Supreme Court of India
SAVITRI SAHAYversusSACHIDANAND PRASAD
- Citation
- 2002 INSC 455
- Decided
- 31 October 2002
- Disposal
- Appeal(s) allowed
- Bench
- S N VARIAVA
Holding
Explanation II to Section 11(1)(c) allows a landlord to select any one of multiple premises for bona‑fide requirement, and the High Court’s reversal of the trial court’s decree was unjustified.
Summary
The landlord, Savitri Sahay, filed an eviction suit under the Bihar Buildings (Lease, Rent and Eviction) Act, 1982, claiming a bona‑fide requirement for a ground‑floor flat that was contiguous to her ancestral house and faced an open piece of land. During the pendency of the suit three other flats in the same building became vacant, which the landlord let out at higher rents. The trial court, relying on Explanation II to Section 11(1)(c), held that the landlord could prefer the particular flat and granted eviction. The respondent tenant appealed by revision; the Patna High Court set aside the decree, holding that the landlord’s need was not genuine because she could have occupied the other vacant flats. On appeal, the Supreme Court held that Explanation II expressly allows a landlord to choose any one of several premises for bona‑fide requirement and that the High Court was not entitled to overturn the trial court’s finding on that basis. The Court also clarified the limited revisional scope under Section 14(8). The appeal was allowed, the High Court judgment was set aside, and the trial court’s eviction decree was restored, with the tenant given time to vacate.
Issues considered
- Whether Explanation II to Section 11(1)(c) of the Bihar Buildings (Lease, Rent and Eviction) Act, 1982 permits a landlord to ignore other vacant premises and prefer a particular one for bona‑fide requirement.
- Whether the High Court, under Section 14(8), had the jurisdiction to set aside the trial court’s decree on the ground that its factual findings were perverse.
- Whether the landlord’s need was genuine in view of her letting out other vacant flats at higher rent.
Subjects
evictionbona fide requirementlandlord preferencerent controlrevision jurisdictionSection 11Section 14(8)Section 17Bihar Buildings Act
Judgment
SA VlTRl SAHA Y A
v.
SACHIDANAND PRASAD
OCTOBER 3 I, 2002
[S.N. VARIA VA AND ARUN KUMAR, JJ.] B
Rent Control & Eviction :
} Bihar Buildings (Lease, Rent and Eviction) Act, 1982:
c
Sections l l(lj(c)-Eviction suit on ground of bona fide requirement-
Tenant taking plea that other flats falling vacant after the filing of suit which
owner letting out at higher rent-Trial Court accepting the reasons ofbonafide
requirement and passing eviction decree-High Court setting aside the decree
since owner not occupying other flats falling vacant-Justification of- Held, D
order of High Court not justified since Explanation to Section 11 (I }(c) permits
landlord to ignore other pre1nises and prefer a particular premise.
Section 14(8)-Revision power-Scope of-Discussed.
Appellant is the owner of premises where respondent was a tenant E
in one of the flats. Appellant filed eviction suit against respondent-tenant
on the ground of bona fide requirement. Respondent contended that
appellant wanted to evict the respondent and then let out the flat at higher
rent. It was also contended that there were other flats in the building which
became vacant after filing of the suit and appellant had let out those flats
at higher rent. Appellant contended that she wanted the said flat as it was F
on the ground floor, contiguous to the ancestral building where she was
presently residing and also that the said flat faced a open piece of land
which belonged to her husband. It was also contended that being an old
lady she could not climb to the first floor where other flats were located
while the other ground floor flat faced a crowded road and was noisy. Trial G
Court accepted the reasons and passed decree for eviction. Respondent-
tenant filed a revision. High Court set aside the decree and dismissed the
eviction suit as the appellant did not occupy other flats which became
available in the same-building. Hence the present appeal.
Appellant contended that under Section 14(8) of the Act High Court H
1
2 SUPREME COURT REPORTS [2002] SUPP. 4 S.C.R.
A hnd revisional powers which were limited to satisfying itself that the order
passed by trial court was in accordance with law, thus High Court erred
in appreciating the entire evidence and arriving at a different conclusion.
Respondent contended that appellant was merely evicting him in
order to let out the premises at higher rent.
B
Allowing the appeal, the Court
HELD: I.I. Explanation II to Section ll(l)(c) of the Bihar Buildings
(Lease, Rent and Eviction) Act, 1982 permits the landlord to ignore other
premises and to prefer a particular premise. In the instant case, appellant
C indicated a preference for the flat occupied by respondent. She gave
reasons as to why she preferred this flat. Trial Court accepted these
reasons. High Court merely set aside the decree on the ground that
appellant had chosen not to occupy the three other flats which became
available in the same building. [7-B-E]
D 1.2. Appellant having made a preference cannot be forced to occupy
. other premises which may become available. Further the appellant was
not required to keep those premises vacant because her eviction suit was
pending, nor was there any duty cast on appellant, under any provision
of law, to offer those other premises to respon<l:ent. If respondent had so
E desired, he could have offered to vacate the flat preferred by landlady and
move into one of those other premises. If appellant had refused to accept
such an offer, it possibly could have been said that the landlady was merely
seeking to get vacant possession in order to get higher rents. In that case
it could have been inferred that the need of the appellant was not genuine
and/or in good faith. No such case has been made out and in view of the
F specific provision in the Act the r~asoning of High Court cannot be
sustained. In case appellant does not shift into the said premises, it will
be open to respondent to apply under Section 17 of the Act, for rt>storation
of possession. and for compensation. [7-E, F, H; 8-AI
G 2. High Cour! did not re-appreciate evidence to arrive at a different
conclusion. It merely set out the admitted facts and/or facts proved during
the course of trial. On the admitted or proved facts High Court felt that
the conclusion arrived at by trial court was unreasonable and perv.erse.
Therefore, High Court recorded its own finding. This the High Court was
entitled to do once it concluded that the findings of trial court were
H perverse. (6-G[
SAVITRI SAHAY v. S. PRASAD [S.N. Y'\RIAVA. J.] 3
Hirctlal Kapur v. Probhu Choudhury, fl 988) 2 SCC 172 and Sar/a A
Ahuja v. United Indian Insurance Company Ltd., 1199818 SCC 119, referred
to.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1472 of
1999.
B
From the Judgment and Order dated 24.9.1998 of the Patna High
Court in C.R. No. 1738 of 1996.
S.B. Sanyal, Akhilesh Kr. Pandey and Ashok Kr. Pandey, for the
I
Appellant.
c
Prabhash K. Yadav and Dr. K.S. Chauhan, for the Respondent.
The Judgment of the Court was delivered by
S.N. VARIA VA, J. The Appeal is against a Judgment dated 24th
September, 1998. D
Briefly stated the facts are as follows :
The Appellant is the owner of premises bearing No. 29A, Police Line
Road Ward No. IO, Bhagalpur Kutchery Road, Bhagalpur, U.P. The
Respondent is a tenant in one of the flats in the said building. The Appellant E
filed Title Eviction Suit No. 15 of 1991 against the Respondent on the ground
that the said flat was required by her for her own occupation. The Appellant
claimed that she was staying· in premises belonging to her son and that her
son had asked her to vacate the premises,. The Appellant claimed that she
wanted the flat occupied by the Respondent as it was on the ground floor and
on the northern side of the building and contiguous to the ancestral building F
where she was presently residmg, i.e. Shiva Bhawan. The Appellant also
claimed that the said flat faced an open piece of land which belonged to her
husband. The Appellant claimed that she being old could not climb to the
first floor and the ground floor flat on the south side of the building was not
suitable as it faced a crowded road and was noisy. G
In the written statement filed by the Respondent, the Respondent claimed
that there were !hree other flats in the same building, that after the filing of
the Suit those flats had fallen vacant and the Appellant had let out those flats
at higher rents. The Respondent also claimed that Shiva Bhawan, in which
the Appellant presently resides, is a palatial bungalow and that the Appellant H
4 SUPREME COURT REPORTS [2002] SUPP. 4 S.C.R.
A comes from a very affluent and dignified family and would not reside in the
small flat. The Respondent claimed that the Appellant was claiming possession
merely to get the Respondent out and then to let it out at a higher rent.
At this stage it would be convenient to set out the relevant provisions
of the Bihar Buildings (Lease, Rent and Eviction) Act, 1982 (hereinafter
B referred to as the said Act). Sections l l (1) ( c), 14(8) and l 7 of the said Act
read as follows:
11. Eviction of tenants.- (1) Notwithstanding anything contained in
any contract or law to the contrary but subject to the provisions of the
Industrial Disputes Act, 1947 (Act XIV of 1947), and to those of
c section 18, where a tenant is .in possession of any building, he shall
not liable to eviction therefrom except in execution of a decree passed
by the Court on one or more of the following grounds:-
xxx xxx xxx
D xxx xxx xxx
(c) where the building is reasonable and in good faith required by
landlord for his own occupation or for the occupation of any
person for whose benefit the building is held by the landlord:
Provided that where the Court thinks that the reasonable
E
requirement of such occupation may be substantially satisfied by
evicting the tenant from a part only of the building and allowing the
tenant to continue occupation of the _rest and the tenant agrees to such
occupation, the Court shall pass a decree accordingly, and fix
proportionately fair rent for the portion in occupation of the tenant,
F which portion shall henceforth constitute the building within the
meaning of clause (b) of section 2 and the rent so fixed shall be
deemed to be the fair rent fixed under section 5:
Explanation I.- In this clause the word ''landlord" shall hot include
an agent referred to in clause (f)· of section 2 .
G
EJ(planation II.- Where there are two or more premises let out by
the landlord. it will be for the landlord to choose which one would
be preferable to him and the tenant or tenants shall not be allowed to
question such preference.
H 14. Special procedure for disposal of cases for eviction on ground
SA VITRI SAHAY v. S. PRASAD [S.N. VARIA VA. J.] 5
of bona fide requirement- (l) Every suit by a landlord for the recovery A
of possession of any premises on the ground specified in clause (c)
or (e) ofyub-section (I) of section I I shall be dealt with in accordance
with the procedure specified in this section.
xxx xxx xxx
B
xxx xxx x;xx
(8) No appeal or second appeal shall lie against an order for the
recovery of possession of any premises made in accordance with
procedure specified in this section:
I
Provided that on an application being made within sixty days of C
the date of the order of eviction the High court may for the purpose
of satisfying itself that an order under the section is according to law,
call for the records of the case and pass such order in respect thereto
as it thinks fit.
xxx xxx xxx D
xxx xxx xxx
17. When a tenant ii entitled to restoration of possession and
compensation.- Where the landlord recovers possession of any
buildings from the tenant by virtue of a decree secured because of E
clauses (c) and (e) of sub-section (l) of section 11 and the building
is not occupied by the landlord, or by the person for whose benefit
the building is held, within one month of the. date of vacation of the
building by such tenant or the building, having been so occupied, is
re-let within six months of the date of such occupation to any person F
other than such tenant with the permission of the Controller, the
Court may, on the application of such tenant, made within one month
of his vacating the building, and giving the landlord an opportunity
of being heard by order direct the landlord to put such tenant in
possession of the building or to pay him such compensation as may
be fixed by the Court or both." G
Thus it is to be seen that, under the said Act, if there are two or more
premises the landlord could choose which one would be preferable to him or
her and the tenant cannot question such preference.
The Trial Court held that Explanation II to Section 11 (I) (c) permitted H
6 SUPREME COURT REPORTS [2002] SUPP. 4 S.C.R.
A the Appellant to prefer which premise she wanted. It was held that the
Appellant had proved that the same was required reasonably and in good
faith for her own occupation. The Trial Cou1t Therefore, passed a decree for
eviction.
As Section 14(8) barred an Appeal, the Respondent-tenant filed Revision
B in the High Court. The High Court after considering all the facts came to the
Appeal, conclusion th~t need of the Appellant cannot be said to be reasonable
and in good faith as she had let out, during the pendency of the proceedings,
three other flats in the same building even though they had fallen vacant and
she could have occupied those flats. The High Court, therefore, set aside the
C decree passed by the trial court and, by the impugned Judgment, dismissed
the Suit of the Appellant. Hence this Appeal.
Mr. Sanyal submitted that under Section 14(8) the High Court only had
revisional powers which were limited to satisfying itself that the order passed
by the Trial Court was in accordance with law. In support of this submission,
D he relied upon the case of Hirata/ Kapur v. Probhu Choudhwy reported in
[I 988) 2 SCC I 72, wherein it has been held, in the· context of Section 25(B)
(8) of the Delhi Rent Control Act, 1958, that even though the powers were
somewhat wider than similar powers under Section I I 5, yet the High Court
was not entitled to enter into merits of factual controversy between the parties.
Mr. Sanyal also relied upon the authority in the case of Sar/a Ahuja v. Untied
E Indian Insurance Company Ltd., reported in [1998) 8 SCC I 19, wherein
again, in the context of Section 25(8) (8) of the Delhi Rent control Act,
1958, it has been held that even though the word "revision" is not used the
powers of the Court under this Section are revisional in nature and a reappraisal
of evidence can be made only for the limited 'purpose of ascertaining whether
p the conclusion arrived at by the fact-finding Court is wholly unreasonable.
Relying on these authorities, Mr. Sanyal submitted that the High Court erred
in re-appreciating the entire evidence and arriving at a different conclusion.
We are unable to agree with the submission of Mr. Sanyal. We have
perused the impugned Judgment. The High Court did not re-appreciate
G evidence to arrive at a different conclusion. The High Court has merely set
out the admitted facts and/or facts which have been proved during the course
of trial. On the admitted or proved facts the High Court felt that the conclusion
arrived at by the Trial Court was unreasonable and perverse. Therefore, the
High Court recorded its own finding. The High Court was entitled to do· once
H it concluded that the findings of the Trial Court were perverse.
SAVITRI SAHAY v. S. PRASAD [S.N. VARIA VA, J.] 7
The next question which, however, arises is whether the conclusion of A
the High Court that the findings of the Trial Court were perverse can be said
to be correct. Under normal circumstances if a landlord during the trial gets
vacant possession of some other premises which are equally suitable and
chooses to let them out on higher rent then it may be arguable that the need
of the landlord, made out in the Eviction Petition, was not reasonable or in B
good faith. However, as seen above, the ~aid Act provides specifically, in
Explanation 11, that even though a landlord may have two or more premises
which have been let out, it is for the landlord to choose which one would be
preferable to him or her and the tenant could not question such preference.
In this case, the Appellant had indicated a preference for the flat occupied by
the Respondent. She had given a reason why she preferred this flat. She was C
an old lady. She therefore could not climb to the first floor and thus the two
flats on the first floor were not suitable to her. The other flat on the Southern
side of this building faced a road which was a very busy road and would
therefore be noisy. This particular flat faced the Bungalow in which she has
been residing for so many years and also faced an open piece of land belonging
to her husband. The Trial Court accepts these reasons. The High Court has D
merely set aside the decree on the ~round that the Appellant had chosen not
to occupy the three other flats which became available in the same building.
l In our view, Explanation II to Section 11(1) (c) permitted the landlord to
ignore other premises and to prefer a particular premise. The Appellant having
made a preference cannot be forced to occupy other premises which may E
become available. Further the Appellant was not required to keep those
premises vacant because her Eviction Suit was pending, nor was there any
duty cast on the Appellant, under any provision of law, to offer those other
premises to the Respondent. If the Respondent had so desired, he could have
offered to vacate the flat preferred by the landlady and move into one of
those other premises. If the Appellant had refused to accept such an offer, it F
possibly could have been said that the landlady was merely seeking to get
vacant possession in order to get higher rents. In that case it could have been
inferred that the need of the Appellant was not genuine and/or in good faith.
No such case has been made out. In view of the specific provision in the said
Act the reasoning of the High Court cannot be sustained. G
It was next urged that the Appellant was merely evicting the Respondent
in order to let out the premises at higher rent. It was urged that the Appellant
came from a very affluent and well known family in Bhagalpur and was
therefore not likely to shift into the said premises. In our view, Section 17
of the said Act, which has been set out hereinabove, is a complete answer to H
8 SUPREME COURT REPORTS (2002] SUPP. 4 S.C.R.
A this submission. In case the Appellant does not shift into the said premises,
it will be open to the Respondent to apply, under Section 17 of the said Act,
for restoration of possession and for compensation.
Jn this view of the matter, we allow the appeal, set aside the impunged
Judgment and restore the decree passed by the Trial Court. There will be no
B order as to costs.
Mr. Yadav requests that time be granted to the Respondent to vacate
the said flat. We grant to the Respondent time till 30th April, 2003 to vacate
the said flat on his filing in this Court, within six weeks from today, the usual
C undertaking.
NJ. Appeal allowed.
f
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