Civil Appeal No 1006 of 1971 Appeal by special leave from the judgment and order dated the 23rd September 1970 of the Gujarat High Court in CRA Nos
1295 of 1966 49 and 50 of 1967
SK Dholakia and RC Bhatia for the Appellant
MV Goswami for the Respondent
The Judgment of the Court was delivered by SEN J
This appeal by special leave from a judgment of the Gujarat High Court involves the question of comparative hardship under section 132 of the Bombay Rent Hotel and Lodging House Rates Control Act 1947 for brevity the Act 
First as to the facts
The appellant plaintiff is a merchant who settled in Africa and was carrying on business in Kampala in 155 Uganda
Due to political upheaval in that country he along with his family migrated to India in 1964 and began living in a rented 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 Laxmishanker 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 plaintiff s alleged need under section 131 g of the Act were proved no decree for eviction could be passed because of comparative hardship by reason of section 132 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 he would be put to greater hardship as it would disrupt his business if he were evicted therefrom
The court of first instance as well as the District Judge in appeal upheld the plaintiff s claim under section 131 g of the Act and decreed the suit
In revision the High Court held that the finding of the courts below as to the plaintiff s need to be reasonable and bona fide being a finding of fact could not be interfered with under section 292 of the Act but non suited the plaintiff s on the ground of comparative hardship under section 132 of the Act
As 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 question of hardship under section 132 of the Act did not arise
They further held that the licensee 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 156 of his only source of livelihood for he was dependent 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 section 131 g of the Act can be passed and accordingly reversed the decree of the courts below Section 132 of the Act reads as follows 132 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 caused by passing the decree than by refusing to pass it
Where the Court is satisfied that no hardship would be caused either to the tenant or to the landlord by passing the decree in respect of a part of the premises the Court shall pass the decree in respect of such part only
It is plain upon the language of section 132 of the Act that it creates a further fetter on the power of the courts to pass a decree for eviction once it held in favour of the plaintiff on the issue of reasonable and bona fide requirement under section 131 g of the Act
The words No decree for eviction shall be passed make it incumbent on the court not to pass a decree on the ground specified under section 131 g of the Act unless it is satisfied as to the comparative hardship caused to the landlord and the tenant by passing a decree than by refusing it
In dealing with the question the court is only concerned with the hardship of the landlord and the tenant and not to a complete stranger
Under section 132 of the Act if there is greater hardship to the tenant the court should refrain from making an order for eviction under section 131 g of the Act
On the other hand if the making of an order of eviction under section 131 g of the Act would cause no such hardship the court has no jurisdiction but to pass such an order
The Legislature by enacting section 132 of the Act seeks to strike a just balance between the landlord and the tenant so that the order of eviction under section 131 g of the Act does not cause any hardship 157 to either side
The considerations that weigh in striking a just balance between the landlord and the tenant were indicated in a series of decisions of the Court of Appeal interpreting an analogous provision of the Rent and Mortgage Interest Restrictions Amendment Act 1933 c 32 section 31 Sched
I para h Sims vs Wilson Fowle vs Bell Smith vs Penny Chandler vs Strevett and Kelly vs Goodwin
One of the most important factors in considering the question of greater hardship is whether other reasonable accommodation is available to the landlord or the tenant
The court would have to put in the scale other circumstances which would tilt the balance of hardship on either side including financial means available to them for securing alternative accommodation either by purchase or by hiring one the nature and extent of the business or other requirement of residential accommodation as the case may be
It must however be observed that the existence of alternative accommodation on both sides is an important but not a decisive factors
On the issue of greater hardship the English courts have uniformly laid down that the burden of proof is on the tenant
We are inclined to the view that on the terms of section 132 of the Act the decision cannot turn on mere burden of proof but both the parties must lead evidence
The question whether or not there would be greater hardship caused to the tenant by passing the decree must necessarily depend on facts and circumstances of each case
Under section 292 of the Act as substituted by Gujarat Act 18 of 1965 although the High Court has a wider jurisdiction than the one exercisable under section 115 of the Code of Civil Procedure 1908 its revisional jurisdiction could only be exercised for a limited purpose with a view to satisfying itself that the decision was according to law
It cannot be said that the courts below failed to apply their mind to the requirements of section 132 of the Act as to comparative hardship or their finding was manifestly perverse or erroneous
That being so the High Court could not substitute its own finding for the one reached by the courts below on a reappraisal of the evidence
It is indeed difficult to appreciate the line of reasoning adopted by the High Court in non suiting the plaintiff
On the 158 admitted facts the plaintiff is a displaced person from Africa and was carrying on business in Kampala in Uganda
Due to political upheaval in that country in 1964 he along with his family migrated to India and began living in a rented house in Rajkot
He proved that he reasonably and bona fide required the suit premises under section 131 g of the Act
Admittedly he has the requisite experience and wherewithal to carry on business as it is on record that he has been carrying on business in Kampala for over 30 years
The mere fact that the plaintiff had gone back to Uganda for winding up his business there is not a circumstance against him
On the contrary it was indicative of his intention to start his business from the suit premises
As against this the defendant was not in actual possession of the suit premises but had placed one Labhshanker in occupation thereof who had a separate shop of his own and using the suit premises as a godown
Merely because the defendant who was aged and infirm and Labhshanker as his licensee and under an arrangement was paying a fixed amount to the defendant by way of maintenance did not imply that the passing of a decree under section 131 g of the Act would cause greater hardship to the defendant than to the plaintiff
Further the High Court failed to appreciate that perhaps old age and infirmity night have been relevant considerations in judging the issue of greater hardship under section 132 of the Act if the defendant were himself to carry on business from the suit premises and not where as here he had admittedly parted with possession in favour of a stranger
It was clearly in error in spelling out a new case for the defendant of the so called arrangement between himself and a stranger Labhshanker for which there is no foundation in the pleadings and which could not in law be pleaded in answer to the plaintiff s claim under section 131g of the Act
That apart during the pendency of the appeal the defendant Laxmishanker Tribhoyan having died the question of greater hardship under section 132 of the Act does not arise
For all these reasons the judgment and order of the Gujarat High Court are set aside and the judgment and decree passed by the courts below decreeing the plaintiff s suit for eviction under section 131 g of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 are restored with costs throughout
PBR Appeal allowed


Summary:
In his suit under section 131g of Bombay Rents Hotel and Lodging House Rates Control Act 1947 seeking the eviction of the respondent defendant from the suit premises the plaintiff appellant claimed that after having been displaced from Uganda on account of political upheaval in that country he intended to settle down in his native town and that therefore he reasonably and bonafide required the suit premises under the defendant s occupation for setting up his business
In replication the defendant claimed that he a man of slender means had built up his goodwill by running a business from the premises over the years and his eviction from the premises would put greater hardship on him than on the plaintiff
In support of his case he pleaded that section 132 of the Act makes it incumbent on the Court to refrain from passing an order of eviction under section 131g if it is satisfied that it causes greater hardship to the tenant than to the landlord
The court of first instance and in appeal the District Judge negatived the defendant s claim of comparative hardship to him because the defendant himself was not in actual possession of the premises but had in fact inducted another person who had his own business elsewhere in the town but used the suit premises as a mere godown
On appeal the High Court declined to pass an order of eviction under section 131g
It held that the defendant who in his old age was receiving some maintenance from the licensee for the use of the premises would be deprived of his only source of livelihood were he evicted from the premises and that secondly the fact that the plaintiff had gone back to Uganda showed that he was not sure whether to settle down in India or go back to Uganda
Allowing the appeal
 HELD Section 132 seeks to strike a just balance between the landlord and tenant
In considering the question of greater hardship the Court would have to take into account the circumstances which would tilt the balance of hardship either way
The existence of alternative accommodation on both sides is an important though not a decisive factor
On the terms of section 132 154 the question whether or not there would be greater hardship to the tenant by passing the decree cannot turn on mere burden of proof but the parties must lead evidence
157 A D The High Court erred in non suiting the plaintiff
There is enough evidence to show that he came from Uganda as a result of political upheaval in that country that he had considerable business experience in that country and that he had the requisite wherewithal to carry on business
In contrast the defendant was not in actual possession of the suit premises but had given possession of the premises to another person who had a separate shop of his own who only used the premises as his godown
The mere circumstance that the defendant was aged and infirm and that the licensee paid him some amount regularly would not imply that a decree under section 131g would cause greater hardship to the defendant
Section 132 would have been relevant had the defendant himself been in possession of the premises
In any event the defendant having died the question of greater hardship to him under section 132 would not arise
158 A F Although the jurisdiction exercisable by the High Court under the Act is wider than its jurisdiction under section 115 CPC its revisional jurisdiction under the Act could only be exercised for the limited purpose of satisfying itself that the decision of the Courts below was according to law
So long as the finding of the Courts below was not perverse or erroneous the High Court cannot on a reappraisal of the evidence substitute its own finding for the one reached by the Courts below
157 E F In dealing with the question of comparative hardship the Court is only concerned with the hardship of the landlord and the tenant but not of a complete stranger
157 F G