Case: Phiroze Bamanji Desai Vs. Chandrakant M. Patel &amp; Ors

2. The appellant is the owner of two bungalows in Navsari, a town situate in South Gujarat. One bungalow is known by the name of Truth Bungalow while the other is known by the name of Hill Bungalow. The Truth Bungalow consists of only one tenement with a separate room on the ground floor. It was common ground between the parties and that appears clearly from the evidence and has also been found by the High Court as well as the lower courts, that this separate room on the ground floor of the Truth Bungalow was at all material times in the possession of the appellant. The rest of the Truth Bungalow was, some two and a half to three years prior to the recording of the evidence, let out to a tenant, but after a period of about one year and quarter the tenant surrendered possession and thereafter it was given by the appellant to one Dr. Bharucha on leave and licence on payment of compensation of Rs. 50/- per month. The appellant in his evidence could not state precisely when this leave and licence was granted by him. He said that it was given in January 1966 or it may be in January 1967. We shall, for the purpose of this appeal, proceed on the basis that it was given in January 1967, for that would be more favourable to the respondent than taking January 1966 as the time when it was granted. Dr. Bharucha was thus in occupation of the Truth Bungalow, barring the ground floor room in the possession of the appellant, from January 1967 on leave and licence from the appellant.3. The Hill Bungalow consists of two tenements, one on the ground floor and the other on the first floor. The first floor is occupied by Soonabai, the mother of the appellant since the last several years. She is an old lady, aged about 82 years at the time of giving evidence but, as the evidence shows age does not seem to have withered away her interest in life. There was some controversy before the lower courts as to whether in respect of the first floor occupied by her, Soonabai was a tenant or a licencee of the appellant. The lower courts held that she was a tenant, while the High Court took the view that she was a licencee. We shall presently examine this controversy but one thing may be made clear at this stage namely, that Soonabai was paying a sum of Rs. 50/- per month to the appellant for the occupation of the first floor and receipts in respect of such payment were produced by the appellant. The ground floor of the Hill Bungalow was let out by the appellant to one Mahendra Prasad as far back as 1957 at a rent of Rs. 65/- per month. Mahendra Prasad died in September 1966 leaving him surviving as his legal representatives is widow the fifth respondent, his son the first respondent and his daughter the second respondent. Sometime prior to the death of Mahendra Prasad, respondents 3 and 4 together with the members of their respective families had come to reside in the ground floor premises and after the death of Mahendra Prasad, they continued to stay with the first respondent. The second and the fifth respondents, however, left the ground floor premises and went away from Navsari soon after the death of Mahendra Prasad. The appellant, by a notice dated 15th Oct. 1966, terminated the tenancy of respondents 1, 2 and 5 on the ground that they had unlawfully sub-let the ground floor premises to respondents 3 and 4. Though the tenancy in respect of the first floor premises was thus terminated by the appellant, the respondents failed to hand over vacant possession of the ground floor premises to the appellant and the appellant was accordingly constrained to file regular suit No. 26 of 1967 in the court of the Civil Judge, Senior Division, Navsari on 18th January 1967. The ground on which possession was sought by the appellant in the plaint as originally framed was unlawful subletting by respondents 1, 2 and 5 to respondents 3 and 4 which is a ground of eviction under Section 13 (1) (e) of the Bombay Rents Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as the Bombay Rent Act). The appellant was carrying on his profession as architect and consulting engineer in Bombay since 1960 when he retired from Army service. He lived in a flat in Bombay for which he paid a rent of Rs. 475/- per month. The principal area of work in the early stages of his professional career was Bombay and South Gujarat but by about the middle of 1968 his work in Bombay practically dwindled to nil and his professional activities became confined almost exclusively to South Gujarat. The appellant found that in the circumstances there was no point in his continuing to live in Bombay and pay a high rent of Rs. 475/- per month which was a serious drain on his purse. The appellant accordingly decided to settle down in Navsari which was his native place where his mother was living for the last several years and from where he would be able to carry on his profession conveniently, economically and with advantage. Now, the suit filed by the appellant against the respondents for possession of the ground floor premises was already pending and the appellant, therefore, with the leave of the Court, amended the plaint in that suit introducing an additional ground that the appellant reasonably and bona fide required the ground floor premises for his personal use and occupation and was, therefore, entitled to recover possession under Section 13 (1)(g) of the Bombay Rent Act.4. Respondents 2 and 5 did not contest the suit of the appellant as they were not residing in the ground floor premises and the main defence was on behalf of respondents 1, 3 and 4 who denied the allegations made in the plaint and disputed the grounds on which possession was sought to be recovered by the appellant.5. The trial Court, on consideration of the evidence led on behalf of the appellant and respondents 1, 3 and 4 took the view that, though respondents 3 and 4 together with the members of their respective families were residing in the ground floor premises with the first respondent, it was not established by the appellant that they were sub-tenants of the first respondent and the appellant was, therefore, not entitled to recover possession of the ground floor premises on the ground of unlawful sub-letting. However, so far as the ground of reasonable and bona fide requirement for personal use and occupation was concerned, the trial Court held that the evidence on record was sufficient to establish that the appellant reasonably and bona fide required the ground floor premises for personal use and occupation and it was also clear from the evidence that greater hardship would not be caused to respondents 1, 2 and 5 by passing a decree for eviction than what would be caused to the appellant by refusing to pass it. The trial Court accordingly passed a decree for eviction against the respondents. Respondents 1 to 4 being aggrieved by the decree for eviction preferred an appeal in the District Court, Bulsar. The District Judge, who heard the appeal, found himself in complete agreement with the conclusions reached by the trial Court and he accordingly confirmed the decree for eviction and dismissed the appeal. This led to the filing of a revision application before the High Court under Section 29, sub-section (3) of the Bombay Rent Act. The High Court in revision interfered with the findings of the District Judge on both the questions, namely, reasonable and bona fide requirement for personal use and occupation as also greater hardship and held, on an appreciation of the evidence, that the appellant had failed to establish that he reasonably and bona fide required the ground floor premises for his own use and occupation and in any event the evidence showed that greater hardship would be caused to the first respondent by passing a decree for eviction than by refusing to pass it. The High Court, accordingly, set aside the decree for eviction and dismissed the suit of the appellant. Hence the present appeal, by special leave obtained from this Court.

Reasoning:
Fortunately this question is not devoid of authority. There are sections in other rent control legislations couched in identical language and they have received judicial interpretation at the hands of this Court. The first decision to which we may refer in this connection is Hari Shankar v. Rao Girdharilal Chaudhury 1962 Supp 1 SCR 933 = (AIR 1963 SC 698  ). The section which fell for consideration in this case was Section 35, sub-section (1) ofthe Delhi and Ajmer Rent Control Act, 1952 which was in the same terms as Section 29, sub-section (3) of our Act, Section 34 ofthe Delhi and Ajmer Rent Control Act, 1952 corresponded to our sub-sections (1) and (2) of Section 29.But even apart from acting outside the limits of its revisional power under Section 29, sub-section (3), the High Court was, in our opinion, on the evidence on record, in error in reversing the finding of fact recorded by the District Judge. So far as the first floor of the Hill Bungalow was concerned, it was admittedly in the possession of Soonabai, the mother of the appellant. The District Judge held, agreeing with the view taken by the trial Court, that Soonabai was a tenant of the appellant paying a rent of Rs. 50/- per month. The High Court observed that this view taken by the District Judge was contrary to the evidence on record and relied for this purpose on a statement made by the appellant in cross examination that what his mother paid was compensation and not rent. It is true that this statement was made by the appellant in cross-examination, but no undue reliance can be placed on such statement made by a layman who would not ordinarily be expected to recognize the fine distinction between compensation and rent, which has continually baffled even lawyers and judges, when we find that there was at least one rent receipt produced by Soonabai which clearly showed that what was being paid by her was rent and not compensation. There was here documentary evidence in the shape of rent receipt as against oral imperfectly understood admission made by the appellant, which supported the view taken by the District Judge that Soonabai was a tenant and not a licencee of the appellant and the High Court was in error in upsetting this view taken by the District Judge. Now, if Soonabai was a tenant of the appellant she could tell the appellant that she would continue to live on the first floor alone as she had been doing and would not allow the appellant together with his wife and children to live with her on a permanent basis. That was the mode of life to which Soonabai was accustomed for the last several years and even if it were possible for the appellant to impose himself together with his wife and children on her on the first floor, he rightly and legitimately did not choose to do so and that could not be regarded as unreasonable on his part. The High Court then proceeded to consider the availability of the Truth Bungalow and observed that since the Truth Bungalow was given on leave and licence to Dr. Bharucha, it was in the possession of the appellant and largely on the basis of this view the High Court came to the conclusion that the requirement of the appellant for the ground floor premises was not reasonable and bona fide. Now, it is true that when premises are given on leave and licence, the licenser continues from a juridical point of view, to be in possession of the premises and the licensee is merely given occupation, and therefore, strictly speaking the High Court was right in observing that the Truth Bungalow which was given on leave and licence to Dr. Bharucha, was in the possession of the appellant. But for the purpose of determining whether the requirement of the appellant for the ground floor premises was reasonable and bona fide, what is necessary to be considered is not whether the appellant was juridically in possession of the Truth Bungalow, but whether the Truth Bungalow was available to the appellant, for occupation so that he could not be said to need the ground floor premises. If the Truth Bungalow was in occupation of Dr. Bharucha on leave and licence, it was obviously not available to the appellant for occupation and it could not be taken into account for negativing the need of the appellant for the ground floor premises.The appellant could not obtain for himself the occupation of the Truth Bungalow unless he terminated the leave and licence of Dr. Bharucha and compelled him to vacate the occupation of the Truth Bungalow. That might involve a long litigation with Dr. Bharucha. As against that, a suit for eviction was already pending against the respondents in respect of the ground floor premises and it would certainly be more reasonable to pursue that litigation rather than to start a new one. Besides, the appellant chose to have possession of the ground floor premises because he wanted to be near his mother who was living on the first floor. It is true that one room on the ground floor of Truth Bungalow was in possession of the appellant, but that could hardly be sufficient for his accommodation. That High Court also observed that one room on the ground floor of the Hill Bungalow was in the possession of the appellant, but this observation seems to be contrary to the evidence on record. There was only one garage on the ground floor of the Hill Bungalow and that garage was, according to the appellant, in the joint possession of the appellant and the first respondent, while according to the respondents, it was exclusively in the possession of the first respondent. It was nobodys case that this garage was in the exclusive possession of the appellant. It was nobodys case that this garage was in the exclusive possession of the appellant. Moreover, it was only a garage and not a room and it could not be availed by the appellant for his occupation. It will, therefore, be seen that the evidence on record was sufficient to show that the requirement of the ground floor premises by the appellant was reasonable and bona fide and the High Court was in error in taking a contrary view and disturbing the finding recorded by the Districtis, therefore, clear that the District Judge placed the burden of proof wrongly on the respondents and the finding of fact arrived at by him on the question of greater hardship was vitiated by a mistake of law. The High Court was consequently justified in interfering with the finding recorded by the District Judge and arriving at its own finding on the basis of the correct principle laid down by this Court. But the High Court, in our opinion, fell into an error in appreciating the evidence and coming to the conclusion that greater hardship would be caused to the first respondent by passing a decree for eviction than by refusing to pass it.There was no evidence at all to support this finding reached by the High Court. The evidence was entirely the other way. The appellant stated in his evidence that he would suffer considerable hardship both financial and in the way of his profession if he was denied possession of the ground floor premises. This was true because the entire field of work of the appellant was now confined to South Gujarat and it was obvious that he would be able to carry on his profession conveniently, economically and with advantage, if he could live in Navsari which is situate in South Gujarat. Moreover, in view of the shift in his field of work from Bombay to South Gujarat, it was unnecessary for the appellant to continue to live in Bombay and pay a high rent of Rs. 475/- per month which was a serious drain on his purse. There can, therefore, be no doubt that if a decree for eviction were not passed in his favour, the appellant would suffer real hardship. Now, as against this evidence on the part of the appellant, no evidence at all was led on behalf of the respondents to show that the 1st respondent would suffer any hardship if a decree for eviction were passed against him. The evidence, thus, was only in one direction and it unquestionably established that greater hardship would not be caused to the first respondent by passing a decree for eviction than what would be caused to the appellant by refusing to pass it. The High Court was, therefore, clearly wrong in reversing this finding of fact recorded by the District Judge.10. It is, therefore, clear that the High Court was in error in setting aside the decree for eviction passed against the respondents.