BEGA BEGUM AND ORS. versus ABDUL AHAD KHAN AND ORS.

BEGA BEGUM AND ORS.

ABDUL AHAD KHAN AND ORS.

October 6, 1978

[S. MURTAZA FAZAL ALI AND P. N. SHINGHAL, JJ.J

lammu nnd Kashmir Houses and Shops Rent Control Act, 1966, Section 11(h)-Meuning of the words '{reasonable requirement" and "own occupation" in Section 11 ('1 )-Balance of convenience in cases of eviction, explatned-ConstitutlDn of India, 1950, Art. 136, interference by Supreme Court with con-current findings of Courts below.

The appeJJants-plaintiffs sought the eviction of the respondents-defendants fro::n the suit premises which was leased to the latter for period of ten years only and for running hotel, on the grounds (a) of personal :rnquirement to run hotel business themselves and (b) of the failure of the res pendents to deliver possession after the expiry of the period of lease despite notices issued. The Trial Court and t.1-e High Court in appeal having dismissed the suit, the ap-pellants 9btaine.d special leave of this Court.

Allowing the appeal, the Court

EIELD : 1. The Jammu and Kashniir Houses and Shops Rent Control Act, 1966 is piece of social legislation aimed at easing the problem of accommoda-tion. protecting the tenants from evictions inspired by profit hunting motives and providing certain safeguards for the tenants and saving them from great expense, inconvenience and trouble. But the Act does not completely overlook the interest of the landlord and has under certain conditions granted clear right to the landlord to seek eviction on proof of the grounds mentioned in section 11 of the Act. Thus, the Act appears to have· struck just balance between the genuine need of the· landlord on the one hand and great inconvenience and trouble which may be caused· to the tenants on the other. In the instant .case, the defendants had taken the property on lease only for period of 10 years and now they have been in prossession of the same for over 30 years. If ihe plaintiffs found that their present business had become dull .and was not yieJding s11fl1cil'nt income to maintain themselves, aild therefor:e, it \vas necessary to occupy the house so as to run hotel business, it cannot by any stretch of imagination be said that the plaintiffs had merely desire rather than bonafide need for cvicttng the tenants. The findings of the High Court that the plain· tiffs had not pro·:ed that they had bonafide need for occupation of the building in dispute is incorrect. [7E-H, SA]

2. Section 11 (h) of the Act uses the words 'rev.nnable requirement' 'vhich undoubtedly postulate that there must be an element of need as opposed to mere desire o:· wish. The distinction between desirei and need should doubtless be kept in r:iind but not so as to make even the genuine need ll'!l nothing but desire as the High Court has done in this case. The connotation of the term 'need' or 'requirement' should not be artificially extended nor its language so unduly stretched or strained as to make it impossible or extremely difficult for the landlord ·to get de~ree for eviction. Such course would defeat the very pur-

pose of the Act which affords the facility of eviction of the tenant to the land-lord on certain specified grounds. This is the general scheme of all the Rent Con-trol Acts, prevalent in other States in the country. The word "requirement'~ merely connotes that there should be an element of need. In such cases the main test should be \vhether it was necessary for the landlords to need the premises for their own use or occupation. [8A-D, F]

In the instant case, the pl&intiffs had proved that the requirement for the house for starting hotel business was both genuine and reasonable and even imperative, bee.a.use the scanty income of the plaintiffs was not sufficiert to maintain them or to afford them decent or comfortable living. [9A-B]

Phiroze Ra1nanji Desai v. Chandrakant N. Patel and Ors [1974] 1 SCC 661; applied.

B. Baliah v. Chandoor Lachaiah, A.LR. 1965 A.P. 435 (D.B.) approved.

3. The \\C.rds "own occupation" in S. 11 (h) cannot be so narrow~y htter-preted as to indicate actual physical possession of the landlord personally and nothing sho1t of that. The provision in S. 11 (h) of the Act is meant for the benefit of the landlord and, therefore, it must be so construed as to advance the object of the Act. The word 'occupation' does not exclude the possibility of the landlord starting business or running hotel in the shop wbkh also would amount to personal occupation by the landlord. The section contemplates the actual possession of the landlord, whether for his own residence or for his business. It is manifest that even,. if the landlord is running hotel in the .i1ou~c, he i~ undoubtedly in possession or occupation of the house in the Jeg&l sense cf the term. Furthermore, the section is wide enough to include the necessity of not only the ~andlord but also of the persons \Vho are living with him as member~ of the same family. [9G-H, lOA and DJ

In the instant case there can be no n1anner of doubt that the house was required for the personal residence or occupation of all the three plaintiffs who ad1nittedly were the owners of the house. The fact that the plaintiffs wanted to occupy the property for running hotel would not take their case out of the ambit of personal necessity and the occupation of house may be required by the owner for personal purposes. I-Ie may choose to reside himself in the house or run business in the house or use it as paying guest house and derive income therefrom. In aJI these cases even though the owner may not physically reside in the house, the house in law would nevertheless be deemed to be in actual oc9upation of the owners. llOA-CJ

4. (a) In deciding the aspect of balance of convenience of the parties in an eviction suit each party has to prove its relative advantages or disadvantages and the entire onus cannot be thrown on the plaintiffs to prove that lesser dis-aJv<inlagcs will be suiiered by the defendants and that they were remediable. [!OH, I IA]

(b) It is no doubt true that the tenant will have to be ousted from the house if decree for eviction is passed, but such an event would happen when-ever decree for eviction is passed and was fully in contemplation of the legis-lature when section ll(l)(h) of the Act was introduced in the Act. This by itself would not be valid ground for refusing the plaintiffs decree for eviction. [IOF-G]

Mis. Central 1obacco Co. v. Chandra Prakash, Civil Appeal No. 1175/69 [SC] dated 23-4-1969 and Phiroze Ran1anji Desai v. Chandrakant N. Patel and Ors. [1974] I S.C.C. 661; referred to.

Kelley v. Goodwin, [1947] All E.R. P. 810; quoted with approval;

K. Parasuran1aiah v. Pokuri Lakshmamma, A.I.R. 1965 A.P. 120; approved.

( c) Being the owners of the house they cannot be denied eviction and be ccn1pclled to live below the poverty line merely to enable the respondents to carry on their flourishing hotel business, at the cost of the appellants. This sho\vs the great prejudice that will be caused to ·the plaintiffs if their suit is dismissed. The plaintiffs have already produced material before the court to show that their income does not exceed more than Rs. 8000 to Rs. 9000/- per year ~ the yearly income tax paid by them is Rs. 70 to Rs. 80 only. There is no other means for them to augment their income except to get their own house vacated by the defendants so as to run hotel business. [12H, 13A-B] (d) On careful comparison and assessment of the relative advantages and disadvantages of the landlord and the tenant, it is clear that the scale is tilted in favour of the plaintiffs in the instant case~ The inconvenience, loss and trouble resulting from denial of decree for eviction in favour of the plaintiffs far outweigh the prejudice or the inconvenience which \Vill be caused to the defendants. The High Court has unfortunately not weighed the evidence fron1 the point of view. [14H, 15A]

Observation :

Normally Supreme Court does not interfere with concurrent findings of facts but as the High Court as also the Trial Court have made legally wrong approach to thi:i; case and have committed substantial and patent error of law in interpreting the scope and ambit of the words "reasonable requirement" and "ov"n possession" appearing in section ll(l)(h) of the Act and have thus misapplied the law and overlooked some of the essential features of the evi· dence. the merits of the case had to be looked into in order to prevent grave and subst1nt.ial injustice being done to the appellant. ! 15B-C]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2481 of 1978.

Appeal by Special Leave from the Judgment and Order dated 10-10-67 of the Jammu and Kashmir High Court in Civil First Appeal No. 18 of 1%6 ·

Lal Narain Sinha, E. C. Ag'µrwala, M. M. L. Srivastava, R. Salish aqd ltaf Ahmed for the Appellant.

S. N. Andie)", B. P. Maheshwari and Suresh Sethi for the Respon-dent

The Judgment of the Court was delivered by

F~AL ALI, J.-This is plaintiffs' appeal by special leave against a· judgment dated 10th October, 1966 ofthe Jammu & Kashmir High Court dismissing the plaintiff's suit.

The facts of the case lie within very narrow compass and after hearing counsel for the parties we propose to decide only one point, viz., the qnestion as to whether or not the plaintiffs were entitled to decree of ejectment against the defendants in respect of the house in question on the ground of personal necessity, and, therefore, we shall narrate only those facts which are germane for this purpose.

The property in suit was four-storeyed building situated at Maisuma Lal Chowk, Srinagar and belonged to one Peer Ali Mohammad, the ancestor of the plaintiffs. This building was leased out to the defen-dants by registered lease deed dated 1st December,, 1947 for period of 10 years. Under the lease the lessor had provided some furniture and crockery to the lessees. Furthermore, it was clearly stipulated that the building was leased out for the purpose of running hotel by the lessees, and for this purpose the lessees wern given the right to m1ke suitable alterations in the same, but were prohibited from making any alteration which may affect the durability or damage the building. On the expiry of the period of the lease, the appellants demanded possession of the building from the respondents and despite. certain notices given by the a'ppellants the respondents failed to give possession of the building. Hence the plaintiff's suit.

The plaintiffs had taken three main grounds in support of their con-tention for ejectmcnt of the defendants from the ;uit premises. In the first place, the appellants alleged that they required the building in order to extent! their business by running hotel there themselves; secondly, as the lease lmd expired by efflux of time, the respondents were ~egally bound to surrender possession. Thirdly, it was averred by the plaintiffs that the J ammu & Kashmir Houses and Shops Rent Control Act, 1966 (hereinafter referred to as the Act) was wholly inapplicable to the premises in dispute, because the yearly income of the defendants far exceeded Rs. 20,000 and that running hotel did not fall within the ourview of section 2(3) of the Act. The suit was resisted by the ~espondents who took, inter alia, number of objections to the grant of the relief to the appellants. In the first place, it was pleaded that the income of the respondents being less than Rs. 20,000/- per year the suit was clearly covered by the Act. Secondly, it was averred that the definition of the word 'house' in section 2( 3) of the Act was wide enough to include hotel. It was next averred that the plaintiffs had no per-sonal necessity and had filed the suit merely for the purpose of getting hieher rent. Lastlv, it was contended that as the plaintiffs required tlie house fer tunning hotel, snch purpose did not fall within the ambit of section 11 (ih) of the Act which applied only to such case where the landlord required the house for his occupation and, at any

rate, having regard to the comparative advantages or disadvantages of the landlord and the tenant, them was no equity on the side of the plain-tiffs.

The case was tried by the City Judge, ,Srinagar who accepted the case of the defendants (respondents) and dismissed the plaintiffs' suit. The plaintiffs thereupon filed an appeal before the High Court of Jammu & Kashmir which held that the plaintiffs had not proved their personal plaintiffs like ~n application for leave to appeal to this Court and the same having been refused, they obtained special leave of this Court and he·:ice the apP'~al before us.

In support of !he appeal Mr. Lal Narayan Sinha, counsel fOT the Jp-pellants submitted three points. In the first place, he conten-ded that there was sufricient evidence to indicate that the income of the defendants-resrondents was more than Rs. 20,000/- year, and, there-fore, the provisions of the Act were not applicable and as the lea•e bac' expired due to efilux of time, the plaintiffs were entitled to decree for ejectment straightway. Secondly, it was argued that the word 'house' used in section 2(3) of the Act cannot include hotel, and, th•erefore, the Act was not applicable. Lastly, it was submitted that the High Court committed grave error of law iu holding that the plaintiffs h.id not been able to prove personal necessity,, although the High Court gave clear finding that the plaintiffs had undoubtedly proved that they l1mi strong desire to occupy the building for running hotel. It was argu-ed that the finding of the High Court was not based on discussion ~f the evidence and circumstances of the case and the High Court has taken an erroneous view of law on the nature of the need of the appellants «IS also on the question of the comparative advantages or disadvantages of the landlord and the tenant if decree for eviction followed.

After having heard counsel for the parties we are clearly of the opi-nion that the appeal must succeed on the third point raised by learned counsel for the appellants, i.e., the question of personal necessity and in this view of the matter we refrain from expressing any opinion on the applicability of the Act to the suit premises as averred by the respon-dents. Learned counsel for the appellants contended that there was sufficient malerial before the Court to show that the plaintiffs did not merely have desire to occupy the building, but they actually needed tne s;11ne, and tf.eir need is both genuine and reasonable. In this con-necti-~r., refor.ce was placed on the evidence of the witnesses for the plaintiffs which does not appear to have been considered by the High Court. We find that the plaintiffs had clearly mentioned in their plaint

[ 1979] 2 S.C.R.

that they required the house for the purpose of running the hotel busi-ness. On behalf of the plaintiffs P.W. Mohd. Yusuf had made it absolutely clear that they required the lease• property for their personal need as they wanted to run the hotel themselves. The witness had fur-ther explained that this was necessary, because the plaintiffs could not maintain themselves from the income of .the leased property. It is true that the plaintiffs were doing small business, but the witness had made it clear that their income was very low so much so that they paid income tax of only Rs. 70 to Rs. 80 /-·per aunum. These facts have not been dem0lished e1tr1er iu the cross-examination of the witness or in the evi-denet of rebuttal given by the defendants.

The above evidence of the plaintiffs is corroborated by the other · witnesses examined by them. P.W. Girdhari Lal has clearly stated th:-.t the plaint;ffs want to extend their business and want to have the hotel in their own possession to run the same. He has further stated that the plaintiffs are ruuning their business on small scale, and he cate-gorically stated that he had personally observed that there is very little work at the plaintiff's shop now days. That is why they want to run hotel. The witness is neighbour of the plaintiffs' shop and was, therefore, competent to depose to the facts mentioned above which have not been shaken in cross-examination .

other

P.W. Peer Ahmad Ullah has also stated that now days peopl.e give up other occupations and take up hotel busi."less because hotel business is itself profitable business. The witness added that the plaintiff also want to e"Xtend their business and start hotel in this building.

P.W. Ghulam Nabi Dar also says that although the plaintiffs had Boot shop they also want to run the hotel themselves, because their busi-ness has become dull.

P.W. Ghulam Mohd. whose shop is in front of the shop of th~ plain-tiffs states as follows :-

"The plaintiffs require the suit property for their own use, as they have been telling me for the last two or four years. Previously, the business at Boot shops was running well but now it has become dull. The plaintifl's intend to run the h<Yt~I them..;elves .................... As for p!aintiffs I say that they are in need of the hotel. The plaintiffs require the• hotel in order to extend their business".

Another neighbour of the plaintiffs P.W. Yash Paul states that the plaintiffs say ti.at they will start hotel in the suit property. He fur-

He fur-

ther depo,es 1hat the1e is little work in the shop of the plaintiffs, and, therefore, they want to start hotel, P.W. Ghulam Mohd. who is the brother-in-law of P.W. Pir AL Mohd., father of the plaintiffs and w~s looking after h~s children on the death of P.W. Pir Aii Mohd. has also stated that the plaint;ffs want to start business in the shape of hotel in the hou;e and they ~.!so want to run the shop. It is, therefore, proved by the evidence discussed above ( 1) that the plaintiffs required the house for their personal ner,essity in order to augment their income, (2) thJt as their bcCJme from the Boot shop is very small and they are not able to maintair. tlwmselves, so they want to run the hotel business in the suit premises. The High Court has not at all discussed this part of the evidence af the plaintiffs, but at the some time being impressed by th,, fact that the need of the plaintiffs was genuine the High Court gave findinr tl at the plaintiffs had strong desire to occupy the house and nse it for c•m1mercial purposes. Thereafter the High Court appears to have lost itself in wilderness by entering into hair splitting distinction between d< sire and need. Here the High Couct has misdirected itself. If the pfai·1tifl'> had proved th~.t their necessity was both genuine and reasonable, that the present premises which belonged to them were re-quired for augmenting their income as the income so far received by them was not sufficient for them to make the two ends meet, there could be no question of mere desire, but it is case of real requirement or genuine need. In fact the irresistible inference which could be drawn from the facts is that tho~ plaintiffs had pr~ssing necessity of occupying the premises for the purposes of conducting hotel business so as to sup-plement their income and maintain themselves property. The Act is piece of social legislation and aimed at easing the problem of accom-modation, protecting the tenants from evictions inspired by profit hunt-ing motivs and providing certain safeguards for the tenants and saving them from great expense, inconvenience and trouble. But the Act does not completely overlook the interest of the landlord and has under cer-tam conditions granted clear right to the landlord to seek eviction oii proof of the grounds mentioned in section 11 of the Act. Thus, the Act appears to have struck just balance between the genuine need of the landlord on the one hand and great inconvenience and trouble of the tenant on the other. It was also not disputed that the defendants had taken the property on lease only for period of 10 years and now they have been in possession of the same for over 30 years. If the plaintiffs found that their present business had become dull and was not yielding sufficient income to maintain themselves and, therefore, it was necessary to occupy !he house so as to run hotel business, it cannot by any stretch of imagination be said that the plaintiffs had merely desire rather than

bonafide need for evicting the tenanl's. We therefore, disagree with the finding of he High Court tha:t the plaintiffs had not proved that they had bonafide need for occupatio_n of the building ra dispute.

We therefore, disagree with

Moreover section 11 (h) of the Act uses the words 'reasonable-re-quirem 0nt' wh;ch undoubtedly postulate that th~1e must be an element of need as opposed to mere desire or wish. The distinction between desire and need should doubtless be kept in mind but not so as to make even tbe genuine need as nothing but desire as the High Court has done in this case. It seems to us that the connotation of the term 'need' 'lr 'reo.uhmcn~· should not be artificially extended p.or its lac:guage so unduly stretched or strained as to make it impossible or extremely difli-C cult for one litndlord to get decree for eviction. Such course would defeat the very purpose of the Act which affords the facility of eviction of the tenant to the landlord on certain specified grounds. This appears to us to be the general scheme of all the Rent Control Acts, prevalent in other State in the country. This Court has considered the import of the word requirement and pointed out that it merely connotes that there should be an element of need.

ln the case of Phiroze Ramanji Desai v. Chandrakant N. Patel & Ors.(') Justice Bhagwati speaking for the Court observed as follows :-

"The District Judge did not misdirect himself in regard to the true meanmg the word 'requires' in section 13 ( 1) (g) and interpreted it correctly to mean that there must be an ckmeni of neec\ bt'fore landlord can be said to 'require' premises for his own use :ind occupation. It is not enough that ihe landlord should merely desire to use and occupy the premises. What is necessary is that he should need them for his O\r11 use and occupation."

Thus, this Court has held that in such cases the main test ehould be whether it was necessary for the landlords to need the premises for their use or occupation.

In the case of B. Balaiah v. Chandoor Lachaiah(') Division Bench of the High Court observed as follows :-

"As long as Sl,.ch requirement is bona fide, the petitioner can certainly clain1 for tlirt:ction for eviction of the tenant".

It had become necessary for us to enter iTito the evidence led by the plaintiffs, because the High Court has in general way made sweep-Ei ing obvervation that al<hough the plaintiffs had strong desire, they

(I) [1974] I S.C.C. 661

(2) A.I.R 1965 A.P 435.

were not able to prove reasonable requirement and the High Court came to this finding without at all considering the evidence of compe-tent and important witnesses examined by the plaintiffs on this point which has been discussed above. For these reasons, therefore, we are clearly of the opinion that in the instant case the plaintiffs had proved th~t the requirement for the house for starting hotel business was both genuine and reasonable and even imperati~, because the scanty income of the plaintiffs was not sufficient to maintain them or to afford them decent or comfortable living.

This brings us to the next limb of the argument of the learned coun-sel for the respondents regarding the interpretation of section 11 ( 1) (h) of the Act. Section 11 (1 )(h) of the Act runs thus :-

"11 (l)(h) ............................ where the house or shop is reasonably required by the landlord either for purposes of building or re-building, or for his own occu-p11tion or for the occupation of any person for whose benefit the house or shop is held;

Explanation : The Court in determining the reasonable-nus of requirement for purposes of building or rebuilding shall have regard to the comparative public benefit or disad-vant~ge by extendmg or diminishing accommodation, and in determining reasonableness of requirement for occupation shall have regard to the comparative advantage or disadvan-tage of the landlord or the person for whose benefit the house or !lhop is held and of the tenant".

It was submitted by Mr. Andley, learned counsel for the respondents that the words used in section 11 (1) (h) are "that the house should be required by the landlord for his own occupation or for the occupa-tion of any person for whose benefit the house or shop is held." It was arguad that the words 'own occupation' clearly postulate that the landlord must require it for his personal residence and not for starting any business in the house. We are, however, unable to agree with this argwment. The provision is meant for the benefit of the landlord and, therefore, it must be so ccmstrued as to advance the object of the Act. The word 'occupation' does not exclude the possibility of the landlord s:arting business or running hotel in the shop which also would amount to personal occupation by the landlord. In our opi-nion, the section contemplates the actual possession of the landlord, whether for his own residence or for his business. It is manifest that even if the landlord is running hotel in the house, he is undoubtedly in poSt!ession or occupation of the house in the legal sense of the terni. 2-81 ?!ICI/78

Furthermore. the section is wide enough to include the necessity of not only the landlord but also of the persons who are living with him as members of the same family.

In the instant case there can be no manner of doubt that the house was required for the personal residence or occupation of all the three 8 plaintiffs who admittedly were the owners of the house. The fact that the plaintiffs wanted to occupy the property for running hotel would not take their case out of the ambit of personal necessity as already indicated above, occupation of house may be required by the owner for personal purposes. He may choose to reside himself in the house or run business in the house or use it as paying guest house and derive income therefrom. In all these cases even though the owner may not phy;ically reside in the house, the house in Jaw would never-theless b~ deemed to be in actual occupation of the owner.

Having regard, therefore, to the circumstances mentioned abov,e, we are unable to subscribe to the view that the words 'own occupation' must be so narrowly interpreted so as to indicate actual physical possession of the landlord personally and nothing short of that. We, therefore, overrule the argument of the respondents on this point.

The last argument that was advanced before us by Mr. Andley for the resp~nclents was tkt taking an overall picture of the, various as-E peels of the present case, it canllot be said that th~ balance of compara-tive advantages and disadvantages was in favour of the landlord. In this connection, our attention was drawn to the evidence led by the defendants that the main source of their income is the hotel business carried on by them in the premises and if they are thrown out they are not likely to get any alternative accommodation. The High Court has accepted the case df the defendants on this point, but does not appear to have considered th~ natural consequences which flow from com-parative assessment of the advantages and disadvantages of landlord and the tenant if decree for eviction follows. It is no doubt true that the tenant will have to be ousted from the house i.f decree for eviction i; passed, but such an event would happen whenever decree for eviction is passed and was fully in contemplation of the legislature when secfon 11 (l)(h) of the Act was introduced in the Act. This by itself would not be valid ground for refusing the plaintiffs decree for eviction.

Let us now probe hlto the extent of the hardship that may be caused to one party or the other, in case decree for eviction is passed or is refused. It seems to us that in deciding this aspect of the matter each party has to prow its relative advantages or disadvantages and the· entire

onus cannot be thrown on the plaintiffs to prove that lesser disadvan-tages will be suffered by the defendants and that they were remediable. This matter was considered by this Court in an unreported decision in the case of MI s Central Tobacco Co. v. Chandra Prakash(') where this Court observed as follows :-

"We do not find ourselves "'':e to accept the broad pro-position tha: as soon ~s the Janc11ord establishes his need for additional accommodation he is relieved of all further obliga-tion under s. 21 sub-s. (4) and that once the landlord's need is accepted by the court all iurther evidence must be adouceJ by the teq~nt if he claims protection under the Act, Each party must .adduce evidence to ;bow what hardship waul<l be caused to him by the granting or refusal of the decree aud it will be for the court to dcrennine whether the suffering of the tenant, in case ccree was made, would be more than that of the landlord by its refm.al.

' The whole object of the Act is to provide for the contrel of rents and evictions, for the leasing of building~ etc. and s. 21 specifically enumerates the grounds which alone will entitle landlord to evict his tenant. ......... The onu< of proof of iilis is ccnain:y <'n the landlord. We see no sufil · dent reason for holding that once that onus is discharged by the landlord it shifts to the tenants making it obligatory on him to show that greater hardship would be caused to him by passing the decree than by refusing to pass it. In our opinion both sides must ad<luc~ all relevant evidence before the court; the landlord must shew that other reasonable a~· commodation was not availabie to him and thf tenant must also adduce evidence to that effect. It is only after shifting such evidence tliat the coun must form its conclusion on consideration of all the circt1mstances of the case as to whether greater hardship would be caused by passing the decree than by refusjng to pass it".

This case was followed in Phiroze Ramanji De.ij~i v. Chandrakant N. Pa~el & Ors (supra). In the case of Kelley v. Goodwin(') Lynskey, J. observed as follows :-

"The next matter one has to consider is whether there was evidence on which the county court judge could come to the conclusion that there would be greater hardship in mak-

(1) C.A. 1175of1969 decided on 234-1969.

(2) [1947] I All E.R. 810

inl: the order than not making the order. He has taken into account, m relation to that question, first, the position of the landlord, and, secondly, the position of the tenant He has taken into account the financial means of the tenant. It is argued before us that he was wrong in doing that. In my view, he was quite entitled, in considering hardship, to have regard to the financial means of the tenant in considering whether he could obtain other accommodation because, by reason of his means, he was in position, not n1erely to rent, but to buy hoEse. It seems to me also that, on this ques-tion cf hardship, the judge was entitled to take, into account the fact that the tenant had taken no real steps to try and find other accommodation or no real steps to buy house".

To the same effect is the decision in the case of K. Parasuramaiah v. Pokuri Lakshmamma(') where Division Bench of the High Court narrated the mode and circumstances in which the comparative advan-tages and disadvantages of the landlord and the tenant could be weigh-ed. In this connection, the Court observed as follows :-

" l'hus the hardship of the tenant was first to be found out in case eviction is to be directed. That hardship then has to be placed against the relative advantages which the land-lord would stand to gain if an order of eviction is passed .... . . . . . . What is however required is careful consideratien of all the relevant factor3 in weighing the relative hardship whid' is likely to be caused to the tenant with the likely ad-vantage of the landlord on the basis of the available materia:I on reccrd .... , ......... The proviso however should not be read as if it confers practical immunity on the tenant from being evicted. That would destroy the very purpose of Sec. 10 ( 3 )( c) . Likewise the requirement of the land-lord in accordance with that provision alone cannot be given absolute value, because that would mean to underestimate the value of tl1e proviso to that section. Keeping in view therefor~ the purpose of the provision and the necessity of balancing the various factors each individual case has to be decided in the light of the facts and circumstances of that case''.

In view of onr findings it has been established that the landlords have not only genuine requirement to possess the house, but it 1s necessary for them to do so in order to augment their income and maintain themselves properly. Being the owners of the house they

(I) A.LR. 1965 A.P.220

cannot be denied eviction and be compelled to live below the poverty line merely to enable the respondents to carry on their flourishing hotel business, at the cost of the appellants. This shows the great prejudice that will be caused to the plaintiffs if their suit is dismissed. The plain-tiffs have already produc,ed material before the court to show that their income does not exceed more than Rs. 8000 to Rs. 90001- per year as the yearly income tax paid by them is Rs. 70 to Rs. 80 only. There 1s no other moJns for them to augment their income except to get their own house vacated by the defendants so as to run hotel business. It was vehemently contended by Mr. Andley that there is nothing to show that the plaintiff Mohd. Yusuf or his mother had any experience of running the hotel, and, therefore, it is fruitless to allow them to run the hotel by evicting the respondents. Mohd. Yusuf is admittedly doing shoe business, and has got sufficient experience of business. Nothing has bern brought on the record to show that he is incapable of running hotel in the premises. The building belongs to him and there is no reasc:in for us to think that he cannot establish hotel busi-ness. On the other hand the defendant< have been running the hotel for the last 30 years and must have made sufficient profits. To begin with, the defendants had taken the lease only for 10 years which now by virtue of the st~tute has been extended to 30 years which is suffi-ciently long period for which the plaintiffs have been deprived the possession of the house. There is thus no equity in favour of the res-pondents for continuing in posses£ion any further.It was then submitted by Mr. Andley, counsel for the respondents that if the respondents are evicted they will be thrown out on the road; that hotei is the O!lly source of their sustenance and they are not likely to get any alternative accommodation on being e,victed. If the defen-dants ffi!d proved that they will not be able to get any accommodation any where in the rity where they could set up hotel, this might have been weighty consideration, but the evidence of all the witnesses examined by the defendants only shows that the defendants may not get alternative accommodation in that very locality where the house in dispute is situated. There is no satisfactory evidence to prove that even in other buoiness localities there is no possibility of the defendants getting house. To insist on getting an alternative accommodation of similar nature in the same locality will be asking for the impossible. The defendants are tenants and had taken the leas~ only for 10 years but had overstay.,d for 20 years ar.d they cannot be allowed to dictate to the landlord that they cannot be evicted unless they get similar accommodation in the very same locality.

G. M. Khan the defendant himself has stated that if he is evicted from the house, he cannot get such place any where. Great stress is laid tk1t he must get house of the size of the house in dispute. It was suggested to him that if one of the houses of the plaintiffs is given to him that will be sufficient for him, to which he said that the said house situated in Hari Singh High Street is not suitable because he can-B not run his hotel business there. The witness has further stated to-wards the end that th" delcndants cannot get any place for the purpose of running hotel in this Ilaqa (locality). D.W. Ghani Hajam also says that the defendants cannot get any oth"r building for the, purpose of the hotel at this place like the one under d'oputc. Similarly, D. W. Ghulam Mohd. Khan, another witness for the defrndants says that the defendants will not get such building in this Ilaqa for running hotel. D.W. Haji Noor Mohd. also endorses the fact that if the defendants are ejected, it is difficult for them to get such building in this place. D.W. Mohd, Ramzan deposes that if the defendants are ejected from the building, they will not get such building in this locality for running hotel. To the same effect is the evidence of D. W. Rasool Dar who says that it is impossible for the defendants to get house like the suit house for the purposes of running hotel QI the site or nearabout where the suit house is situated. D. W. Ghulam Mohd. has made similar state-E ment in his deposition when he says that the defendants will not get such building nor is there any such building vacant in the locality. It is true that there are some witnesses like D. W. Aslam Khan, Ghulam Hassan, Mohd. Abdullah Pandey who has said that the defendants might not get any other place for rnnning hotel but the evidence is extremely vague and nebulous. D. W. Abdul Kabir however merely says Lhat he had no knc>wledge that the de!eudants could get any other house. Thus, what is established from the evidence of the defendants is that if they are ejected, they might not get house as big as the house in dispute in the very locality where the disputed house is situa•ed. There is no clear evidence in the first place to show that there is no other business locality in the city at all or that if there is any other business locality attempts were made by the defendants but they were unable to get any house. Furthermore, as indicated above, the plain-tiff necessity is imperative and their requirement is undoubtedly reason-able, because the income which they are receiving including the rent of the house which is in the region of Rs. 5000/- per year, is not suffi-B cient to maintain them. Thus, on careful comparison and assessment of the relative advantages and disadvantages of the landlord and the tenant it seems to us that the scale is tilted in favour of the plaintiffs.

The inconvenience, loss and trouble resulting from denial of decree for eviction in favour of the plaintiffs far outweigh the pre-judice or the incCY:J.venience which will be caused to the defendants. The High Court has unfortunately not weighed the evidence from this point of view.

Before closing the judgment we would like to observe that normally ;his Court does not interfere with concurrent findings of facts but as the High Court as also the Trial Court have made legally wrong ap-proach to this case and have committed substantial and patent error of law in interpreting the scope and ambit of the words "reasonable requirement" and "own possession" appearing in section 11 (1) (h) of the Act and have thus misapplied the law and overlooked some of the e>Sential features of the evidence as discussed by us, we had to enter into the merits of the case in order to prevlent grave and substantial injustice being done to the appellants.