the Tamilnadu Buildings (Lease and Rent Control) Act, (hereinafter referred to as the ‘Act’) =In the result, the Civil Revision petition is allowed and the impugned orders are set aside and RCOP.No.37 of 1986, is allowed and eviction is ordered on the ground of subletting. The respondents shall vacate and hand over vacant possession of the petition premises to the petitioners/landlords within a period of two months from the date of receipt of a copy of this order. No costs. =(i) In order to prove mischief of subletting as a ground for eviction under rent control laws, two ingredients have to be established, (one) parting with possession of tenancy or part of it by tenant in favour of a third party with exclusive right of possession and (two) that such parting with possession has been done without the consent of the landlord and in lieu of compensation or rent. (ii) Inducting a partner or partners in the business or profession by a tenant by itself does not amount to subletting. However, if the purpose of such partnership is ostensible and a deed of partnership is drawn to conceal the real transaction of sub-letting, the court may tear the veil of partnership to find out the real nature of transaction entered into by the tenant. (iii) The existence of deed of partnership between tenant and alleged sub-tenant or ostensible transaction in any other form would not preclude the landlord from bringing on record material and circumstances, by adducing evidence or by means of cross-examination, making out a case of sub-letting or parting with possession in tenancy premises by the tenant in favour of a third person. (iv) If tenant is actively associated with the partnership business and retains the control over the tenancy premises with him, may be along with partners, the tenant may not be said to have parted with possession. (v) Initial burden of proving subletting is on landlord but once he is able to establish that a third party is in exclusive possession of the premises and that tenant has no legal possession of the tenanted premises, the onus shifts to tenant to prove the nature of occupation of such third party and that he (tenant) continues to hold legal possession in tenancy premises. (vi) In other words, initial burden lying on landlord would stand discharged by adducing prima facie proof of the fact that a party other than tenant was in exclusive possession of the premises. A presumption of sub-letting may then be raised and would amount to proof unless rebutted.

IN THE H IGH COURT OF JUDICATURE AT MADRAS DATED:07.02.2012 CORAM THE HONOURABLE Mr. JUSTICE T.S.SIVAGNANAM CRP (NPD) No.1317 of 1995 1.M.S.Hohammed Jahabar Kadiri (Deceased) 2.Ummal Bajira 3.M.J.K.Haja Shaik Alloudeen 4.Mumtaz Begam ... Petitioners P2 to P4 as legal heirs of the deceased 1st petitioner vide order of this Court, dated 24.12.2003 made in CMP.14127/2003 Vs. 1.G.Govindaraju 2.Pangajam Ammal 3.R.Prabakaran 4.Ramadoss (Died) 5.R.Neelavathi 6.Vinayakamurthy 7.Senthamarai 8.Mala 9.Kavitha ... Respondents R5 to R9 as legal heirs of the deceased fourth respondent vide order of this Court, dated 05.11.2011, made in CMP.886/2010. Prayer: Civil Revision Petition filed against the order and decreetal order dated 18.10.1994, made in RCA.NO.12 of 1990, on the file of Rent Control Appellate Tribunal (Sub Court), Nagapattinam, confirming the judgment and decree dated 24.10.1989, made in RCOP.No.37 of 1986, on the file of Rent Controller (District Munsif), Tiruvarur. For Petitioners : Mr.K.Chandrasekaran For Respondents : Mr.P.Gopalan for RR3,5&6 RR7-9 Given up O R D E R This revision petition filed, under Section 25 of the Tamilnadu Buildings (Lease and Rent Control) Act, (hereinafter referred to as the 'Act') is directed against the order dated 18.10.1994, made in RCA.No.12 of 1990, on the file of the of Rent Control Appellate Tribunal (Sub Court), Nagapattinam, confirming the judgment and decree dated 24.10.1989 in RCOP NO.37 of 1986 on the file of Rent Controller (District Munsif), Tiruvarur. 2. The Revision petitioner (since deceased) is the landlord and the respondents herein were the respondents in the eviction petition. The landlord filed RCOP No.37 of 1986, for eviction of the respondents from the petition premises on the ground of subletting and for his own use and occupation. It is stated that during 1960, the property was leased out to Manickam Chettiyar and Sundresa Mudaliyar for running coffee power business on a monthly rent of Rs.60/-. The terms and conditions of the lease were reduced into writing by two registered lease deeds dated 18.07.1960 and 06.01.1966. Subsequently, two other unregistered lease agreements were executed on 01.07.1970 and 01.06.1978. Initially the lease was in respect of Door No.64, and after 01.06.1978, the adjacent door No.64/1 was also given on lease. The landlord further stated that after the demise of the registered leases though no lease agreements were entered into between the respondents 1 and 2 as they were the legal heirs of the said Manickam Chettiyar and Sundresh Mudaliyar and being partners of the coffee power business, they were in occupation of the petition premises, (the first respondent is the son in law of Mainckam Chettiyar and the second respondent is the wife of Sundresa Mudaliyar). The landlord further stated that there was no right conferred on the tenants to sublet the property, however the respondents 1 and 2 stopped carrying on business and sublet the premises to the third respondent, who is running the business along with the fourth respondent, his father. Therefore, the landlord contended that the respondents are liable to be evicted on the ground of subletting. The landlord further sought for eviction on the ground of requirement of the premises for his own use and occupation, by stating that the shop in which he was running a provision store, had been given to son-in-law and therefore, he is desirous of staring a new business in the petition premises as he does not own any other shop. 3. The first respondent filed a counter statement denying the allegation of subletting. It was stated that the fourth respondent alone was running the business even during the life time of Manickam Chettiyar and Sundresa Mudaliyar and he was running the same in the capacity as partner, though the business was in the name of Manickam Chettiyar and Sundresa Mudaliyar. Since the lease agreement could be entered into only in the name of the partners, it was entered into in the names of Manickam Chettiyar and Sundresa Mudaliyar, however they were not involved in the business. After the demise of the partners of Bharath Coffee Works, the respondents 1 and 2 became partners and subsequently, retired from the partnership business after receiving consideration from the fourth respondent and thereafter, the respondents 3 and 4 along with their family members, are running the business as partners. That on and after 01.10.1984, the respondents 1 and 2 are no manner involved with the business and since the fourth respondent was running the business, there is no subletting. The plea of the landlord that he requires petition premises was denied as lacking in bonafides. The fourth respondent filed separate counter statement virtually reiterating the stand of the first respondent. 4. Before the learned Rent Controller, the landlord examined himself as PW-1 and three other witness were examined as PW-2 to 4 and thirty documents were exhibited as Exhibits A1 to A30. The respondents 1 and 4 were examined as RW-1 &2 and one Packrisamy was examined as RW-3 and nine documents were marked as Exhibits R1 to R9. The learned Rent Controller framed three questions for consideration, whether, the landlord requires the premises for own use and occupation, whether the respondents 3 &4 are sub-tenants and whether the eviction petition is liable to be dismissed for non-joinder of necessary party. The learned Rent Controller decided all the three questions against the landlord and dismissed the eviction petition. 5. The landlord preferred an appeal in RCA.No.12 of 1990, and the learned Appellate Authority concurred with the findings of the learned Rent Controller and the appeal was dismissed. Aggrieved by the same, the present revision has been filed by the landlord. 6. It is seen that during the pendency of the revision petition, the landlord died and his legal representatives have been brought on record. Likewise the fourth respondent died and his legal representatives have been brought on record. Since the landlord claimed that he requires the petition premises for his own business, the landlord having died pending this revision petition, there would not be any necessity to decide the said issue. Therefore, the only question to be decided in this revision is whether, the respondents 3 & 4 are sub-tenants. Before deciding this issue, it has to be seen as to under what circumstances this Court would be justified in interfering with the concurrent findings of the Courts below in exercise of the powers conferred under Section 25 of the Act. 7. I have elaborately heard Mr.K.Chandrasekaran, learned counsel for the petitioner and Mr.P.Gopalan learned counsel for respondents and carefully perused the materials available on record. 8. The power conferred under Section 25 of the Act, is undoubtedly wider that the power provided in Section 115 of the Civil Procedure Code. This Court while exercising its revisional jurisdiction under Section 25 of the Act, has to satisfy itself as to the correctness, propriety and legality of any decision. When the Courts failed to appreciate the oral and documentary evidence in its entirety and when it rendered a finding not warranted on the materials available, such orders though may be concurrent are liable to be interfered with. The Hon'ble Supreme Court has held that the revisional power is not be exercised to upset concurrent findings of fact merely on the ground that different view is possible. However, when the findings are perverse even such concurrent findings are not immune from challenge. The learned counsel for the petitioner placed reliance on the decision of this Hon'ble Full Bench of this Court in A.Aishath Najiya vs. Messrs. Lalchand Kewalram & Ors, 1989 2 L.W. 123, wherein the Hon'ble Full Bench held as follows:- 27. In this case, I make it very clear that I am not reappraising the evidence on record. I am only pointing out as to how both the Rent Controller and the Appellate Authority in disregard of the statutory provisions, proceeded to assess the evidence from angles which are not warranted by the statute, from perspectives which are not contemplated under the statute. In such a case, certainly the revisional power could be exercised where the approach itself is totally wrong. Hence this decision cannot help the respondents. 9. Further, this Court in P.K.Vijayan and Ors. vs. M/s.Kalaimagal Account Book Shop, (2000) 2 MLJ 495, and P.K.M.S. Jailani Beevi vs. J.Mohan Lal, 2001 (2) CTC 22, laid down the circumstances in which this Court would be justified in interfering with concurrent findings recorded by the Rent Controller and the Appellate Authority. At this stage, it would be beneficial to quote the relevant paragraphs of the judgment in the case of Jailani Beevi:- 25. The learned counsel for the petitioner/respondent cited a number of decisions of the Supreme Court and this Court for the position that interference under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, is clearly circumscribed. The decisions relied on by the petitioner/respondent are listed below: 1. Phiroze Bamanji Desai v. Chandrakant, AIR 19743SCR267 ; 2. Mattulal v. Radhe Lal, AIR 1974 SC 1596; 3.Children's Choice v, Adiseshiah, 1982 (1) MLJ 411; 4.Hameedia Hardware Stores v. Mohan Lal Sowcar, AIR 1988 SC 1060 ; 5. Gajendra Sha v. Govindarajan, 1996 (1) CTC 492 ; 6. Hotel De-Broadway, Etc. v. M/s Snow White Industrial Corporation, 1997 (1) CTC 193; 7. Mohammed @ Bawa Sahib v. Vimalckand, 1998 (II) MLJ 619; 8. The South India Corporation Agencies Ltd. v. Chandrakanth C. Bandani, 1998 (1) CTC 674; 9. Jothi Ammal v. Kulandai Vadivel, 1999 (II) MU 35; 10. Munawar Jan Begum v. Subramaniam, 2000 (1) MLJ 19. Dealing with the revisionary powers under the Bombay Rents, Hotel and Lodging House Rates control Act (57 of 1947). the Supreme Court in Phiroze Bamanji Desai v. CM. Patel, AIR 1974 SC 1059 has held that the High Court cannot reassess the value of the evidence and interfere with the finding of fact merely because it thinks that the appreciation of the evidence by the lower court is wrong and the court should have reached a different conclusion of fact from what it did. Only if the lower Court had applied a wrong test on a misconstruction of the word 'requires' the finding recorded by it would have been vitiated by an error of law. In Mattulal v. Rade Lal, AIR 1974 SC 1596, the Supreme Court held that the finding reached by the First Appellate Court on an appreciation of evidence that the landlord does not bona fide require the premises in question for the purpose of starting business as a dealer in iron and steel materials is a finding of fact and not a finding of mixed law and fact and it cannot be interfered with by the High court in second appeal unless it is shown that in reaching it a mistake of law is committed by the Appellate Authority or it ia based on no evidence or is such as no reasonable man can reach, In Children's Choice v. Adiseshana, 1982 (1) MLJ 411, T.N.Singaravelu, J. has pointed that if the bona fides of the landlords had been proved, the relative hardship of the parties in the event of eviction should also be considered before ordering eviction under Section 10(3)(c) of the Act. It has been held in Hammedia Hardware Stores v. Mohan Lal Sowcar, AIR 1988 SC 1060 that the landlord should establish that he bona fide requires premises, in addition to proving other ingredients referred to in Sec. 10(3)(a)(iii) for getting an order of eviction. In Gajendra Sha v. Govindarajan, 1996, (1) CTC 492, Abdul Wahab, J. (as the learned Judge then was) considered the requirement of the petition building by the landlord for the purpose of carrying on his own business under Section 10(3)(a)(iii), the tenant disputing the claim of the landlord as lacking in bona fides. Factually it was found that it was highly impossible to apprehend that such a flourishing business would be shifted to a narrow lane, especially when there was no threat of eviction and the accommodation was much more than what the landlord was going to get in the petition building. The learned Judge found that the petition was lacking in bona fides. In Hotel De-Broadway Etc. v. M/s. Snow White Industrial Corporation, Etc, 1997 (1) CTC 193: 1997 (1) LW 421 it has been held by K.Govindarajan, J. that mere inconvenience of tenant cannot deprive, landlord of his bona fide right to have additional accommodation. The concurrent findings about bona fides of landlord cannot be disturbed merely on the plea of the tenant as to difficulty of finding alternative accommodation in the area and it is not a relevant ground for rejecting the claim of the landlord. The mere fact that the tenant cannot get alternative accommodation alone cannot be the basis to reject landlord's claim. It is not the object of S. 10(3)(c) to weigh the hardship to tenant as against advantage of landlord on the delicate scales of giving benefit of a slight tilt in favour of the tenant. In Mohammed @ Bawa Sahib v. Vimalchand, 1998 (II) MLJ 619 the same learned Judge has held that eviction petition by the landlord as kartha of joint family seeking premises for his brother's requirement is not maintainable under Section 10(3)(a)(iii). It was also held that the requirement was not bona fide. In The South India Corporation Agencies v. Chandrakanth C.Badani, 1998 (1) CTC 674, the same learned Judge has held that unless there is perversity in the matter of appreciation of evidence by authorities revisional court will not interfere with concurrent findings. In Jothi Ammal v. Kulandai Vadivel, 1999 (II) MLJ 35 the learned Judge has considered the scope of applicability of Sec. 10(3)(c). In Munawar Jan Begum v. Subramaniam, 2000 (1) MLJ 19 has held that unless perversity is writ large on the face of the judgments rendered by the lower authorities, it is not desirable for the revisional court to interfere with the concurrent findings of the lower authorities. 10. Thus, the legal principle which could be culled out from the aforementioned decision are that if the findings of the authorities below though concurrent, if had been rendered without looking into the evidence, such decision can never be said as in accordance with law and this Court is fully justified in interfering with the concurrent findings. 11. The learned counsel for the petitioner strenuously contended that the authorities below concurrently erred in disregarding the evidence and failed to apply the law relating to subletting, which have been crystallized in various decisions of the Hon'ble Supreme Court and this Court. After having gone through the pleadings and the evidence, more particularly, the evidence of PW-1 (landlord) and RW-1 (first respondent) and RW-2 (fourth respondent), the controversy to be decided lies in a very narrow campus. It is not in dispute that the lease agreement both the registered and unregistered documents stood in the name of Manickam Chettiyar and Sundresa Mudaliyar. It is also not in dispute that the first respondent is the son-in-law of Manickam Chettiyar and the second respondent is the wife of Sundresa Mudaliyar. After the demise of the tenants (Manickam Chettiyar and Sundresa Mudaliyar) respondents 1 & 2, continued in the capacity of legal heirs of the original tenants. During that period, there appears to have been a dispute as regards the quantum of rent and RCOP No.4 of 1980, was filed by Bharath Coffee Works, represented by its Managing Partner, S.Govindaraju, (1st respondent) under Section 8(5) of the Act, to deposit the rent into Court. 12. Admittedly, no lease agreement was entered into respondents 1 and 2. Likewise, there is no material to show that the respondents 1 and 2 organised themselves into a registered partnership and such registration, which was done during 1975 under Exhibit R7 was with the knowledge of the landlord. In other words, there is no evidence to show that the landlord was aware that the respondents 1 and 2 constituted themselves into a partnership, which was registered on 13.08.1975. From the cross examination of PW-1, it appears that the landlord was aware that the fourth respondent was assisting the tenants (Manickam Chettiyar and Sundresa Mudaliyar) in running the Coffee works business and another by-cycle business. 13. The crucial question which has to be seen here is whether the respondents 3 and 4 became sub-tenants to respondents 1 and 2, there would not have been any difficulty if the respondents 1 and 2 continued the business and the fourth respondent was assisting them in the business. However, from the evidence of RW-1, it is clear that on and after 01.10.1984, the respondents 1 and 2 retired from the partnership business after receiving consideration from the fourth respondent and the firms stood re-constituted by making the respondents 3 and 4 along with their family members as partners of the business. Admittedly, such re-constitution was without the knowledge and consent of the landlord. Therefore, the question is whether this would amount to subletting. The Hon'ble Supreme Court in Ms.Celina Coelho Pereira & Ors vs. Ulhas Mahabaleshwar Kholkar & Ors, (2010) 2 L.W. 414, was considering a Rent control proceedings, where eviction was sought for on the ground of subletting. The Hon'ble Supreme Court after analyzing elaborately the case laws on the said point, summarized the legal position on the following lines:- 28. The legal position that emerges from the aforesaid decisions can be summarised thus: (i) In order to prove mischief of subletting as a ground for eviction under rent control laws, two ingredients have to be established, (one) parting with possession of tenancy or part of it by tenant in favour of a third party with exclusive right of possession and (two) that such parting with possession has been done without the consent of the landlord and in lieu of compensation or rent. (ii) Inducting a partner or partners in the business or profession by a tenant by itself does not amount to subletting. However, if the purpose of such partnership is ostensible and a deed of partnership is drawn to conceal the real transaction of sub-letting, the court may tear the veil of partnership to find out the real nature of transaction entered into by the tenant. (iii) The existence of deed of partnership between tenant and alleged sub-tenant or ostensible transaction in any other form would not preclude the landlord from bringing on record material and circumstances, by adducing evidence or by means of cross-examination, making out a case of sub-letting or parting with possession in tenancy premises by the tenant in favour of a third person. (iv) If tenant is actively associated with the partnership business and retains the control over the tenancy premises with him, may be along with partners, the tenant may not be said to have parted with possession. (v) Initial burden of proving subletting is on landlord but once he is able to establish that a third party is in exclusive possession of the premises and that tenant has no legal possession of the tenanted premises, the onus shifts to tenant to prove the nature of occupation of such third party and that he (tenant) continues to hold legal possession in tenancy premises. (vi) In other words, initial burden lying on landlord would stand discharged by adducing prima facie proof of the fact that a party other than tenant was in exclusive possession of the premises. A presumption of sub-letting may then be raised and would amount to proof unless rebutted. 14. The Hon'ble Supreme Court after analyzing the facts of the said case, discussed the effect of constituting partnership by a tenant and held as follows:- 30. If the purpose of constituting partnership by the tenant is ostensible and a deed of partnership is drawn to conceal the real transaction of subletting in a given case, the court may be required to tear the veil of partnership to find out the real nature of transaction entered into by the tenant and in such circumstances the evidence let in by the landlord cannot be ignored on the ground that there is some variance between pleading and proof. In a case such as the present one, the rule of secundum allegata et probata is not strictly applicable as the tenant cannot be said to have been put to any prejudice. 15. Thus, the Court is entitled to tear the veil of partnership to find out the real nature of transaction. The case of the RW-1 and RW-4 is that after the demise of Manickam Chettiyar and Sundresa Mudaliyar, the respondents 1 and 2, continued the business in the capacity of the legal heirs of the said persons, who were the tenants. The business was not a registered partnership firm. For the first time, the respondents 1 and 2 constituted themselves into a registered partnership firm on 13.08.1975, Exhibit R-7. This constitution of partnership business was without notice to the landlord. This came to light when the first respondent filed RCOP.No.4 of 1980, under Section 8(5) of the Act, wherein the firm was the petitioner, represented by the first respondent, Managing Partner. There is no record placed before the Courts below that the fourth respondent was in fact a partner initially with Manickam Chettiyar and Sundresa Mudaliyar and after their demise, along with respondents 1 and 2. 16. As admitted by RW-1, the registered firm was re-constituted on 01.10.1984, and the respondents 1 and 2 retired from the partnership business for consideration and respondents 3 and 4 became partners and the firm stood re-constituted with the respondents 3 & 4 and their family members as partners. Thus the reconstitution of the partnership is undoubtedly a transaction made to conceal subletting. Therefore, the contention raised by the learned counsel for the respondents that the respondents 3 and 4 have nothing to do with the landlord, deserved to be rejected. The decision of the Hon'ble Division Bench of this Court, Devarajulu Naidu vs. Ethirajavalli Thayaramma, (1949) 2 MLJ 423, relied on by the learned counsel for the respondents, has absolutely no application to the facts of the present case, since the tenancy in the said case was with partners of the firm and after winding up, one partner was allowed to use the business premises and therefore, the Hon'ble Division Bench held that it is not a case of subletting or transfer. The facts of the present case is entirely different in the said judgment is of no assistance to the respondents. At this stage, it would be beneficial to refer certain decisions of this Court, wherein this Court analyzed various aspects on the ground of subletting, S.Jainmul Jain & another vs. A.R.Nagaraja & another, 1997-2-L.W 386; V.T.Asokan & another vs. Bowjiya Begam, 1998-3-L.W. 661 and A.R.V. Venkatasamy Naicker and sons vs. V.S.Krishnamoorthy, 2005 (4) CTC 583. 17. For all the above reasons, it has to be held that the Courts below misread the evidence and over looked the law declared by the Courts on the ground of subletting and what are the tests to decide a case of subletting and therefore, this Court is convinced that the findings rendered by the Courts below being perverse and legally unsustainable, deserves to be interfered with. 18. In the result, the Civil Revision petition is allowed and the impugned orders are set aside and RCOP.No.37 of 1986, is allowed and eviction is ordered on the ground of subletting. The respondents shall vacate and hand over vacant possession of the petition premises to the petitioners/landlords within a period of two months from the date of receipt of a copy of this order. No costs. 07.02.2012 Index :Yes/No Internet:Yes/No pbn T.S.SIVAGNANAM, J. pbn To 1)The Rent Control Appellate Tribunal (Sub Court), Nagapattinam. 2)The Rent Controller (District Munsif), Tiruvarur. Pre-Delivery Order in CRP (NPD) No.1317 of 1995 07.02.2012

Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short, `the U.P Act') for eviction of the respondent/tenant on the ground =the hardship appellants would suffer by not occupying their own premises would be far grater than the hardship the respondent would suffer by having to move out to another place. We are mindful of the fact that whenever the tenant is asked to move out of the premises some hardship is inherent. We have noted that the respondent is in occupation of the premises for a long time. But in our opinion, in the facts of this case that circumstance cannot be the sole determinative factor. That hardship can be mitigated by granting him longer period to move out of the premises in his occupation so that in the meantime he can make alternative arrangement. 17. In the view that we have taken, the appeal succeeds. The impugned order is set aside to the extent it permits the respondent to retain possession of three rooms out of four rooms in his occupation. The respondent is directed to

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4495 OF 2006 MOHD. AYUB & ANR. ... APPELLANTS Versus MUKESH CHAND ... RESPONDENT JUDGMENT (SMT.) RANJANA PRAKASH DESAI, J. 1. This appeal, by grant of special leave, is directed against the judgment and order dated 12.9.2005 passed by the High Court of Uttaranchal at Nainital partly allowing the Writ Petition No. 296 of 2004 filed by the appellants. 2. The appellants/landlords filed an application under Section 21 of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short, `the U.P Act') for eviction of the respondent/tenant on the ground 2 that they bona fide required the premises occupied by the respondent to start business for their sons. 3. According to the appellants when the house in question was purchased by them the respondent was occupying two shops facing the road and two rooms situate at the rear of the said shops as a tenant of the previous landlord at the rent of Rs.35/- per month. These rooms are situated on the ground floor of the said building. The respondent continued to occupy the said rooms as tenant at the same rent. It is the case of the appellants that the first appellant is carrying on business in three small stalls situated in a shop of the Cantonment Council, the rent of which keeps increasing. The three sons of the appellants aged 23, 28 and 19 years are unemployed. Two sons want to start general merchant business in one shop and the third son wants to start wholesale egg business in the other shop. The appellants' family consists of 13 members. Their one son is married and has three children and the two other sons are of a marriageable age. The married son wants to live in the 3 room behind the shop. Presently, the appellants' family is living in three rooms and a verandah with great difficulty. On these grounds the appellants filed the application for release of the rooms in occupation of the respondent. 4. In response, the respondent inter alia contended that he is conducting photography business from the said shops for many years; that he is enjoying goodwill in the area; that he will find it difficult to get premises in the same area; that appellants are financially well off as compared to him; that they own other properties and that greater hardship would be caused to the respondent if the decree of eviction is passed than that would be caused to the appellants if it is not passed. 5. The Prescribed Authority dismissed the application holding inter alia that the appellants are financially sound and other properties were available to them whereas except the suit shops the respondent does not have any place for residence and business and hence, if he is evicted from the 4 shops in his occupation, he will experience more difficulty. The appeal carried from the said judgment was dismissed by the District Court holding inter alia that financial position of the appellants is far better than that of the respondent. They could have purchased a vacant bungalow and started business for their sons. Learned District Judge held that the appellants have purchased the building to make profit and then filed the application for eviction. According to learned District Judge, the respondent was doing business from the said shops for many years and it would be difficult for him to find a place for business. Hardship caused to the respondent would be more. 6. While disposing of the petition filed by the appellants the High Court rightly held that the landlord cannot be dictated by the tenant what business his sons should do and the observations made by the courts below to that effect and the findings reached by the courts below on bona fide requirement of the landlord are perverse. However, without going into the aspect of comparative hardship, the High 5 Court directed that only one room out of the four rooms should be handed over to the appellants by the respondent as from the affidavit it appears that the respondent was using it as a passage. Being aggrieved by the said judgment, the appellants have approached this Court. 7. Shri Vijay Hansaria, learned senior counsel, appearing for the appellants submitted that having come to the conclusion that the need of the appellants was genuine, the High Court erred in directing the respondent to only handover one room to the appellants. The High Court has wrongly granted only partial relief to the appellants without going into the aspect of comparative hardship. In support of his submissions, learned counsel relied on Raghunath G. Panhale (Dead) by Lrs. v. C haganlal Sundarji & Co. 1 , Bhimanagouda Basanagouda Patil v. Mohd. G udusaheb 2 , Ganga Devi v. District Judge, Nainital & Or s. 3 1 (1999) 8 SCC 1 2 (2003) 3 SCC 101 3 (2008) 7 SCC 770 6 8. Shri Achal Chabbra, learned counsel for the respondent on the other hand submitted that the High Court has balanced the interest of both sides and hence no interference is necessary with the impugned judgment. 9. There is no challenge to the High Court's finding that the appellants' requirement is bona fide. The respondent has not assailed the High Court's order. We concur with the High Court on this point. However, the High Court erroneously held that the view expressed by the courts below that greater comparative hardship would be caused to the respondent if decree of eviction is passed is correct so far as two rooms occupied by him for residence and one room in which he is running a shop is concerned. The High Court observed that no hardship will be caused to the respondent if one room is directed to be handed over to the appellants because it was used as a passage by the respondent. Surprisingly, the High Court has not given any reasons why only partial relief was being granted to the appellants. In fact, it has not discussed the issue of 7 comparative hardship at all. Since this issue is of utmost relevance and the application of the appellants is of the year 1998, we proceed to deal with it. 10. Section 21 (1) (a) of the U.P. Act provides for eviction of a tenant on the ground of bona fide requirement of the landlord. The fourth proviso thereof states that the Prescribed Authority shall take into account the likely hardship to the tenant from the grant of the application as against the likely hardship to the landlord from the refusal of the application and for that purpose shall have regard to such factors as may be prescribed. 11. Rule 16 (2) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 ( for short, `the said Rules') states which facts the Prescribed Authority has to consider while dealing with an application for release under clause (a) of sub-section (1) of Section 21 of the U.P. Act. Rule 16 (2) refers to building let out for purpose of any business and the facts which have to be taken into 8 consideration are: (a) length of tenancy of the tenant; (b) availability of suitable accommodation for tenant; (c) whether the landlords existing business is more flourishing than that which is proposed to be set up by him in the leased premises and (d) need of self-employment of a son or married or unmarried or widowed or divorced or judicially separated daughter or daughter or a male lineal descendant of the landlord who has completed his or her technical education and who is not employed in government service. 12. In Ganga Devi this Court held that comparative hardship indisputably is a relevant factor for determining the question as to whether the requirement of the landlord is bona fide or not within the meaning of the provisions of the U.P. Act and the said Rules and it is essentially a question of fact. This Court observed that Rule 16 provides for some factors which are required to be taken into consideration. This Court clarified that the court would not determine the question only on the basis of sympathy or sentiment. This Court referred to its judgment in Bhagwan Das v. Jiley 9 Ku mar 4 where it is observed that the outweighing circumstance in favour of the landlord was that two of her sons after completing their education were unemployed and wanted to carry on business for self-employment. This Court further observed that there was an additional circumstance that the tenant had not brought on record any material to indicate that at any time during the pendency of this long drawn out litigation he had made any attempt to seek an alternative accommodation and was unable to get it. This Court also referred to its judgment in Rishi Kumar Govil v. M aqsoodan 5 where it has particularly taken note of the fact that the landlady had no other shop where she can establish her son who is married and unemployed and there was nothing on record to indicate that the business of the father was huge or flourishing. This Court clarified that the length of the period of tenancy as provided under clause (a) of sub-rule (2) of Rule 16 of the said Rules is only one of the factors to be taken into account in context with other 4 (1991) supp. (2) SCC 300 5 (2007) 4 SCC 465 10 facts and circumstances of the case and cannot be a sole criterion or deciding factor to order or not the eviction. This Court held that in the circumstances of the case the balance tilted in favour of the unemployed son of the landlady whose need is certainly bona fide. After quoting the above judgment in Ganga Devi this Court gave six months time to the landlady to handover the premises to the landlord in the interest of justice. 13. In our opinion, Ganga Devi applies on all fours to the present case. The first appellant carries on his business from three small stalls of a shop of the Cantonment Council whose rent keeps on increasing. There is nothing on record to suggest that the appellants' present business is more flourishing than the business which they propose to start in the leased premises. All the three sons of the appellants are educated but unemployed. They want to start business in the premises in occupation of the respondent. One of them is married and has three children. The other three are of a marriageable age. In all there are thirteen members in the 11 appellants' family and they are living in three rooms and one verandah with great difficulty. As against that the respondent's family consists of four persons and there are four rooms in his possession. It is observed by the courts below that the appellants own other premises. However, details of those premises are not on record. The High Court has rightly noted that this bald assertion is based on conjectures. It is well settled the landlord's requirement need not be a dire necessity. The court cannot direct the landlord to do a particular business or imagine that he could profitably do a particular business rather than the business he proposes to start. It was wrong on the part of the District Court to hold that the appellants' case that their sons want to start the general merchant business is a pretence because they are dealing in eggs and it is not uncommon for a Muslim family to do the business of non- vegetarian food. It is for the landlord to decide which business he wants to do. The Court cannot advise him. Similarly, length of tenancy of the respondent in the 12 circumstances of the case ought not to have weighed with the courts below. 14. We also find that the courts below were swayed by the fact that the financial position of the appellants was better than the respondent. The District Court has erroneously gone on to observe that the appellants can buy another building and start business. It has also observed that the appellants had purchased the building to make profit. In this connection we may usefully refer to the judgment of this Court in Bhimanagouda Basanagouda Patil where the District Judge decided the issue of comparative hardship in favour of the tenant solely on the basis of affluence of the parties. This Court observed that if this is the correct approach then an affluent landlord can never get possession of his premises even if he proves all his bona fide requirements. This Court further observed that the fact that a person has the capacity to purchase the property cannot be the sole ground against him while deciding the question of comparative hardship. If the purchase is pursuant to a 13 genuine need of the landlord the said purchase has to be given due weightage unless, of course, the purchase is actuated by collateral consideration. This Court rejected the High Court's finding that the landlord had secured the premises apparently in a game of speculation. Somewhat similar observations are made in this case by the District Court which in our opinion are totally unsubstantiated. 15. It is also important to note that there is nothing on record to show that during the pendency of this litigation the respondent made any genuine efforts to find out any alternative accommodation. We specifically asked learned counsel for the respondent to point out any evidence to establish that the respondent made any such genuine efforts. He was unable to answer this query satisfactorily. 16. In the ultimate analysis, we are of the view that the perverse findings of the courts below on the aspect of comparative hardship must be set aside. The High Court has rightly found the need of the appellants to be bona fide. 14 It has however, fallen into an error in directing the respondent to handover only one room to the appellants. In our opinion, the hardship appellants would suffer by not occupying their own premises would be far grater than the hardship the respondent would suffer by having to move out to another place. We are mindful of the fact that whenever the tenant is asked to move out of the premises some hardship is inherent. We have noted that the respondent is in occupation of the premises for a long time. But in our opinion, in the facts of this case that circumstance cannot be the sole determinative factor. That hardship can be mitigated by granting him longer period to move out of the premises in his occupation so that in the meantime he can make alternative arrangement. 17. In the view that we have taken, the appeal succeeds. The impugned order is set aside to the extent it permits the respondent to retain possession of three rooms out of four rooms in his occupation. The respondent is directed to 15 handover possession of all the rooms in his occupation to the appellants. He is granted six months time to vacate the premises in question on the condition that he files usual undertaking before the Registry of this Court within eight weeks from today. 18. The appeal is disposed of in the aforesaid terms. .....................................................J. (AFTAB ALAM) .....................................................J. (RANJANA PRAKASH DESAI) NEW DELHI, JANUARY 05, 2012