Question of relative hardship not decided prior to passing order of eviction.

1. The tenant who suffered order of eviction before the authorities below has filed the C.R.P.No.563 of 1997.

2. The landlady filed R.CO.P.No.479 of 1992 on the file of the learned Rent Controller /XVI Judge, Court of Small Causes, Madras under Sections 10(2)(l) and 10(3)

(c) of the Act 18 of 1960. According to the landlady she had leased out the ground floor bearing Door No.66 Scheme Road, Kamdar Nagar, Madras-34 to the respondent/tenant, except in room both attached on a monthly rent of Rs. 1,600. According to the landlady the tenant has not paid the rent from July 1991. In para 5 of the petition, the landlady has stated that since her husband had fallen down and had a fracture in his hip, and he was in the hospital for treatment, he requires periodical checkup in the hospital, and so the petitioner wants to settle at Madras. For that purpose, the above eviction petition was filed. The tenant contested the said petition by filing a counter wherein he has stated that he has paid the arrears and there was no arrears at all. It is the specific case of the tenant that the requirement of the building for additional accommodation is not bona fide.

3. The Rent Controller in his order dated 18. 1993 disbelieved the case of the landlady that the tenant committed wilful default in payment of rent but ordered eviction on the ground of additional accommodation. Aggrieved against the same the tenant filed Appeal in R.C.A.No.1050 of 1993 on the file of the learned Appellate Authority/VII Judge, Court of Small Causes, Madras, who concurred with the findings of the Rent Controller regarding additional accommodation and confirmed the order of eviction. Aggrieved against the same, the tenant has filed the above C.R.P.No.563 of 1997.

.4. In the eviction petition filed by the landlady it is only stated that "the petitioners husband has fallen and had a fracture in his hip and he was in the hospital for treatment. As he requires periodical check-up in the hospital, the petitioner has to settle at Madras and for the said purpose the petitioner requires the said portion as additional accommodation bona fide". Admittedly, the landlady is in possession of one room bath attached in the said premises. If she wants to settle at Madras and reside in the said premises that one room both attached cannot be sufficient. The Rent Controller proceeds on the basis that the premises in question is required for the studies of the landladys daughter, which is not the case of the petitioner. On the basis of the above pleadings, the learned counsel appearing for the petitioner has submitted that for maintaining the petition under Section 10(3)(c) of the Act, the relative hardship should be pleaded and established. The relevant provision under Section 10(3)(c) of the Act reads as follows:-

."Provided that, in the case of an application under Clause (c), the Controller shall reject the application if he is satisfied that the hardship which may be caused to the tenant by granting it will outweigh the advantage to the landlord"

5. In this case, admittedly, there is no pleading nor evidence to prove that the hardship of the tenant if eviction is ordered will outweigh the advantage to the landlord.

.6. Arguing contra, the learned counsel appearing for the respondent has submitted that though it is not pleaded, it can be taken note of the fact that one room which is in possession of the landlady is not enough to her needs since she wants to settle with her family members and that the tenant can get any residential premises in the area if he is vacated. According to him, the tenant has not given any evidence regarding his hardship. In Hiralal Moolchand Doshi v. Barot Ramanlal Ranchhoddas, AIR 1993 S.C. 1449, the Apex Court has held as follows:-

."It was thus not necessary to plead in the plaint itself. Often the parties at the stage of recording of evidence of bona fide personal requirement also lead evidence as to the comparative hardship of the lan