. 13 (1) (g) of the Act were proved, no decree for eviction could be passed because of comparative hardship by reason of S. 13 (2) of the Act. It was alleged that the defendant was a man of slender means and had built up a good-will by running his business from the suit premises over the years and be would be put to greater hardship as it would disrupt his business if he were evicted therefrom.

3. The court of first instance as well as the District Judge in appeal upheld the plaintiffs claim under S. 13 (1) (g) of the Act and decreed the suit. In revision, the High Court held that the finding of the courts below as to the plaintiffs need to be reasonable and bona fide being a finding of fact could not be interfered with under S. 29 (2) of the Act, but non-suited the plaintiff on the ground of comparative hardship under S. 13 (2) of the Act. An regards comparative hardship, both the courts below held that the defendant was not in actual possession of the suit premises, but had inducted one Labhshanker as his licensee, who was in occupation thereof, and, therefore the question of hardship under S. 13 (2) of the Act did not arise. They further held that the lincesee, Labhshanker, owned a separate shop of his own from where he was carrying on his business and had taken the suit premises from the defendant for using it as a godown and, therefore, there was no question of any hardship to him as he would be put to the inconvenience of shifting his goods to his own shop. The High Court, however, differed from the courts below and held that the defendant would be put to greater hardship. In coming to that conclusion the High Court observes: "Although the defendant Laxmishankar Tribhoyan was not in actual occupation of the shop, the aforesaid Labhshanker was running the business on his behalf and paying the defendant a fixed amount of maintenance because he was aged and infirm and also because he was his uncle and, therefore, if we were to confirm the decree for eviction of the courts below, the defendant would be deprived of his only source of livelihood for he was dependant on Labhshanker who was running his business from the suit premises." As regards the plaintiff, the High Court was pleased to observe: "Now so far as the plaintiff is concerned, he has his one leg in Rajkot and another in Africa. Therefore, there is still uncertainty of his settling down in Rajkot. In that view of the matter it held that no decree for eviction under S. 13 (1) (g) of the Act can be passed and accordingly reversed the decree of the courts below.

4. Section 13 (2) of the Act reads as follows :

" 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, great hardship would be