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Monday, February 20, 2017

Whether the requirement of the landlord for own occupation could also mean occupation by a member of the family, in this case, the son, is the short question arising for consideration.

 
                                                               REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                     CIVIL APPEAL NOS. 1398-1399 OF 2011



MEHMOODA GULSHAN                           …   APPELLANTS (S)

                                  VERSUS

JAVAID HUSSAIN MUNGLOO               …   RESPONDENT(S)



                               J U D G M E N T


KURIAN, J.:


Whether the requirement of the landlord for own occupation could  also  mean
occupation by a member of the family, in this case, the son,  is  the  short
question arising for consideration.

Appellant  filed  Civil  Suit  No.  42  of  2000  seeking  eviction  of  the
respondent from the premises let out to him on 15.11.1997 for  a  period  of
eleven months. The said tenancy was verbally extended for a  further  period
of eleven months though it was the contention of  the  respondent  that  the
said extension was for eleven years.  Since, the premises  was  not  vacated
after the  extended  period  of  eleven  months,  the  suit  was  filed  for
eviction.

Besides the ground on  expiry  of  the  period,  it  was  the  case  of  the
appellant that the premises was required for her  own  use.  To  quote  from
paragraph-5 of the plaint:

“5.   xxx        xxx         xxx        xxx        xxx

That the plaintiff has been deserted  by  her  husband  namely  :  Ch.  Mohd
Khatai who has arranged 2nd marriage in  the  state  of  Bangalore,  leaving
behind the plaintiff and  two  sons  namely  Shujat  Huyder  aged  27  years
unemployed and Waseem Hyder aged 15 years, presently reading in 9th class.

That the plaintiff has no source  of  income  after  the  desertion  by  her
husband and elder sons being of 27  years old is  still  unemployed  because
of the fact, that the son of the plaintiff namely Shujat Hyder is  simply  a
matriculate.

That the plaintiff being  a  house  lady  and  intends  to  use  the  rental
premises by observing his elder son to start his own business  as  such  the
plaintiff requires the rental premises for  her  son  who  can  support  the
family in the long run.

That the plaintiff has no other source of income except to  use  the  rental
premises by observing her elder son for starting his  own  business  in  the
rental premises.

That the son of the plaintiff cannot claim any Govt. service because of  the
fact he is simply a matriculate and he is at the verge of crossing  the  age
limit.

That the plaintiff cannot absorb her son  in  any  private  institution,  he
only alternative is to start his business in the rental premises.

That the plaintiff requires  the  rental  property  for  her  personal  use,
enabling her elder son to establish the business therein.

That the plaintiff has a liability of her sons, as such requires the  rented
property for establishing own business therein.”



The following issues were framed by the trial court:

“1.   Whether the defendant was bound to hand over  the  possession  of  the
suit premises to the plaintiff after the  period  of  tenancy  was  over  on
13.11.1999? OPP.

2.    Whether the plaintiff requires the suit premises  for  her  unemployed
son?... OPP

3.    Whether the plaintiff has rented the premises for period of 11  years,
as such  is  stopped  from  claiming  the  eviction  before  the  stipulated
period?... OPD

4.    What is the comparative advantage and disadvantage of the  parties?...
OPP/OPD

5.    Whether  the  requirement  of  the  plaintiff  will  be  satisfied  by
partially affecting the defendant from suit premises?... OPD

6.    To what relief the plaintiff is entitled to?”



Since we are concerned mainly with the requirement  on  the  ground  of  own
occupation, we confine references only to the consideration of issues 2  and
4.

“Issue No.2:     With regard to issue no.2  whether  the  plaintiff  require
the premises for her unemployed son.

      There is ample evidence on the file lead by the plaintiff as  well  as
admitted  in  cross  examination  by  the  defendant  that  the  husband  of
plaintiff has married with a Hindu girl at Cochin and he  is  residing  with
his second wife there. The plaintiff has two sons both  of  them  are  idle.
The elder one being of the aged of about 30 years is not doing any work  and
that way is idle. It is also on the record that he is not qualified so  that
he may aspire for  any  government  job  nor  has  it  been  proved  by  the
defendant that he is associated with the business of his father  at  Kochin.
Every parent has a cherished desire to get his or her ward settled  in  some
job so that he can have a sustenance in his life.  The  plaintiff  does  not
possess any commercial building other than the suit premises where  her  son
could start any business for his sustenance.  Though it is  settled  law  on
the subject that there is  a  difference  between  desire  and  requirement.
Requirement means when objectively seen there must  be  the  necessity  with
the party to require the premises for his own use. It is not a sheer  desire
only whether the landlord may show his intent to  occupy  the  premises.  So
there is a difference between the two situations and  while  differentiating
the two situations the evidences on the file is  sufficient  to  prove  that
the son of the plaintiff is in his 30s and is  still  idle.  In  these  hard
times, the family requirements cannot be  met  by  mere  rent  of  Rs.5000/-
which defendant is paying. So  in  the  given  circumstances,  it  has  been
proved by the plaintiff that plaintiff requires the suit  premises  for  her
unemployed son. The defendant has though tried to controvert  this  position
but have not been able to convince the court that the son of  the  plaintiff
is in any manner associated with the business of his father  at  Cochin.  So
this issue is also decided in favour of the plaintiff.

Issue  No.4:  With  regard  to  issue  no.4  of  comparative  advantage  and
disadvantage of the parties, the law on the subject is very  clear  that  we
have to take into account while comparing the advantages  and  disadvantages
of the respective parties the interests of the person for whose benefit  the
house and shop is  held  whether  he  being  landlord  or  the  tenant.  The
explanation to clause (h) of the  J&K  Houses  and  Shop  Rent  Control  Act
contains specific  provisions  regarding  the  weighing  and  measuring  the
relative hardship which may be caused to the tenant or landlord in  case  of
granting or refusing a decree for eviction. The  principle  of  law  enacted
with the expansion is to the effect that the law will lean in favour of  the
person to whom the greater inconvenience and hardship is  caused  and  would
grant the relief to the landlord only  when  his  hardships  are  likely  to
exceed the hardships which may be caused to the tenant. Thus,  the  question
of comparative advantage and disadvantage has an important  bearing  on  the
question of granting or refusing the relief.  The  question  of  balance  of
convenience or principle of  comparative  advantage  and  disadvantage  will
come up only when the court is satisfied that the  premises  are  reasonably
required by the landlord or any person for whose behalf the  house  or  shop
is held. But before this is to  be  decided,  the  court  has  to  find  and
determine two things i.e. I) reasonable requirements of the landlord or  the
person for whose  benefit  the  house  or  shop  is  held;  II)  comparative
advantage and disadvantage of the landlord or any person and the tenant  and
these two ingredients must coexist. So what is to be  seen  while  comparing
these two aspects, we have to consider the  reasonable  requirement  of  the
landlord or ejectment of his tenant.  The  question  of  requirement  always
differs from case  to  case  depending  on  the  facts  of  its  own.  While
comparing advantages and disadvantages of the parties, we have to apply  our
mind objectively firstly to this aspect whether requirement of the  landlord
is real and is only not a desire, but  there  is  some  compulsion  that  he
requires the premises for his own use and it is also to be seen  whether  by
eviction the defendant may not be put to such a  disadvantage  in  which  he
cannot be compensated. So, the need of the landlord  must  be  pressing  one
and real. Applying this test to the facts of the  instant  case  and  taking
stock of  the  evidence  recorded  by  the  defendant  as  well  as  by  the
plaintiff, it is  not  disputed.  It  is  also  in  the  evidence  that  the
landlords is not having any source of income other than  the  rent  received
through Rent controller and naturally speaking the amount of  Rs.5000/-  per
month is so paltry amount in these hard times when every item of the day  to
day needs is so costly that hardly she cannot sustain her  family.  Thus  in
the given situation it is the landlord whose need is more pressing and  real
an is put to disadvantage in comparison to the disadvantage which  would  be
caused to the defendant by eviction because the machinery installed  can  be
removed with much case  and  he  can  get  on  rent  any  other  alternative
premises in the vicinity and that will not put to jeopardy the interests  of
the defendant. Therefore, the  comparative  advantage  and  disadvantage  is
also in favour of the landlord. Hence, this issue is also decided in  favour
of the plaintiff.”



Issue No. 5, on partial  eviction,  was  also  answered  in  favour  of  the
plaintiff. Thus, by judgment dated 12.12.2007, the suit was decreed.

Aggrieved, the respondent filed Civil First Appeal No. 228  of  2007  before
the High Court of Jammu and Kashmir at Srinagar. The learned  Single  Judge,
by judgment dated 04.08.2009, allowed the appeal. According to  the  learned
Single Judge:

“From the pleadings it would appear that the premises is  required  for  the
son of the respondent. The respondent’s case  before  the  trial  court  was
that her son was unemployed and that the suit premise was required for  him.
The trial Court, as noticed above, found that the respondent  has  two  sons
both of them are alive. The elder one of the age of 30 years, is  not  doing
any work and that way is idle. The trial Court has further  found  that  the
son of the respondent is not  qualified  so  that  he  may  aspire  for  any
government job. On going through the  evidence  it  would,  however,  appear
that the findings are based on either the statement of the plaintiff or  her
witnesses. The best  witness  in  these  circumstances,  to  depose  on  the
personal requirement was the son of the respondent himself but  he  has  not
been examined as witness before the trial Court.  No  explanation  has  been
given for his non examination.”



It was also held that:

“There is nothing in the  statement  of  the  respondent  which  could  even
indirectly suggest the nature of the business that her son intends to  carry
on this property, his resources to carry on the business  and  his  aptitude
and physical strength and other facts requisite for  such  a  purpose.  Thus
the evidence is so vague that no reliance can be placed on it.

Reasonable requirement is a question of law but whether  the  landlord  has,
in a suit for eviction under Section 11 (h) of  the  J&K  Houses  and  Shops
Rent Control Act, proved it or not is essentially a question of  fact.  Onus
to prove is on the plaintiff. While judging the requirement  of  a  landlord
(or the person for whose use the shop is required), the court  has  to  take
into account a  variety  of  factors  such  as  the  social  status  of  the
concerned person, the standard of his living, his habits, his comforts,  the
state of his health, the  number  of  his  family  members,  the  nature  of
business he intends to start and the suitability of the  property  for  such
business, the resources he has got to run the business and the like. If  the
very person who needs the shop for his use is  reluctant  to  appear  before
the Court, the Court would not extend any help to him and  would  not  grant
any relief in his favour.”



Aggrieved, the appellant filed intra-court appeal as Letters  Patent  Appeal
No. 175 of 2009 leading to  the  impugned  judgment  dated  23.10.2009.  The
Division Bench concurred with the learned Single Judge  and  held  that  the
appellant has failed to  prove  that  the  premises  was  required  for  own
occupation, and hence, the appeal.

Heard Mr. V. Giri, learned Senior Counsel appearing for  the  appellant  and
Ms. Diksha Rai, learned Counsel appearing for the respondent.

Section 11(1)(h) of the Jammu and Kashmir Houses and Shop Rent Control  Act,
1966 (hereinafter referred to as “the Act”), is the relevant provision:

“Section 11(1)(h) “… where the house or shop is reasonably required  by  the
landlord either for the purposes of building or re-building, or for his  own
occupation or for the occupation of any person for whose benefit  the  house
or shop is held;”



The main ground on which the appellant was non-suited in  the  first  appeal
and the intra-court appeal is that the appellant  has  failed  to  establish
her reasonable requirement for own occupation. Having not examined  the  son
who  intends  to  do  the  business,  according  to  the  High  Court,   the
requirement of own occupation was not established.

We fail to understand the approach made by the High Court.  It  has  clearly
come in evidence of the appellant that her one  son  is  unemployed  and  in
view of  unemployment,  he  was  frustrated.  The  appellant’s  husband  had
contracted second marriage and he had deserted the appellant. The  appellant
herself was unemployed with no  source  of  income.  The  appellant,  hence,
prayed that the property be returned to her so that her son can  look  after
the family. In cross-examination, she denied the  suggestion  that  the  son
was doing business with his father. It had also  been  stated  further  that
“except the premises and the residential house, the plaintiff has  no  other
property”. The trial court has meticulously  analyzed  and  appreciated  the
reasonable requirement of the premises for the business  to  be  managed  by
the son of the appellant especially in her  peculiar  family  circumstances.
In our  view,  trial  court  has  appreciated  the  evidence  in  the  right
perspective and held that it is  not  mere  desire  but  genuine  need.  The
finding of the trial court was challenged mainly  on  the  ground  that  the
son, for whose benefit the eviction is sought, has not been examined.

Mere non-examination of the family member who intends  to  do  the  business
cannot be taken as a ground for repelling the reasonable requirement of  the
landlord. Under the Act, the landlord needs to establish only  a  reasonable
requirement. No doubt, it is not a simple  desire.  It  must  be  a  genuine
need. Whether the requirement is based on a desire or need, will  depend  on
the facts of each case.

In Bega Begum and others v. Abdul Ahad Khan (dead) by  Lrs.  and  others[1],
this Court has taken the view that the requirement only connotes an  element
of genuine need. To quote from paragraph-13:


“13.  Moreover,  Section  11(h)  of  the  Act  uses  the  words  “reasonable
requirement” which undoubtedly postulate that there must be  an  element  of
need as opposed to a mere desire or wish.  The  distinction  between  desire
and need should doubtless be kept in mind but not so as  to  make  even  the
genuine need as nothing but a desire as the High  Court  has  done  in  this
case.  It  seems  to  us  that  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 a  decree  for  eviction.  Such  a  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 States 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.”



Bega  Begum  (supra)  has  also  considered  the  scope  and  ambit  of  the
expression “reasonable requirement” at paragraph-17:


“17. This brings us to the next limb of the argument of the learned  Counsel
for the respondents regarding the interpretation of Section 11(1)(h) of  the
Act. Section 11(1)(h) of the Act runs thus:

“11(1)(h… where the house or shop is reasonably  required  by  the  landlord
either for purposes of building or rebuilding, or for his own occupation  or
for the occupation of any person for whose benefit  the  house  or  shop  is
held;

Explanation.—The Court in determining the reasonableness of requirement  for
purposes of building or rebuilding shall  have  regard  to  the  comparative
public benefit or disadvantage by extending  or  diminishing  accommodation,
and in determining reasonableness of requirement for occupation  shall  have
regard to the comparative advantage or disadvantage of the landlord  or  the
person for whose benefit the house or shop 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 occupation of any person  for
whose benefit the house or shop is held”. It was argued 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 argument. The provision 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 a business or running a  hotel  in  the
shop which also would amount to personal occupation by the landlord. In  our
opinion, 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 a hotel  in  the  house,  he  is  undoubtedly  in
possession or occupation of the house  in  the  legal  sense  of  the  term.
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 Joginder Pal v. Naval Kishore Behal[2], after  extensively  referring  to
all the decisions of this Court and some other  High  Courts,  it  was  held
that in interpreting “own use”, the  court  should  adopt  a  practical  and
meaningful approach guided by realities of life. The  guidelines  are  being
summarized at paragraph-33:

 “33. Our conclusions are crystallised as under:


(i) The words “for his own use” as occurring in Section 13(3)(a)(ii) of  the
East Punjab Urban Rent Restriction Act, 1949 must receive  a  wide,  liberal
and useful meaning rather than a strict or narrow construction.
(ii) The expression — landlord requires for “his own use”, is  not  confined
in its meaning to actual physical  user  by  the  landlord  personally.  The
requirement not only  of  the  landlord  himself  but  also  of  the  normal
“emanations” of  the  landlord  is  included  therein.  All  the  cases  and
circumstances in which actual physical occupation or user by  someone  else,
would amount to occupation or  user  by  the  landlord  himself,  cannot  be
exhaustively enumerated. It will depend on a  variety  of  factors  such  as
interrelationship and interdependence — economic or otherwise,  between  the
landlord and such person in the background of  social,  socio-religious  and
local customs and obligations  of  the  society  or  region  to  which  they
belong.
(iii) The tests to be applied are: (i) whether the requirement  pleaded  and
proved may properly be regarded as  the  landlord’s  own  requirement;  and,
(ii) whether on the facts and in the circumstances of a given  case,  actual
occupation and user by a person other than the landlord would be  deemed  by
the landlord as “his own” occupation or  user.  The  answer  would,  in  its
turn, depend on (i) the nature and degree of relationship and/or  dependence
between the landlord pleading the requirement as “his own”  and  the  person
who would actually use the premises; (ii) the  circumstances  in  which  the
claim arises and is put forward; and (iii) the intrinsic tenability  of  the
claim. The court on being satisfied of the reasonability and genuineness  of
claim, as distinguished from a mere ruse to get  rid  of  the  tenant,  will
uphold the landlord’s claim.
(iv) While casting its judicial verdict, the court shall adopt  a  practical
and meaningful approach guided by the realities of life.
(v) In the present case,  the  requirement  of  the  landlord  of  the  suit
premises for  user  as  office  of  his  chartered  accountant  son  is  the
requirement of landlord “for his own use”  within  the  meaning  of  Section
13(3)(a)(ii).”



Joginder Pal (supra) was followed  in  many  subsequent  decisions  and  one
close to the dispute in the instant case is Ajit Singh and  another  v.  Jit
Ram and another[3]. It has been held at paragraph-19:

“19. From the aforesaid decision of this Court (in Joginder  Pal  case),  it
is therefore clear that this Court has laid down authoritatively that a non-
residential premises, if required by a son for user by him would  cover  the
requirement of the words used in the section  i.e.  “for  his  own  use”  in
reference to a landlord. …”



In C. Karunkaran (dead) by Lrs. v. T. Meenakshi[4], one  issue  which  arose
for consideration was whether non-examination of the person for  whose  need
the building was required was fatal. It was held that “mere  non-examination
of the person for whose need the building was  required  by  itself  was  no
ground to non-suit the landlady”. To quote:

“… Mere non-examination of the  person  for  whose  need  the  building  was
required by itself was no ground to non-suit the landlady. In  a  number  of
decisions, [this fact is acknowledged by the first  appellate  court  also],
it has been held that it is not necessary to examine the  person  for  whose
need the premises are required. It depends on the  facts  and  circumstances
of each case. …”.



In Gulraj Singh Grewal v. Dr. Harbans Singh and another[5], this  Court  had
an occasion to see whether a landlord can be non-suited  on  the  ground  of
non-examination of the son for whose benefit the premises is  sought  to  be
vacated.  This  Court  held  that  in  case  the  need  has  otherwise  been
established in evidence, the non-examination is not material. At  the  best,
it is only a matter of appreciation of evidence.  To  the  extent  relevant,
paragraph-8 reads as follows:

“8. Learned counsel for the  appellant  submitted  that  the  personal  need
found proved is only of respondent 2, son  of  respondent  1,  who  did  not
enter the witness-box and, as stated in an affidavit filed  in  this  Court,
even he is carrying on his profession at a place about  25  kms.  away  from
Ludhiana, in our opinion, this finding of fact  is  unassailable.  The  High
Court has clearly observed that no meaningful argument could be advanced  on
behalf  of  the  appellant  to  challenge  this  finding  of  the  appellate
authority. Respondent 1 who is the father of  respondent  2,  has  supported
and proved the need of respondent 2, who also is a landlord. The  fact  that
for want of suitable accommodation in the city of Ludhiana, respondent 2  is
at present carrying on his profession at some distance from Ludhiana is  not
sufficient to negative the landlord’s need. In these circumstances, the non-
examination of respondent 2 also, when respondent  1  has  examined  himself
and proved the need of the landlord, is immaterial and, at  best,  a  matter
relating only to appreciation of evidence, on which ground this  finding  of
fact cannot be reopened. … .”



 Thus, the question is whether there is  a  reasonable  requirement  by  the
landlord of the premises. This would depend  on  whether  the  landlord  has
been able to establish a genuine element of need for the premises.  What  is
a genuine need would depend on the facts and  circumstances  of  each  case.
Merely because the landlord has not examined the member of  the  family  who
intends to do business in the premises, he cannot be non-suited in  case  he
has  otherwise  established  a  genuine  need.  The  need  is  a  matter  of
appreciation  of  evidence,  and  once  there  is  no  perversity   in   the
appreciation of evidence on the need, the said finding  of  fact  cannot  be
reopened. It may be crucially relevant to note  that  the  eviction  is  not
sought on the last limb of Section 11(1)(h) of  the  Act  namely,  “for  the
occupation of any person for whose benefit the house or shop is held”.   The
premises sought to be evicted is not held for the benefit of the son  alone;
but the whole family. It is for the own occupation of the landlord.  It  has
been established in the facts of this case that the landlord was  not  happy
and content with the paltry rent received from the  premises.  The  landlord
intended to engage her son in the business at the premises. It  is  for  the
landlord to decide as to the best use the premises should be put  to.  There
is nothing wrong on the part of a landlord in  making  plans  for  a  better
living by doing business engaging her son. Having regard to  the  background
of the son who is unemployed and undereducated, the appellant  was  able  to
establish that business was the available option and the  tenanted  premises
was the only space available. Thus, the genuine need for  the  premises  has
been established. Unfortunately, the High Court  has  missed  these  crucial
aspects.

The appellant having established a reasonable requirement  of  the  tenanted
premises for own occupation, is entitled to succeed. Therefore, the  appeals
are allowed. The judgment of the learned Single Judge in  the  first  appeal
and confirmed in the intra-court appeal by  the  Division  Bench,  which  is
impugned in these appeals, is set aside. The  judgment  and  decree  of  the
trial court is restored. The respondent is granted a period of three  months
to surrender vacant possession.

There shall be no order as to costs.


                                                           …...…..………………….J.
                                                    (KURIAN JOSEPH)



                                                           ...……..………………….J.
            (A.M. KHANWILKAR)


NEW DELHI;
FEBRUARY 17, 2017.
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[1]    (1979) 1 SCC 273

[2]    (2002) 5 SCC 397

[3]    (2008) 9 SCC 699
[4]    Civil Appeal No. 2773 of 2002 decided on 06.10.2005
[5]    (1993) 2 SCC 68



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