Case: Bhaichand Ratanshi Vs. Laxmishanker Tribhoyan

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 s. 13(1) (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 s. 13(1) (g) of the Act unless it is satisfied as to the comparative ha rdship 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 s. 13(2) of the Ac t, if there is greater hardship to the tenant, the court should refrain from making an order for eviction under s. 13(1) (g) of the Act. On the other hand, if the making of an order of eviction under s. 13(1) (g) of the Act would cause no such h ardship, the court has no jurisdiction but to pass such an order.4. The Legislature by enacting s. 13(2) of the Act seeks to strike a just balance between the landlord and the tenant so that the order of eviction under s. 13(1) (g) of the Act does no t cause any hardship 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), s. 3(1), Sched. I, para (h): Sims v. Wilson, Fowle v. Bell, Smith v. Penny, Chandler v. Strevett and Kelly v. 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 f inancial 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 inc lined to the view that on the terms of s. 13(2) 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.5. Under s. 29(2) of the Act as substituted by Gujarat Act 18 of 1965, although the High Court has a wider jurisdiction than the one exercisable under s. 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 requirement s of s. 13(2) 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.6. It is indeed difficult to appreciate the line of reasoning adopted by the High-Court in non-suiting the plaintiff. On the admitted facts, the plaintiff is a displaced person from Africa and was carrying on busin ess 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 s . 13(1) (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 f or 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 s. 13(1) (g) of the Act would cause greater hardship to the defendant than to the plaintiff. Further, the High Cour t failed to appreciate that perhaps old age and infirmity night have been relevant considerations in judging the issue of greater hardship under s. 13(2) of the Act if the defendant were himself to carry on business from the suit premises an d 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 plaintiffs claim under s. 13(1)(g) of the Act. That apart, during the pendency of the appeal, the defendant Laxmishanker Tribhoyan having died, the question of greater hardship under s. 13(2) of the Act does not arise.7.

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

Explanation:
1[ds]It is plain upon the language of s. 13(2) 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 s. 13(1) (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 s. 13(1) (g) of the Act unless it is satisfied as to the comparative ha rdship 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 s. 13(2) of the Ac t, if there is greater hardship to the tenant, the court should refrain from making an order for eviction under s. 13(1) (g) of the Act. On the other hand, if the making of an order of eviction under s. 13(1) (g) of the Act would cause no such h ardship, the court has no jurisdiction but to pass such anthe issue of greater hardship the English courts have uniformly laid down that the burden of proof is on the tenant. We are inc lined to the view that on the terms of s. 13(2) 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 s. 29(2) of the Act as substituted by Gujarat Act 18 of 1965, although the High Court has a wider jurisdiction than the one exercisable under s. 115 of theCode 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 requirement s of s. 13(2) 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 theis indeed difficult to appreciate the line of reasoning adopted by the High-Court in non-suiting the plaintiff. On the admitted facts, the plaintiff is a displaced person from Africa and was carrying on busin ess 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 s . 13(1) (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 f or 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 s. 13(1) (g) of the Act would cause greater hardship to the defendant than to the plaintiff. Further, the High Cour t failed to appreciate that perhaps old age and infirmity night have been relevant considerations in judging the issue of greater hardship under s. 13(2) of the Act if the defendant were himself to carry on business from the suit premises an d 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 plaintiffs claim under s. 13(1)(g) of the Act. That apart, during the pendency of the appeal, the defendant Laxmishanker Tribhoyan having died, the question of greater hardship under s. 13(2) of the Act does not arise.e 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 p art only.