Holding

Section 13(2) does not prevent eviction where the tenant is not in actual possession and the plaintiff has proved a reasonable, bona‑fide need; the High Court erred in overturning the lower courts' factual findings.

Summary

The plaintiff, a merchant displaced from Uganda, filed a suit under section 13(1)(g) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 seeking eviction of the defendant who had licensed another person to occupy the shop as a godown. The defendant argued that eviction would cause him greater hardship under section 13(2) of the Act. The trial court and the District Judge upheld the plaintiff's claim, but the Gujarat High Court reversed the decree on the ground of comparative hardship, despite finding that the defendant was not in actual possession. The Supreme Court held that section 13(2) only applies to the landlord and tenant themselves, not to a stranger, and that the High Court could not substitute its own factual findings when the lower courts' findings were not perverse. Consequently, the Supreme Court set aside the High Court’s order, restored the decree for eviction, and allowed the appeal.

Issues considered

Whether section 13(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 bars eviction when the tenant is not in actual possession but has licensed a third party.
Whether the plaintiff has satisfied the requirement of reasonable and bona‑fide need under section 13(1)(g).
Whether the High Court can revisit factual findings of the lower courts under its revisional jurisdiction.
Whether the death of the defendant affects the applicability of section 13(2).
Who bears the burden of proof for establishing comparative hardship under section 13(2).

Legislation cited

Bombay Rents, Hotel and Lodging House Rates Control Act, 1947s. 13(1)(g), s. 13(2), s. 29(2)
Code of Civil Procedure, 1908s. 115

Subjects

evictioncomparative hardshiplandlord‑tenant lawsection 13(2)revisional jurisdictionactual possessionburden of proofdisplaced persons

Judgment

153

iBHAICHAND_ RATANSHI A
v.
LAXMISHANKER TRIBHOYAN

July 29, 1981
B
(0. CHINNAPPA REDDY, A.P. SEN AND BAHARUL !SLAM, JJ.]

Bombay Rents, Hotel and Lodging House Rates Control Act 1947-Section
!3(l)(g) and" 13(2)-Scope of-Comparative hardship-Tests for deciding-
Revisional jurisdition of the High Court under the Act limited.

In his suit under section 13(I)(g) of Bombay Rents, Hotel and Lodging c
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
bona.fide required the suit premises under the defendant's occupation for setting
up his business.
D
In replication the defendant claimed that he, a man of slender means, had
built up his goodwill by running a business from th~ 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 sect ion 13(2) of the Act makes
it incumbent on the Court to refrain fro1n passing an order of eviction under
section 13(1)(g) if it is satisfied that it causes greater hardship to the tenant than
to the landlord. E
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
pe:rson who had his own business elsewhere in the town but used the suit premises
as a mere godown.
F
On appeal the High Court declined to pass an order of eviction under
section 13(I)(g). 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 depriv-
ed of his only source of live! ihood 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.
G
Allowing the appeal.

HELD : Section 13(2) 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 hard~ H
ship either \Vay. The exi..;tence of alternative accommodation on both sides
is an important t.hough not a decisive factor. On the terms of section 13(2)
154 SUPREME COURT REPORTS (1982] I S.C.R.

A 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 coun-
try, that he had considerable business experince in that country and that he had
the requisite wherewithal to carry on business. In contrast the defendant was not in
B 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 13(1)(g) would cause greater hardship to the defendant.
Section 13(2) would have been relevant had the defendant himself been in posses·

c sion of the premises. In any event the defendant having died the question of
greater hardship to him under section 13(2) would not arise. [158 A-Fl

Although the jurisdiction exercisable by the High Court under the Act is
wider than its jurisdiction under section 115 C.P.C. 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
D 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. [156 F-G]

E CIVIL APPELLATE JURISDICTION 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 C.R.A. Nos.
1295 of 1966, 49 and 50 of 1967.
F
S.K. Dho/akia and R.C. Bhatia for the Appellant.

M. V. Goswami for the Respondent.

The Judgment of the Court was delivered by
G
SEN, J. This appeal, by special leave from a judgment of the
Gujarat High Court, involves the question of comparative hardship
under s. 13(2) of the Bombay Rent, Hotel and Lodging House Rates
Control Act, 1947 -for brevity 'the Act'.
H
First as to the facts. The appellant-plaintiff is a merchant who
settled in Africa and was carrying on business in Kampala in
BHAICHAND v. LAXMISHANKER (Sen, J.) 155

Uganda. Due to political upheaval in tha1{country, he along with A
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 B
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 plaintifff's alleged need under s. 13(1) (g) of
the Act were proved, no decree for eviction could be passed because
of comparative hardship by reason of s. 13(2) of the Act. It was c
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 a::d he would be put to greater hardship as it
would disrupt his business if he were evicted therefrom.

The court or first instance as well as the District Judge in D
appeal upheld the plaintiff's claim under s. 13(1) (g) of the Act and
decreed the suit. In revision, the High Court held that the finding
of the courts below as to the plaintitf's need to be reasonable and
bona fide being a finding of fact could not be interfered with under
s. 29(2) of the Act, but non-suited the plaintiff on the ground of
comparative hardship under s. 13(2) of the Act. As regards com-
E
parative 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 s. 13(2) of the Act did
not arise. They further held that the licensee, Labhshanker, owned
F
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 go down 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
G
obser;es: "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 be-
H
cause 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 SUPREME COURT REPORTS [1982] 1 .s.c.R

A of his only source of livelihood for he was dependent on Labh•
shanker 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 m 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
B for eviction under s. 13( 1) (g) of the Act can be passed and accor·
dingly reversed the decree of the courts below:

Section 13(2) of the Act reads as follows :

13(2)-No decree for eviction shall be passed on the
c ground specified in clause (g) of sub-section (I) 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.
D 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 s. 13(2) of the Act that it creates a
E 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 hardship~ caused
F 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 Act, 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, ii the
G making of an order of eviction under s. 13(1) (g) of the Act would
cause no suoh hardship, the court hasno jurisdiction but to pass
such an order.

H 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 not cause any hardship
BHAICHAND v. LAXMISHANKER (Sen, J.) 157

to either side. The considerations that weigh in striking a just A
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 Mortpage Interest Restrictions (Amend-
ment) Act, 1933 (c. 32), s. 3(1), Sched. I, para {h) : Sims v.
Wilson('), Fowle v. Be/IC), Smith v. Penny('), Chandler v. Strevett( 4)
and Kelly v. Goodwin('). One of the most important factors in B
considering the question of greater hardship is whether other reason-
able 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 securiug alternative accommodation
either by purchase or by hiring one, the nature and extent of the c
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
i 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 term> of s. 13(2) of D
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 onJacts and circumstances of each case.

Under s. 29(2) of the Act as substituted by Gujarat Act 18 of E
1965, althougb 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 F
mind to the requirements 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.
G
It is indeed difficult to appreciate the line of reasoning
adopted by the High-Court in non·suiting the plaintiff. On the

(I) (1946] 2 All E.R. 261.
(2) (1946] 2 All E.R. 668.
(3) (1946] 2 All E.R. 672.
(4) (1947] l All E.R. 164. H
(5) (1947] I All E.R. 810.
(6) Halsbury"s Laws of England, 3rd Edn. Vol, 23, p. 824.
158 SUPREME COURT REPORTS (1982] 1 S.C.R.

A 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 anJ began Jiving 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
B the requisite experience and wherewithal to carry on bu,iness, as it
is on record that he has been carrying on business in Kam.Ja\a for
over 30 years. The mere fact th~t 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
c defendant was not in actual poss· ssion 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
D passing of a decree under s. 13(!) (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 s. 13(2) of the Act if the defendant were himself to carry on
business from the suit premises and not where, as here, he had
E 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 Jaw be pleaded in answer to the "plaintiff's claim under
s. J3(J)(g) of the Act. That apart, during the pendency of the appeal,
F the defendant Laxmishanker Tribhoyan having died, the question of
greater hardship under s. 13(2) 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
G the courts below decreeing the plaintiff's suit for eviction under
s. 13(1) (g) of the Bombay Rents, Hotel and Lodging House Rates
Control Act, 1947, are restored with costs throui:hout.

P.B.R. Appeal allowed.