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Bona fide requirement of landlord

Prakash Yedhula ,
  29 November 2008       Share Bookmark

Court :
Supreme Court of India
Brief :
Rent control statute permitting eviction if landlord requires the building ``for his own use'' - Expression ``for his own use'' - Reiterated, covers requirement not only of the landlord but also his son, even if there has been a family partition during the pendency of the eviction proceedings whereby the son had become the landlord of the premises in question, as in the present case.
Citation :
(2008) 9 SCC 699
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5680 OF 2008
(Arising out of SLP)No.248 of 2007)


Ajit Singh & Anr. ..Appellants

Versus

Jit Ram & Anr. ...Respondents

JUDGMENT

TARUN CHATTERJEE, J.

1. Leave granted.

2. This is an appeal by special leave against the

judgment and final order dated 8th of February, 2006 of

the High Court of Punjab & Haryana at Chandigarh in

Civil Revision No. 4231 of 2004, whereby the High Court

in the exercise of its revisional power had interfered with

the findings of fact arrived at by the Appellate Authority

which was the final authority on fact and set aside the

order of the Appellate Authority, Chandigarh dated 5th of

August, 2004 directing the eviction of the respondent

only on the ground of subletting, which affirmed the
2


order of eviction passed by the Rent Controller on a

different ground namely, on the ground of sub-letting.

3. The appellants are father and son and the appellant

No.1 (son) is the owner of a shop being Shop No. 142,

Village Badheri, U.T. Chandigarh (hereinafter referred to

as "the said shop") on the basis of a family partition

dated 26th of August, 1998 and the appellant No.2 is the

landlord of the said shop. Prior to the family partition

dated 26th of August, 1998 the father, namely, appellant

No.2 was the owner and landlord of the said shop.

Respondent Nos.1 and 2 are also father and son. The

father, namely, respondent No.1 was inducted as a

tenant in respect of the said shop at a monthly rental of

Rs.500/- per month excluding the electricity charges.

The appellants filed an eviction petition against the

respondents for evicting them from the said shop inter

alia on the ground of sub- letting, for non payment of

rent and also for bonafide requirement for the personal

use and occupation of the appellant No.1. According to

the appellants, the respondent No.1 had sub-let the said
3


shop to respondent No.2, his own son, who is in

possession of the same and has been running the said

shop under the name of M/s. New Paris Furniture

without the consent of the appellants. It was further

alleged that the respondent No.1 neither paid the rent of

the said shop nor tendered the same as such was in

arrears of payment of rent since 1st of October, 1995 till

the filing of the application for eviction. The appellants

further alleged in the eviction petition that the said shop

was required for the personal use and occupation of the

appellant No.1. Accordingly, the appellants were

constrained to file the eviction petition against the

respondents in respect of the said shop when it was

found that in respect of the notice, the respondents had

failed to vacate and deliver peaceful possession of the

said shop to the appellants.

4. The respondents entered appearance and filed a

written statement inter alia contending that the eviction

petition against them was not maintainable and the

personal necessity of the said shop for the use and
4


occupation of the appellant No.1 was also not available

and that the Rent Controller had no jurisdiction to try

and entertain the eviction petition. Accordingly, the

respondents prayed for rejection of the eviction petition.

5. On the basis of the pleadings of the parties, as

noted herein above, the Rent Controller framed the

following issues :-

" (I) Whether the respondents were in arrears of rent

w.e.f. 01-10-95 and as such were liable to be evicted

from demised premises on the ground of non-payment of

rent?

(II) Whether the rent tendered by the respondent was

short and insufficient?

(III) Whether the said shop was sublet by the respondent

no. 1 to respondent no.2 without the consent of the

appellants?

(IV) Whether the appellant No1 for his personal use and

occupation required the said shop?

(V) Whether this court has no jurisdiction to try and

entertain the eviction petition?
5


(VI) Whether the ground of personal necessity was not

available to the appellants as the shop in dispute was

not a commercial property?

(VII) Whether the respondents are entitled for counter

claim as prayed for?

(VIII) Relief."

The Rent Controller decided issue Nos. 1, 2 and 7

together and held that the respondents were not

defaulters in payment of rent nor they were entitled to

get refund of any amount from the appellant as the case

made out by them that they have paid the appellant in

excess. This finding arrived at by the Rent Controller by

holding that the appellant had failed to produce any

credible and reliable evidence, accordingly, Issue Nos. 1,

2 and 7 were held against the appellant and, therefore,

no order for ejectment could be passed on the ground of

non-payment of rent. Issue No.4 and 6 were also taken

up together. Issue No.4 was decided against the

appellants and Issue No.6 was decided in favour of the

respondents. Accordingly, the Rent Controller held that
6


the ground for personal necessity was not made out and

therefore, on that issue, the appellants were not entitled

to evict the respondents from the said shop. So far as

Issue No.5 was concerned, before the Rent Controller the

said issue was not pressed. It may be mentioned here

that the Rent Controller, however, held that there was

relationship of landlord tenant between the parties as the

respondents in their examination-in-chief admitted that

the appellant No.2 was the owner of the said shop who

had given the same to the appellant No.1 by way of

family settlement dated 26th of August, 1998.

Accordingly, the Rent Controller held that the appellants

were entitled to evict the respondents only on the ground

of sub-letting as the said shop was sub-let by respondent

No.1 to respondent No.2 without the consent of the

appellants. Upon the issues being decided in the manner

indicated above, the Rent Controller finally passed the

order of eviction against the respondents in respect of the

said shop only on the ground of sub-letting.
7


6. Feeling aggrieved by the order of eviction passed by

the Rent Controller, the respondents filed an appeal

before the Appellate Authority under the East Punjab

Urban Rent Restriction Act, 1949 (in short the `Rent Act').

The Appellate Authority by its judgment and final order

dated 5th of August, 2004 allowed the appeal and also the

cross objections of the appellants and directed the

eviction of the respondents from the said shop on the

ground of personal necessity by the appellants.

7. Feeling aggrieved and dissatisfied with the order of

the Appellate Authority directing eviction on a finding

that the appellants required the said shop for their own

use and occupation, the respondents filed a civil revision

petition in the High Court which, by the impugned order,

was allowed and the High Court, as noted herein earlier,

in the exercise of its revisional power had set aside the

order of eviction passed by the Appellate Authority on the

ground that appellant No.2 was the landlord of the said

shop but they had failed to prove the ingredients as

required under Section 13(3)(a)(ii) of the Rent Act. It was
8


held by the High Court that the averments made in the

eviction petition would evidently show that such

averments were made only to the extent of the personal

requirement of the appellant No.1, Ajit Singh, but such

pleadings did not relate to the personal requirement of

the appellant No.2, who was also the landlord of the said

shop and, accordingly, in the absence of any pleading or

averment made in the eviction petition to the extent of

the personal requirement of the said shop of the

appellant No.2, the High Court held that the order of

eviction passed by the Appellate Authority could not be

sustained in law. Feeling aggrieved and dissatisfied with

the order of the High Court allowing the revision petition,

the appellants filed a special leave petition which on

grant of leave was heard in presence of the learned

counsel for the parties.

8. Having heard the learned counsel for the parties

and after examining the impugned order of the High

Court as well as the order of the appellate authority and

the Rent Controller and the materials on record including
9


the averments made by the appellants in their petition

for eviction, we are of the view that the High Court in the

exercise of its revisional power under the Rent Act was

not entitled to interfere with the findings of fact arrived at

by the Appellate Authority on the question of bonafide

requirement of the said shop at the instance of the

appellants. Since the findings arrived at by the Appellate

Authority on the question of bonafide requirement was

set aside by the High Court in the exercise of its

revisional power under the Rent Act and the eviction of

the respondents from the said shop therefore rests only

on the ground whether the pleadings made by the

appellants in their eviction petition would satisfy the

requirement of Section 13(3)(a)(ii) of the Rent Act. The

pleadings made by the appellants in the eviction petition

must therefore be looked into in depth and in detail.

9. It is an admitted position that the said shop is at

Village Badheri, Chandigarh. Since the eviction granted

by the appellate authority and reversed by the High

Court in revision was on bonafide requirement of the
10


appellants, it will be fit and proper that Section 13(3)(a)

(ii) of the Rent Act should now be referred to, which runs

as under :

"13. Eviction of tenant -

(3)(a) A landlord may apply to the controller for an

order directing the tenant to put the landlord in

possession;

(i).......................................

(ii) in the case of non-residential building or rented

land, if

(a) he requires it for his own use;

(b) he is not occupying in the urban area

concerned for the purpose of his business any

other such building or rented land as the case

may be; and

(c) he has not vacated such a building or rented

land without sufficient cause after the

commencement of this Act, in the urban area

concerned;"
11


A plain reading of the aforesaid provision, namely,

Section 13(3)(a)(ii) of the Rent Act would show that in

order to get an order of eviction on the aforesaid ground,

the landlord had to aver and prove that the landlord

required the said shop for his own use as the said shop

was a non-residential building. In Joginder Pal vs.

Naval Kishore Behal [(2002) 5 SCC 397], this Court

considered the aforesaid provision in detail and

interpreted the words "his own use" in regard to a non-

residential building. In that view of the matter, it would

be appropriate for us to refer to the aforesaid

consideration by this Court in the aforesaid decision

which crystallised the question as under :

" (1) The words "for his own use" as occurring in

Section 13(3)(a)(ii) of the Act must receive a wide,

liberal and useful meaning rather than a strict or

narrow construction.

(2)The expression - landlord requires for "his own

use" is not confined in its meaning to actual

physical user by the landlord personally. The
12


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 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.

(3)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.
13


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.

(4) While casting its judicial verdict, the court shall

adopt a practical and meaningful approach

guided by the realities of life.

(5)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)."
14


10. This judgment is the answer to the question posed

before us. Here also, the requirement is made for the

son who is admittedly the owner of the shop room and

also the landlord, after the said shop was, by a family

partition dated 26th of August, 1998, given to the son

who also became the landlord after family partition and

also he became the owner of the said shop by such

family partition.

11. From the aforesaid decision of this Court, 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 words used in the Section, i.e. "for his

own use" in reference to a landlord. Therefore, if "his own

use" has been interpreted by this Court in the above-said

manner, then the requirements as laid down in Section

13(3)(a)(ii)(b) and (c) of the Act has to be interpreted in

the same manner to hold that (a) the son of the landlord

has to plead in the eviction petition that, (b) he is not

occupying in the urban area concerned for the purpose
15


of his business any other such building or rented land as

the case may be; and (c) he has not vacated such a

building or rented land without sufficient cause after the

commencement of the Rent Act, in the urban area

concerned.

12. In the present case, it was pleaded and proved that

the said shop was required for the use of the son and,

therefore, the pleadings of the son in regard to the

aforesaid requirement, being mandatory, were satisfied,

otherwise it would make the requirement laid down

under the said provisions nugatory in view of the

interpretation given by this Court in the aforesaid

decision, with which we are in full agreement.

13. Applying the principles as laid down by the

aforesaid decision namely, Joginder Pal (Supra) which

also deals with commercial premises, as in the present

case, we are of the view that a plain reading of Section 13

(3)(a)(ii) (a) to (c) in conjunction with Section 13(3)(a)(iv)(a)

& (b) of the Rent Act, would make it ample clear when

the said shop is being got vacated on the ground of user
16


for the son of the landlord, then in the eviction petition,

the son (appellant No. 1) must plead that he was not

occupying any other building and that he had not

vacated such a building without sufficient cause. It is

well settled that while interpreting a provision of a

statute, the same has to be interpreted taking into

consideration the other provisions of the same statute.

In the aforesaid decision, namely, Joginder Pal (Supra),

this Court has clearly laid down that a balanced

interpretation has to be given in regard to the rent

legislation and the provisions itself contemplate a case in

regard to user of non-residential building by a

professional and the statute itself lays down requirement

in that regard within the same requirements will have to

be read in regard to shop required to be used by the son

of the landlord for business purpose. Accordingly, we

are of the view that the impugned decision of the High

Court is in direct conflict with the Judgment of this

Court in Joginder Singh's case (supra) and therefore,

the said Judgment cannot be sustained.
17


14. There is another aspect of this matter. While

making an interpretation of Section 13 of the Act, the

High Court did not deal with Section 13 of the Rent Act

completely but it dealt with only that part of Section 13

which deals with residential building only and has not

dealt with portion of Section 13, which deals with non-

residential building. It is true that while reversing the

order of eviction passed by the Appellate Authority, the

High Court in the impugned order had also taken note of

the decision in Joginder Pal's case (supra), but in view

of our discussions made herein above, the ratio of the

aforesaid decision was not applied in the present case.

There is yet another angle in which the High Court was

not justified in interfering with the order of eviction

passed by the Appellate Authority which was the final

court of fact. The Appellate Authority while directing

eviction to the respondents considered the oral and

documentary evidence on record and also the pleadings

of the parties and then came to a finding that the

appellants had successfully averred and proved their
18


case of personal requirement as made out by them under

Section 13(3)(a)(ii) of the Rent Act. It is true that the High

Court in its revisional jurisdiction could have interfered

with such findings of fact arrived at by the Appellate

Authority, if the High Court had found that the findings

of the Appellate Authority on the question of bonafide

requirement were either perverse or arbitrary. On a close

examination of the impugned order of the High Court, we

do not find any ground to hold that the findings of fact,

regarding the bonafide requirement of the appellants,

were perverse or arbitrary or the pleadings made by the

appellants in their eviction petition could be said to be

not in conformity with the requirement of Section 13(3)(a)

(ii) of the Rent Act. Therefore, we are also of the view that

the High Court was in error in interfering with the order

of eviction passed by the Appellate Authority on the

ground of bonafide requirement.

15. At this stage, an argument advanced by the learned

counsel for the respondents may be considered. The

learned counsel for the respondents relied on a decision
19


of this Court in Hasmat Rai & Anr. Vs. Raghunath

Prasad [(1981) 3 SCC 103] and contended that a portion

of the demised premises may also be used as a

residential premises, which cannot be considered to be a

commercial premises for the purpose of evicting the

tenant under Section 13(3)(a)(ii) of the Rent Act. We are

unable to accept this submission of the learned counsel

for the respondents, for the simple reasons, first, the

decision in Hasmat Rai's case (supra) was based on

M.P. Accommodation Control Act, 1961 which confers on

the authority to pass order of eviction on the ground of

bonafide requirement on a different wording from the

words used in East Punjab Urban Rent Registration Act,

1949. Furthermore, it may be reiterated that in order to

obtain an order of eviction under Section 13(3)(a)(ii) of

the Rent Act, the landlord has to prove, as noted herein

earlier, that he required the said shop for his own use

and the said shop was a non-residential building. In this

case, admittedly the said shop is used for commercial

purposes and therefore there was no question of the said
20


shop being used as residential purposes or being used

for a portion of residential purposes for residential use.

That being the position, the aforesaid decision, in our

view, is clearly distinguishable. Accordingly, the above

decision of this court is of no help to the respondents.

16. For the reasons aforesaid, the impugned order of

the High Court is hereby set aside and the order of the

Appellate Authority is restored and the eviction petition

filed by the appellants stands allowed.

17. Considering the facts and circumstances of the case

and considering the facts that the respondents are

using the said shop for commercial purposes and

have been carrying on business in the same, we

grant the respondents 9 months' time to vacate the

same, subject to filing the usual undertaking in this

Court within two weeks from this date. Accordingly,

the appeal is allowed. There will be no order as to

costs.



.........................J.
21


[Tarun Chatterjee]



New Delhi; .........................J.
September 16, 2008. [Aftab Alam]
 
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