Case: Hasmat Rai &amp; Anr Vs. Raghunath Prasad

portion of the building in which he can start his business as Chemists and Druggists he is not entitled to an inch of an extra space under Section 12(1)(f) of the Act. 18. Respondent-landlord also sought possession on the ground set out in Section 12(1)(h) which reads as under :That the accommodation is required bona fide by the landlord for the purpose of building or re-building or making thereto any substantial additions or alterations and that such building or re-building or alterations cannot be carried out without the accommodation being vacated. 19. In order to obtain possession under Section 12(1)(h) the landlord again has to establish his bona fide requirement of the accommodation in possession of the tenant for the purpose of building or re-building or making thereto any substantial additions or alterations and must further show that such building or re-building or alterations cannot be carried out without the accommodation being vacated. The case of the landlord on this point is that he wants possession of the whole of the building including the suit premises and he has Rs. 8000 in a fixed deposit account and that as the building is in a dilapidated condition, he would reconstruct the same and use it for himself both for residence and starting his business. 20. If landlord acquires possession under Section 12(1)(h), Section 18 imposes corresponding obligation which reads as under : "18. Recovery of possession for repairs and re-building and re-entry. - (1) In making any order on the grounds specified in clause (g) or clause (h) of sub-section (1) of Section 12, the court shall ascertain from the tenant whether he elects to be placed in occupation of the accommodation or part thereof from which he is to be evicted and, if the tenant so elects, shall record the fact of the election in the order and specify therein the date on or before which he shall deliver possession so as to enable the landlord to commence the work of repairs or building or re-building, as the case may be." The courts declined to grant any relief to the tenant under Section 18 on the ground that as the landlords requirement is a composite one, the tenant is not entitled to be reinducted in the building that may be reconstructed by the landlord after obtaining possession of the same. Now once it is held that the landlord is not entitled to possession for his residence and he has more than enough accommodation in his possession for carrying on his business, the composite requirement disappears. Landlords case will, therefore, have to be exclusively examined in the context of Section 12(1)(h).21. Two contentions were urged on behalf of the appellant to negative the case of the landlord in this behalf; one that the building is not in a dilapidated condition and secondly it can be repaired without vacating the premises. As all the courts have concurrently found that the building is in a dilapidated condition, this finding is entitled to respect and it is not proper for us to interfere with the same. The question would however be whether the landlord wants to reconstruct the demised portion of the premises even though he is not entitled to acquire possession of the same for his use and that he would be under an obligation to reinduct the tenant after its construction. The further question is whether the landlord is interested in reconstructing the whole building. It was alternatively contended that no attempt is made to find out whether the landlord would be in a position to reconstruct that part of the building which has come in his possession once he is not in a position to acquire possession of the demised premises for his own use. This situation calls for a fresh examination of the case of the landlord under Section 12(1)(h). If landlord is to be awarded possession under Section 12(1)(h) on the footing that, that is the only ground on which he can seek possession, it will have to be found out after giving opportunity to the landlord to prove whether he is interested in re-building that portion of the building which is occupied by the appellant and further the court should give necessary direction under Section 18. In that event the court will have also to ascertain whether the portion which is now in possession of the landlord and which he may be interested in reconstructing can be reconstructed without the tenant vacating the demised premises. As the whole foundation of the landlords case of composite requirement disappears the matter has to be examined afresh on the footing that the landlord has come to the court for possession under Section 12(1)(h) only and if he succeeds in his prayer for possession on the ground mentioned in Section 12(1)(h) it would be necessary for the court to give appropriate direction under Section 18 of the Act. As the matter has not been examined from this angle by any court it has become inevitable, even though the litigation is pending for a long time, to remit the case for examination of this aspect. The question is whether the remand should be to the first appellate Court or to the trial Court. As the first appellate Court is the fact finding court, in our opinion it would be appropriate for us to remit the case, after setting aside the decree of the first appellate Court as well as the High Court, to the first appellate Court to ascertain :(i) whether the landlord is interested in reconstructing that portion of the building which is in possession of the tenant as demised premises; (ii) whether the landlord would be in a position to reconstruct the building in his possession without the tenant being required to vacate the demised premises; and (iii) if the first two queries are answered in favour of the landlord, what should be the appropriate directions to be given in favour of the tenant as enjoined by Section 18 ? 22.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]10. Section 12 starts with a non obstante clause thereby curtailing the right of the landlord to seek eviction of the tenant which he might have under any other law and the right of eviction is made subject to the overriding provision of Section 12. It is thus an enabling section. In order to avail of the benefit conferred by Section 12 to seek eviction of the tenant the landlord must satisfy the essential ingredients of the section. The landlord in this case seeks eviction of the tenant under Section 12(1)(f). He must, therefore, establish (i) that he requires bona fide possession of a building let for non-residential purpose for continuing or starting his business; and (ii) that he has no other reasonably suitable non-residential accommodation of his own in his occupation in the city or town concerned. The burden to establish both the requirements of Section 12(1)(f) is squarely on the landlord. And before an allegation of fact to obtain the relief required is permitted to be proved, the law of pleadings requires that such facts have to be alleged and must be put in issue. Ordinarily, therefore, when a landlord seeks eviction under Section 12(1)(f) the court after satisfying itself that there are proper pleadings must frame two issues namely (i) whether the plaintiff-landlord proves that he bona fide requires possession of a building let to the tenant for non-residential purpose for continuing or starting his business, and (ii) whether he proves that he has no other reasonably suitable non-residential accommodation of his own in the city or town concerned. Without elaborating we must notice a well-established proposition that any amount of proof offered without pleadings is generally of no relevance12. In the second appeal in the High Court the defendant-appellant moved an application under Order VI, Rule 17, for amendment of the written statement for elaborating what was already stated that not only the decree obtained by the plaintiff against the adjoining tenant of the same building namely firm of M/s. Goraldas Parmanand had become final but the plaintiff in execution of the decree way back in 1972 obtained actual possession of the whole of the area occupied by that firm and that forms major portion of the whole building. This application, though, in our opinion, (sic) to be wholly superfluous in view of the pleadings hereinbefore set out and in view of the fact that the burden of proof of establishing that the landlord was not in possession of a reasonably suitable accommodation in the same town was on the plaintiff was rejected on untenable ground that the defendant-appellant was guilty of delay and laches. This application for amendment deserves to be granted, and we grant the same. What is its impact ? Even while rejecting the application the High Court in terms observed in para 4 of its judgment as under :"Adjoining portion was vacated by firm Goraldas Parmanand as far back as in the year 1972".The High Court thus had before it a fact beyond dispute and beyond controversy that the major portion of the building was vacated by the adjoining tenant way back in 1972. This was an uncontroverted fact. Therefore remand on this point is an exercise in futility because the fact alleged in the application for amendment is admitted. After rejecting the application on wholly untenable ground the High Court in 1976 affirmed the finding wholly contrary to record as available at that stage that the plaintiff-landlord had no other reasonably suitable non-residential accommodation of his own in his occupation in the city even though on landlords own admission he had acquired vacant possession of a major portion of the building let for non-residential purpose as far back as 1972. In the course of hearing we were repeatedly told that the finding of facts are sacrosanct. The finding of fact ignoring in controvertible admitted position which would non-suit the plaintiff if upheld would be travesty of justice. The burden being on the plaintiff to show that he had no other reasonably suitable accommodation for carrying on the business which he wanted to start in the suit premises, it was for the plaintiff to show that he had not acquired possession from firm Goraldas Parmanand. Alternatively the plaintiff should have shown that the said adjacent accommodation was not reasonably suitable for the business he wanted to start. He had done neither. On the contrary plaintiff has admittedly adopted a position in the plaint that he not only wanted suit premises but also the adjoining premises of which he had obtained possession for starting his business. In such a situation if the High Court had kept in view that the plaintiff had already with him viz. possession of a building having 18 feet frontage on the main road and 90 feet depth plus portion at the back of the suit premises in his possession it would have to come to an affirmative conclusion that the plaintiff had sufficient accommodation for starting his business as a Chemists and Druggists. It was nowhere pointed out by the plaintiff that the shop of Chemists and Druggists or a medicine shop would require frontage of more than 18 feet. 18 feet frontage on a main road in a city like Bilaspur is sufficiently attractive and accommodating. The depth of the shop as given out to us being 90 feet; therefore landlord had now in his possession shop admeasuring 18 feet X 90 feet plus the area of 7 feet X 90 feet at the back of the suit premises being part of the same building. Would this not provide more than ample accommodation to the plaintiff to start his business as a Chemists and Druggists ? Not one word had been said that the accommodation which is already in possession of the plaintiff is neither suitable nor reasonably suitable nor sufficient for starting his business. In fact the very stand of plaintiff-landlord as accepted by the High Court that some portion at the back would be utilised by landlord for residence would affirmatively establish that landlord has more than enough vacant accommodation in possession for starting his businessThere is an error apparent on the face of the record inasmuch as when the High Court was faced with a dilemma whether the landlord required the whole of the building including demised premises now in possession of the appellant-tenant for starting his business of Chemists and Druggists and when the High Court had before it an indisputable fact that the respondent-landlord has obtained vacant possession of a major portion of the building which was in possession of M/s. Goraldas Parmanand, was it necessary for him to have any additional accommodation ? The High Court got over this dilemma by observing and by affirming the finding of the subordinate courts that the remaining portion of the premises would be used by the landlord for his residence and even though the portion utilised for the purpose of running the business would be smaller compared to the one to be utilized for the residence it would still not be violative of sub-section (7) of Section 12 because such a composite user would not radically change the purpose for which the accommodation was let. This finding is contrary to record and pleadings. Minutely scanning the plaint presented by the landlord there is not the slightest suggestion that he needs any accommodation for his residence. He has not even stated whether at present he is residing in some place of his own though he claimed to be residing in the same town. He does not say whether he is under any obligation to surrender that premises. Section 12(1)(e) specifically provides for a landlord obtaining possession of a building let for residential purposes if he bona fide requires the same for his own use and occupation. But there is an additional condition he must fulfill namely he must further show that he has no other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned. Utter silence of the landlord on this point would be a compelling circumstance for the court not to go in search for some imaginary requirement of the landlord of accommodation for his residence. In the context of these facts the trial Court and the first appellate Court committed a manifest error apparent on the record by upholding the plaintiffs case by awarding possession also on the ground neither pleaded nor suggested. The landlord must have been quite aware that he cannot obtain possession of any accommodation for his residence. Therefore, the finding of the High Court and the courts subordinate to it that the respondent-landlord requires possession of the whole of the building including the one occupied by the tenant for starting his business as Chemists and Druggists as also for his residence is vitiated beyond repair. Once impermissible approach to the facts of the case on hand is avoided although facts found by the courts are accepted as sacrosanct yet in view of the incontrovertible position that emerges from the evidence itself that the landlord has acquired major portion of the building in which he can start his business as Chemists and Druggists he is not entitled to an inch of an extra space under Section 12(1)(f) of the ActThere is an error apparent on the face of the record inasmuch as when the High Court was faced with a dilemma whether the landlord required the whole of the building including demised premises now in possession of the appellant-tenant for starting his business of Chemists and Druggists and when the High Court had before it an indisputable fact that the respondent-landlord has obtained vacant possession of a major portion of the building which was in possession of M/s. Goraldas Parmanand, was it necessary for him to have any additional accommodation ? The High Court got over this dilemma by observing and by affirming the finding of the subordinate courts that the remaining portion of the premises would be used by the landlord for his residence and even though the portion utilised for the purpose of running the business would be smaller compared to the one to be utilized for the residence it would still not be violative of sub-section (7) of Section 12 because such a composite user would not radically change the purpose for which the accommodation was let. This finding is contrary to record and pleadings. Minutely scanning the plaint presented by the landlord there is not the slightest suggestion that he needs any accommodation for his residence. He has not even stated whether at present he is residing in some place of his own though he claimed to be residing in the same town. He does not say whether he is under any obligation to surrender that premises. Section 12(1)(e) specifically provides for a landlord obtaining possession of a building let for residential purposes if he bona fide requires the same for his own use and occupation. But there is an additional condition he must fulfill namely he must further show that he has no other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned. Utter silence of the landlord on this point would be a compelling circumstance for the court not to go in search for some imaginary requirement of the landlord of accommodation for his residence. In the context of these facts the trial Court and the first appellate Court committed a manifest error apparent on the record by upholding the plaintiffs case by awarding possession also on the ground neither pleaded nor suggested. The landlord must have been quite aware that he cannot obtain possession of any accommodation for his residence. Therefore, the finding of the High Court and the courts subordinate to it that the respondent-landlord requires possession of the whole of the building including the one occupied by the tenant for starting his business as Chemists and Druggists as also for his residence is vitiated beyond repair. Once impermissible approach to the facts of the case on hand is avoided although facts found by the courts are accepted as sacrosanct yet in view of the incontrovertible position that emerges from the evidence itself that the landlord has acquired major portion of the building in which he can start his business as Chemists and Druggists he is not entitled to an inch of an extra space under Section 12(1)(f) of the Act7. The landlord in this case seeks eviction of the tenant from a building let forl purpose. He can obtain possession either for continuing or starting his business. He was a student at the relevant time. He appeared to have completed his education thereafter. It is stated in the plaint unambiguously that he wanted start business by opening a medicine shop. In other words, he wanted to start a Chemists and Druggists shop. He must, therefore, show that he has not got in his possession a reasonably suitablel accommodation of his own in his occupation in the town of BilaspurIf the answer is in affirmative, thed has thus obtained vacant possession of the whole of the premises occupied by firm Goraldas Parmanand. Looking to the map annexed to the plaint and the evidence led in the case and the dimensions of the premises stated at the hearing of this appeal the area vacated by the previous tenant would be 18 feet X 90 feet plus portion at the back of the premises occupied by the present appellant which would be 7 feet X 68 feet and it has come in possession of the respondent.The last question would be if landlord obtained vacant possession subsequent to the decree passed against the presentt by the trial Court, whether the subsequent event could be noticed by the court for moulding the decree against the present