LAW FOR ALL

Monday, February 20, 2017

“Revocation of the patent is sought on the grounds of lack of novelty, obviousness and insufficiency. The patentees have not filed a Counterstatement, and by their Agenmts’ letter dated 5 March 1981 indicated that they do not intend to contest the application and furthermore propose to allow the patent to lapse by non-payment of the renewal fee due on 27 July, 1981. Subsequently, the patentees have formally offered to surrender their patent, and no opposition to the surrender has been entered. Under the provisions of Section 29 of the Patents Act, 1977, the acceptance by the Comproller of an offer to surrender a patent does not result in the automatic termination of any revocation proceedings that may be in being, although it is clear that the rights existing prior to the date of acceptance of the offer are considerably impaired by the surrender. In the present case, it is manifest that the revocation is to be treated as undefended and accordingly, in dealing with the issues raised, I must assume that the truth of every statement made by the applicants in their statement of cases has been conceded, unless it is contradicted by facts elsewhere in the documents filed. Having reviewed the matter, I am satisfied that the applicants’ case at least in respect of prior publication and obviousness is of undoubted substance, and since in the circumstances the question of amendment does not arise, I therefore direct that the patent be revoked. It follows that no further action is necessary in relation to the offer to surrender the patent.” -Consequently the Controller of Patents, Patent Office, Chennai is directed to remove the impugned patent standing in the name of the first respondent “ICOS Corporation” under patent No.224314 within a period of six weeks from the date of receipt of the order copy of this Bench. Consequently the surrender proceedings pending before the Controller of Patents becomes infructuous

INTELLECTUAL PROPERTY APPELLATE BOARD
Guna Complex, Annexe-I, 2nd Floor, 443, Anna Salai, Teynampet, Chennai – 600 018 ORA/31/2015/PT/CH
FRIDAY THIS THE 11TH DAY OF MARCH, 2016
Hon’ble Shri Justice K.N. Basha … Chairman
Hon'ble Shri D.P.S. Parmar …Technical Member (Patents)

M/S MYLAN LABORATORIES LTD., REPRESENTED BY ITS AUTHORISED SIGNATORY MR. SANDEEP K. RATHOD, PLOT NO.34-A, ANRICH INDUSTRIAL ESTATE, BOLLARAM (V), JINNARAM (M), MEDAK DISTRICT, HYDERABAD … Applicant (Represented by –.Dr. Feroz Ali )
Vs.
1. *ICOS CORPORATION, OF ELI LILLY AND COMPANY, LILLY CORPORATE CENTER, INDIANAPOLIS, IN 46285, USA, REPRESENTED BY ITS AGENT M/S DE PENNING & DE PENNING, 120, VELACHERY MAIN ROAD, CHENNAI – 600 032. (Cause title amended as per order dated 11/03/2016)
2. THE CONTROLLER OF PATENTS, INTELLECTUAL PROPERTY OFFICE BUILDING, GST ROAD, GUINDY, CHENNAI- 600032. …Respondents (Represented by – Mr. A. Vijay Anand )

ORDER (No.29 of 2016) Hon’ble Shri Justice K.N. Basha, Chairman Dr. Feroz Ali, learned counsel for the applicant and Mr. A. Vijay Anand, learned counsel for the first respondent are present today. 2. The present application is filed for seeking the relief of revoking the impugned patent No.224314 and remove the same from the register of Patents and award costs to the applicant.
3. Dr. Feroz Ali, learned counsel for the applicant would submit that the learned counsel for the first respondent herein has already sent a communication
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dated 09/02/2016 to the IPAB Registry informing that the first respondent is the patentee of the impugned patent No.224314 and they no longer has business interest in maintaining the patent due to the presence of many generic products on the market in India and they do not intend to maintain the impugned patent any longer and offered to surrender the patent before the Indian Patent Office under section 63 of the Indian Patents Act. The learned counsel would also submit that they have also enclosed a communication dated 09/02/2016 addressed to the Controller of Patents, Patent Office, Chennai. The learned counsel for the applicant would contend that the present ORA has been filed for revocation of the impugned patent by raising the grounds namely
(1) That the invention as claimed in the impugned patent is not an invention within the meaning of the Patents Act [section 64(1) (d)];
(2) That the invention as claimed in the impugned patent is obvious or does not involve any inventive step [section 64(1)(f)];
(3) That the complete specification does not sufficiently and fairly describe the invention and the method by which it is to be performed, that is to say, that the description of the method or the instructions for the working of the invention as contained in the complete specification are not by themselves sufficient to enable a person in India possessing average skill in, and average knowledge of, the art to which the invention relates, to work the invention [section 64(1)(h)];
(4) That the scope of any claim of the complete specification is not sufficiently and clearly defined or that any claim of complete specification is not fairly based on the matter disclosed in the specification [section 64(1)(i)];
(5) That the subject of claims in the impugned patent is not patentable under the Act [section 64(1) (k)];
(6) That the First Respondent failed to disclose to the Controller the information required by section 8 or has furnished information which in any material particular was false to its knowledge [section 64(1)(m)].
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4. Dr. Feroz Ali, learned counsel for the applicant would further submit that the first respondent in their communication dated 09/02/2016 sent to the Registry of IPAB has categorically stated that they no longer has business interest in maintaining the patent due to the presence of many generic products on the market in India and further stated that they do not intend to maintain the impugned patent any longer and they have offered to surrender the impugned patent before the Indian Patent Office under section 63 of the Indian Patents Act, 1970 and they have also produced the letter addressed to the Patents Office to that effect. It is contended by the learned counsel for the applicant that the first respondent has not filed any counter statement to the present application disputing the statements and grounds raised in the application and therefore instead of allowing the first respondent to proceed with their surrender petition before the Patent office this Bench may allow the application and revoke the impugned patent. It is further contended that unless and until the Controller accept the offer of surrender by filing the procedure contemplated under section 63 of the Patents Act, 1970 the impugned patent would remain in existence and continue to be in the register. The learned counsel would also contend that in the absence of any resistance or denial of the grounds raised in the application and evidence enclosed by the applicant the impugned patent become invalid and as such the impugned patent may be ordered to be revoked forthwith. The learned counsel in support of his contention would also place reliance on the decision reported in (1) [1999] F.S.R. 284 in the matter of Connaught Laboratories Inc.’s Patent (U.K. Patents Court’s decision) and (2) decision of U.K. Patent Office in the matter of Patent No.1527418 in the name of Wellworthy Limited and in the matter of an application for revocation thereof by Karl Schmidt GmbH.
5. Mr. Vijay Anand, learned counsel for the first respondent would submit that the present ORA is filed impleading the first respondent M/s Lilly ICOS LLC. but the first respondent has already assigned their rights by executing the assignment deed in favour of “ICOS Corporation” and they also sought for the
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change of the applicant’s name in the Patent Office as early as on 27/06/2011 and the same has been allowed changing the name as “ICOS Corporation”. Therefore, it is submitted in the present application also that the name of the first respondent may be changed as above. The learned counsel for the applicant has no objection for the above said prayer.
6. Accordingly, the Registry is directed to amend the cause title of this ORA/31/2015/PT/CH deleting the earlier name of the first respondent and incorporating the present name of the first respondent as “ICOS Corporation”.
7. Mr. Vijay Anand, learned counsel for the respondent would also submit that the first respondent has sent a communication dated 09/02/2016 to the IPAB Registry and to the Controller of Patents stating that they no longer has business interest in maintaining the patent and further offered to surrender the impugned patent under section 63 of the Indian Patents Act, 1970 before the Controller of Patents. The learned counsel for the first respondent has not made any submissions in respect of the contentions put forward by Dr. Feroz Ali, learned counsel for the applicant seeking for revocation of the impugned patent rather than allowing the first respondent to proceed with surrender proceedings before the Controller of Patents.
8. We have considered the submissions of both sides and also perused the communication dated 09/2/2016 sent to the IPAB Registry and another communication sent to the Controller of Patents, Patent Office, Chennai on the same date ie. on 09/02/2016.
9. The fact remains that the applicant has come forward with this application seeking for the revocation of impugned patent No.224314 standing as on date in the name of “ICOS Corporation.” Now the first respondent has come forward with the categorical statement that they are no longer has business interest in maintaining the patent due to the presence of many generic products on the
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market in India. It is better to incorporate their communication dated 09/02/2016 addressed to the Registry of IPAB as here under:- “With reference to the subject Revocation, we state that we represent respondent No.1, the patentee of the patent under dispute ie. Patent No.224314. We bring to the notice of this Hon’ble Board that the respondent No.1 no longer has business interest in maintaining the patent due to the presence of many generic products on the market in India. Consequently, the respondent No.1 do not intend to maintain this patent any longer and has offered to surrender the patent before the Indian Patent Office under Section 63 of the Indian Patents Act, 1970. A copy of said letter to Patent Office is enclosed herewith for your ease of reference. Under this circumstance, we see that it would be superfluous on the Board to expend its valuable time and effort on the present proceeding and we request the Board to pass suitable orders effecting the closure of revocation proceedings.”
10. Pursuant to the said communication they have also sent a communication dated 09/02/2016 to the Patent Office, Chennai under reference 195-2002/NS/ss. It is also relevant to incorporate the said communication sent to the Controller of Patents, Patent Office, Chennai via e-filing as here under :- “With reference to the above mentioned patent, we would like to bring to your notice that the applicant no longer has business interest in maintaining this patent due to the presence of many generic products on the markets in India. Accordingly, applicant offers to surrender this patent No.224314 under the provision of Section 63 of the Patents Act. The prescribed fee of Rs. 5,000/- is paid through e-filing. We hereby request you to accept the applicant’s offer to surrender the patent and pass suitable order effecting the closure of this patent.”
11. The reading of the first communication dated 09/02/2016 addressed to the IPAB Registry makes it crystal clear that they have no more business interest in the impugned patent No.224314 and further they have expressed in clear terms that they do not intend to maintain the impugned patent any longer.
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12. It is also pertinent to note that the first respondent has not chosen to file the counterstatement disputing and denying the statements and grounds raised by the applicant in this ORA. It is seen that the applicant has raised specific grounds namely lack of invention, the impugned patent is obvious and does not involved in inventing the steps, the complete specification does not sufficiently described the invention, the impugned patent is not patentable under the Act and the first respondent failed to disclose to the Controller the information required by Section 8. We are constrained to state that all these grounds have not been disputed or contradicted by the first respondent by filing the counter statement. Therefore, we have no hesitation to hold that in the absence of filing any counter statement by the first respondent the applicant has established their case and as a result the impugned patent would become invalid.
13. We have incorporated the two communications dated 09/02/2016 sent to the Registry of IPAB and to the Patent Office by the first respondent herein. In the said two communications the first respondent has not only categorically stated that they have no business interest in maintaining the impugned patent and they have offered to surrender the impugned patent before the Indian Patent Office under section 63 of the Indian Patents Act 1970.
14. Under Section 63 of the Patents Act 1970 the procedure for surrender of patents is highlighted and section 63 reads here under :-
“63. Surrender of Patents –
(1) A patentee may, at any time by giving notice in the prescribed manner to the Controller, offer to surrender his patent.
(2) Where such an offer is made, the Controller shall (publish) the offer in the prescribed manner, and also notify every person other than the patentee whose name appears in the register as having an interest in the patent.
(3) Any person interested may, within the prescribed period after (such publication), give notice to the Controller of opposition to the
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surrender, and where any such notice is given the Controller shall notify the patentee.
(4) If the Controller is satisfied after hearing the patentee and any opponent, if desirous of being heard, that the patent may properly be surrendered, he may accept the offer and by order, revoke the patent.”
15. The readings of the above said provisions makes it abundantly clear that in the event of offer of surrender of a patent by a patentee, the Controller has to follow the procedure contemplated under section 63 of the Act. Therefore, as long as the said surrender proceedings are pending and unless and until the Controller accept the offer of surrender the impugned patent to be in existence and continued to be in the register. The instant application filed for revocation of the impugned patent has been filed as per provision under section 64 of the Indian Patents Act. As we have already pointed out the grounds raised by the applicant herein has not been disputed by the first respondent and more particularly the first respondent having clearly and categorically stated in their communication dated 09/02/2016 to the IPAB Registry and the Controller of Patents that they no longer has interest in the impugned patent and they are surrendering the impugned patent to the Patent Office and as such instead of allowing the Controller of Patents to follow the procedure contemplated under the section 63, as there is no legal impediment to revoke the impugned patent by this Bench and the impugned patent is liable to be revoked.
16. Dr. Feroz Ali, learned counsel for the applicant has also rightly placed reliance on two decisions of UK Patents Court and UK Patents Office reported in [1999] F.S.R.284.
The U.K. Patents Court held in similar case as here under :-
“(1) Where a patentee offered to surrender his patent in the course of revocation proceedings in court, section 29 of the Patents Act 1977 provided that the patent remained in existence until the Comptroller decided to accept that offer. Until then it remained open to the court to order its revocation.
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(2) On the basis of the pleadings and evidence, and in the absence of any resistance or argument in court from the respondent, the petition was well founded and the patent was invalid on the grounds pleaded.
(3) The patent would be ordered to be revoked forthwith, and the respondent ordered to discontinue or withdraw those parts of any foreign proceedings in which it sought to enforce the U.K. designation of the patent.”
In the second decision of the U.K. Patent office in the matter Patent No.1527418 in the name of Wellworthy Limited and in the matter of an application for revocation thereof by Karl Schmidt GmbH held here under :-
“Revocation of the patent is sought on the grounds of lack of novelty, obviousness and insufficiency. The patentees have not filed a Counterstatement, and by their Agenmts’ letter dated 5 March 1981 indicated that they do not intend to contest the application and furthermore propose to allow the patent to lapse by non-payment of the renewal fee due on 27 July, 1981. Subsequently, the patentees have formally offered to surrender their patent, and no opposition to the surrender has been entered. Under the provisions of Section 29 of the Patents Act, 1977, the acceptance by the Comproller of an offer to surrender a patent does not result in the automatic termination of any revocation proceedings that may be in being, although it is clear that the rights existing prior to the date of acceptance of the offer are considerably impaired by the surrender. In the present case, it is manifest that the revocation is to be treated as undefended and accordingly, in dealing with the issues raised, I must assume that the truth of every statement made by the applicants in their statement of cases has been conceded, unless it is contradicted by facts elsewhere in the documents filed. Having reviewed the matter, I am satisfied that the applicants’ case at least in respect of prior publication and obviousness is of undoubted substance, and since in the circumstances the question of amendment does not arise, I therefore direct that the patent be revoked. It follows
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that no further action is necessary in relation to the offer to surrender the patent.”
17. The principles laid down in the above said two decisions are squarely applicable to the issues involved in the instant matter in view of our earlier findings.
18. In view of the aforesaid reasons the present ORA is allowed. Consequently the Controller of Patents, Patent Office, Chennai is directed to remove the impugned patent standing in the name of the first respondent “ICOS Corporation” under patent No.224314 within a period of six weeks from the date of receipt of the order copy of this Bench. Consequently the surrender proceedings pending before the Controller of Patents becomes infructuous. No costs. (D.P.S. PARMAR) (JUSTICE K.N. BASHA) TECHNICAL MEMBER (PATENTS) CHAIRMAN Reportable :Yes/No

Right of Private Defence = there is substance in the submissions made by the learned Senior Counsel for the Appellants regarding the right to private defence for the following reasons: It is recorded in the judgment of the High Court that the Public Prosecutor argued that the deceased was beaten outside the house which was corroborated by the site plan. The Investigating Officer stated in his evidence that there was a cross case lodged by Lal Chand in which a charge-sheet under Section 323, 324, 326 and 34 IPC was filed against Bahadur Mal and Vijay Singh @ Vijendra. The injury reports of the accused persons Exh.D-18, D-19 and D-21 were filed. Suggestions were made to prosecution witnesses Gita, Ram Chandra, Patasi and Bihari about the complainant party being aggressors. 7. In view of the above facts and circumstances, we hold that the conviction of the Appellants under Section 302 is unsustainable. However, we are convinced that the accused are guilty of causing the death of Virendra and they are liable for conviction for an offence punishable under Section 304 Part-I IPC. As we are informed that the Appellants have served a sentence of nearly 11 ½ years, we sentence them to the period already undergone. They may be set free, if they are not required in any other case

Non-Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No.483 of 2013

JAGMAL & ORS.
.... Appellant(s)
Versus
STATE OF RAJASTHAN
….Respondent(s)

J U D G M E N T

L. NAGESWARA RAO, J.
By a judgment dated 06.01.2006 of the Additional Sessions Judge, Neem-
Ka-Thana, District Sikar, the Appellants were convicted for an offence
under Section 302/149 of the Indian Penal Code, 1860 (hereinafter referred
to as the ‘IPC’) and sentenced to undergo life imprisonment. They were
also convicted under Section 452 IPC and sentenced to undergo five years’
rigorous imprisonment. They were further convicted for an offence under
Section 148 IPC and were sentenced to undergo two years’ rigorous
imprisonment. The Appeal filed by them was dismissed by the High Court of
Rajasthan, aggrieved by which the Appellants have filed this Appeal.
2. Initially 12 persons were named in the First Information Report
(FIR). After investigation 7 persons including the accused were charge-
sheeted and tried. The Trial Court acquitted Gulabi Devi and Meva Devi.
Lal Chand died during the pendency of trial. Along with the appeal filed
by the Appellants, the revision filed against the acquittal of Gulabi Devi
and Meva Devi were also taken up and dismissed. We are informed that one
of the Appellants, Kana Ram died during the pendency of this Appeal. At
present, we are concerned with the conviction and sentence of Appellants
Jagmal, Arvind and Om Prakash.
3. Bihari Lal lodged a report at Police Station Patan, District Sikar,
that his son Virendra and Lal Chand (accused who died during the pendency
of trial) had an altercation during the course of the day on 19.02.2004.
At about 05:30 pm, the accused armed with lathies, iron rods, axe forcibly
entered into the house where Virendra, Vijendra, Patasi and Gita Devi were
sitting and attacked them. The injured persons were taken to hospital at
Neem-Ka-Thana. As the condition of Virendra and Vijendra was serious they
were referred to SMS Hospital, Jaipur. Virendra succumbed on the same
night. The post mortem was conducted on 20.02.2004. There were 11
injuries on the body of the deceased. The injured eye-witness PW-7 Gita
Devi and PW-9 Smt. Patasi gave a graphic account of the assault by the
accused persons and the injuries suffered by Virendra.
4. There is no doubt about the incident on 19.02.2004 as the accused
claimed a right of private defence. There is also no doubt that Virendra
died due to the attack by the accused. The ocular testimony of the eye-
witnesses is corroborated by the medical evidence. We do not see any
reason to take a view different from that of the Courts below that the
Appellants had caused the death of Virendra.
5. The only point that remains to be considered is whether the accused
have acted in their right of private defence. The right to private defence
was taken by the Appellants before the Court below, in vain. The
submission of Mr. Sushil Kumar Jain, learned Senior Counsel for the
Appellants is that there was a free fight and Lal Chand was attacked by the
complainant party and he snatched a stick and hit the deceased in self
defence. The learned Senior Counsel relied upon the FIR lodged by the
accused and the injury reports of the Appellants Jagmal (Exh.D-19), Arvind
(Exh.D-20) and injury report of Lal Chand (Exh.D-21). The learned Senior
Counsel also relied upon the suggestions put to the prosecution witnesses
Gita Devi, Ram Chandra, Patasi Devi and Bihari Lal about the attack on Lal
Chand. He submitted that the High Court erred in holding that there was
no suggestion made to any of the prosecution witness regarding the attack
on Lal Chand. He also contended that the High Court went wrong in
rejecting the plea of right of private defence of the accused by relying on
the statement of Lal Chand under Section 313 Cr. P.C. in which there was no
mention of self defence.
6. We have considered the material on record carefully and we are of the
opinion that there is substance in the submissions made by the learned
Senior Counsel for the Appellants regarding the right to private defence
for the following reasons:
It is recorded in the judgment of the High Court that the Public Prosecutor
argued that the deceased was beaten outside the house which was
corroborated by the site plan.
The Investigating Officer stated in his evidence that there was a cross
case lodged by Lal Chand in which a charge-sheet under Section 323, 324,
326 and 34 IPC was filed against Bahadur Mal and Vijay Singh @ Vijendra.
The injury reports of the accused persons Exh.D-18, D-19 and D-21 were
filed.
Suggestions were made to prosecution witnesses Gita, Ram Chandra, Patasi
and Bihari about the complainant party being aggressors.

7. In view of the above facts and circumstances, we hold that the
conviction of the Appellants under Section 302 is unsustainable. However,
we are convinced that the accused are guilty of causing the death of
Virendra and they are liable for conviction for an offence punishable under
Section 304 Part-I IPC. As we are informed that the Appellants have served
a sentence of nearly 11 ½ years, we sentence them to the period already
undergone. They may be set free, if they are not required in any other
case. With the above modification in the conviction and sentence of the
Appellants, the Appeal is disposed of.

........................................J
[S. A. BOBDE]

..……................................J
[L. NAGESWARA RAO]

New Delhi,
February 20, 2017

Custody of Child = whether she could shift to India, even temporarily for a year or so, as in that eventuality, the Court can consider giving custody of Vaishali to her for that period. However, she expressed her inability to do so. She wants custody of Vaishali on her own terms. She wants Vaishali to come to U.K. and live with her. Vaishali does not want to go to U.K. at all. This Court cannot take the risk of sending Vaishali to a foreign country, against the wishes of a mature girl like Vaishali, as it may prove to be a turbulent and tormenting experience for her. That would not be in her interest. We also had interaction with Vaishali in the Chambers earlier. On the date of hearing also, Vaishali was present in the Court and in front of her parents, she unequivocally expressed that she was happy with her father and wanted to continue in his company and did not want to go with her mother, much less to U.K. From the interaction, it is clearly discernible that she is a mature girl who is in a position to weigh the pros and cons of two alternatives and to decide as to which course of action is more suited to her. She has developed her personality and formed her opinion after considering all the attendant circumstances. Her intellectual characteristics are adequately developed. She is able to solve problems, think about her future and understands the long term effects of the decision which she has taken. We also find that she has been brought up in a conducive atmosphere. It, thus, becomes apparent that in the instant case, we are dealing with the custody of a child who is 15 years of age and has achieved sufficient level of maturity. Further, in spite of giving ample chances to the respondent by giving temporary custody of Vaishali to her, respondent has not been able to win over the confidence of Vaishali. We, therefore, feel that her welfare lies in the continued company of her father which appears to be in her best interest. The High Court in the impugned judgment had stated that since Vaishali was a minor girl, she needed company of her mother more to understand girly things. The High Court mentioned about the bond between girl child and mother in abstract and from there only the High Court came to the conclusion that it would be better to give the custody to the mother. The High Court did not go into the specific situation and circumstances of this case and did not make any objective assessment about the welfare of Vaishali. Many circumstances which we have narrated above were not taken note of. On the facts of the present case, we are convinced that custody of the child needs to be with father. She is already 15 years of age and within 3 years, she would be major and all this custody battle between her parents would come to an end. She would have complete freedom to decide the course of action she would like to adopt in her life. We, thus, allow this appeal and set aside the judgment of the High Court.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 717 OF 2013

|JITENDER ARORA & ORS. |.....APPELLANT(S) |
|VERSUS | |
|SUKRITI ARORA & ORS. |.....RESPONDENT(S) |

J U D G M E N T

A.K. SIKRI, J.
Marriage between appellant No. 1 (hereinafter referred to
as the 'appellant') and respondent No. 1 (hereinafter referred to as the
'respondent') was solemnized sometime in the year 1999, which was got
registered with the Registrar of Marriages, Faridabad on 14.12.1999. The
parties lived thereafter till March 2000 in Faridabad. However, carrying
this notion that great future lies for them out of India, the couple
shifted to U.K. on 23.03.2000. Ms. Vaishali Arora was born out of this
wedlock on 14.01.2002. Career-wise or financially, whether the couple was
better off in U.K., is not known. However, the soil of U.K. certainly did
not prove conducive to their matrimonial relationship which, with the
passage of time, turned bad to worst and from sweet to savoury to bitter.
So much so, legal battles started between them. Eschewing the details in
this behalf which are not needed and can be avoided for the sake of
brevity, suffice is to mention that respondent has taken decree of divorce
from the Court in U.K. Likewise, appellant who had shifted to India along
with Vaishali in 2010, filed the petition for divorce and has obtained
decree of divorce against the respondent. Both the divorce decrees are ex-
parte against each other. Fact remains, which is to be emphasised, that
the appellant and respondent have put an end to their matrimonial alliance
and the aforesaid move on their part clearly depicts that both of them
wanted divorce from each other. That is the reason that the aforesaid ex-
parte divorce decrees are not questioned by any of them.

As it happens in such cases, an acrimonious and charged up battle between
the appellant and the respondent has got concentrated upon the custody of
Vaishali Arora. Though the couple had moved to U.K. on 23.03.2000,
Vaishali was born on 14.01.2002 in Holy Family Hospital, Delhi. The
respondent had come to India when she was pregnant and shortly after her
birth, she went back along with the appellant and the new born child.
Vaishali came to India in July, 2002 to stay with her paternal grandparents
in Faridabad and went back to U.K. in January, 2003. Matrimonial discord
started erupting between the parties thereafter. Since both of them were
having their permanent jobs, the services of Katie Bradbury, a Child Minder
were obtained by them when Vaishali was merely 13 months old. In July,
2004, both husband and wife and their child were granted permanent resident
status of U.K. Thereafter, the parties had been coming to India off and on
quite regularly. Vaishali was admitted in a school in Camberley, U.K. In
July, 2007, Vaishali came to India and joined Manav Rachna International
School where she studied upto March, 2008. Thereafter, she again went back
to U.K. where she was admitted in a school. On 07.02.2007, Pushti, second
daughter, was born to the parties. Thereafter, the matrimonial
relationship between the appellant and the respondent became more bitter
and abusive. Respondent alleged the acts of domestic violence perpetrated
upon her by the appellant. Surrey Social Services Department investigated
into the issues of domestic violence. During this period, the impact of
adverse relations between the spouses upon their child Vaishali was also
studied from psychological point of view by the officer of the said
Department and reports given from time to time.

In June, 2007, Vaishali was issued Indian Passport by Indian High
Commission in London. On 04.08.2007, the appellant came to India. As
pointed out above, Vaishali had already come to India and was admitted in a
school in July, 2007. The appellant and Vaishali remained in India till
April, 2008. Even the respondent decided to move back to India with her
parents. However, on 13.04.2008, the appellant went back to U.K. The
respondent remained in India and went back to U.K. in May, 2009. On
reaching U.K., she lodged a complaint with the police on 13.05.2009 to
trace the whereabouts of Vaishali. Thereafter, she filed a case in the
U.K. Court in which, on 04.06.2009, an ex-parte order was passed
prohibiting the appellant from removing two minor children from England and
Wales. Further, restraint order was passed against the appellant from
removing Vaishali from attendance at Alwyn Infants School where she was
studying at that time. The appellant filed cross application and it led to
further legal tussle between the parties wherein the Court passed orders
from time to time. It is in November, 2009 that the respondent filed
divorce proceedings against the appellant in a Court in U.K. wherein she
has been granted decree of divorce. On 24.11.2009, as aforesaid, the
appellant shifted to India along with Vaishali. In their absence, the
respondent obtained British Citizenship of Vaishali on 13.07.2010.

Since the appellant had come to India with Vaishali, the respondent filed
Habeas Corpus Petition bearing Criminal Writ Petition No. 712 of 2010 in
the High Court of Punjab & Haryana wherein she impleaded, apart from the
appellant, his parents as well as Vaishali, as respondents. Other parties
who were made respondents were State of Haryana, Senior Superintendent of
Police, Haryana and Station House Officer, Police Station City Faridabad,
Haryana. This petition has been allowed by the High Court vide judgment
dated 25.05.2010 directing the appellant to handover the custody of
Vaishali to her mother i.e. the respondent. It is this judgment which is
impugned in the present proceedings.

It would be noticed that in May, 2010, when the petition was allowed,
Vaishali was almost 8½ years of age. Today, she is 15 years old.

The Special Leave Petition (which is converted into the instant appeal
after the grant of special leave) was filed immediately after the passing
of the impugned judgment by the High Court, which came up for hearing on
02.06.2010 before the Vacation Bench of this Court. While issuing notice
in the petition, this Court stayed the operation of the aforesaid judgment
of the High Court. That stay order has remained in operation, as a
consequence whereof custody of the child continues to be with the father.
The respondent, of course, has been granted visitation rights from time to
time as and when she came to India and moved an application in this behalf.
Such visitation rights have normally been for the entire period of her
stay in India on these visits, which range from seven days to even two
months. This fact is highlighted to show that the respondent is given
access to child for long periods as well, the details whereof are mentioned
hereafter.

When the case came up before this Court on 31.01.2013 (at that time,
Vaishali was 11 years of age), the Bench (comprising of Aftab Alam and
Ranjana Prakash Desai, JJ.) decided to meet Vaishali in order to interact
with her to ascertain her view point. Thereafter, the matter came up for
hearing on 02.04.2013 when the following order was passed:
“In the proceedings held on January 31, 2013, it was agreed between the
parties and was also noted in the order passed on that date that the child
Vaishali should stay with respondent No.1 (Sukriti Arora), the mother
of the child at her residence in Delhi for one month under monitoring by
this Court.

In continuation of that order, therefore, we direct that
Vaishali should stay with her mother, tentatively for one month from
today, subject to any further direction that may be passed by this Court
in the meanwhile. The address of respondent No.1 where she will stay with
her daughter Vaishali is 6578, Sector-C, Pocket-6&7, Vasant Kunj, Delhi
and her contact number (mobile)is:9968661822.

Ms. Madhavi Divan, one of the counsel representing the
petitioner shall hand over the child to her mother-respondent No.1 outside
the court room after we complete the passing of this order.

Respondent No.1 shall deposit her passport with the
Registrar (J-III) of this Court which shall be returned back to her
after Vaishali goes back to her father on completion of the term of her
stay with respondent No.1.

We are informed that Vaishali's school is reopening from
April 4, 2013. On behalf of Respondent No.1, it is stated that she will
ensure that the child reaches the school in time and is brought back to her
residence after school hours. The child's stay with her mother will,
in no way, affect her attendance at the school or her studies.

During her stay with the mother, the child will be free to
speak to her father on telephone (Mobile No. 9968661822). On behalf of
respondent No.1, it was stated that she would not create any obstruction in
the way of the child speaking to her father.

During the child's stay with her mother, we would like some
responsible and competent person to monitor the arrangement. We,
accordingly, request Mrs. Sadhana Ramachandran, who works for the Delhi
High Court Mediation and Conciliation Centre, to monitor the arrangement on
behalf of this Court. Mrs. Ramachandran shall visit the mother and
the child at the address noted above on a date and time of her
convenience. She would inform respondent No.1 on her mobile phone about the
proposed date and time of her visit to the respondent's place. She would
see how the relationship between the child and the mother is
developing and if need be, she would counsel both the child and the mother.

If the father wants to visit the child while she is staying
with her mother, he may do so at a time when Mrs. Sadhana
Ramachandran is also present there. For the purpose of the visit he will
have to take the necessary permission from Mrs. Ramachandran.

It is submitted on behalf of Respondent No.1 that she would
like to take the child to some resort or some hill station for a brief
holiday. We would like the mother and the child to stay in Delhi itself
but, in case, both the child and the mother together wish to go outside,
they may do so subject to the permission in writing taken from Mrs.
Ramachandran.

Mrs. Ramachandran would submit a report to this Court
within ten days from today.

Let this matter be listed for further direction along with the
report from Mrs. Ramachandran on April 12, 2013.”`

Mrs. Sadhana Ramachandran, who monitored the arrangement as per the
directions contained in the aforesaid order submitted her report. On going
through that report, further order dated 15.04.2013 was passed in the
matter and we reproduce that order as well in its entirety:
“Seen the report submitted by Mrs. Sadhana Ramachandran.

This Court is thankful to Mrs. Ramachandran for giving her
valuable time and attention and for acting as the counselor and
the Court's agent in this arrangement.

We note that under the exigencies of the situation, the
mother and the child have shifted from the address noted in the previous
order and are now living at the following address:

Ms. Sukriti Arora,
C/o. K.D. Prasher
C-2633, Sushant Lok Phase – I,
Gurgaon (Haryana).

The shift has been made with the permission of
Mrs. Ramachandran and with the consent of the father of the child.

The arrangement made by order dated April 02, 2013 may
continue for a period of one month from that date as indicated in that
order.

It is, however, made clear that while staying with her
mother, the child Vaishali can speak to her father and to Mrs.
Ramachandran as and when she wishes.

Both the petitioner and the respondent are directed to pay
heed to the advice of Mrs. Ramachandran and take part in
mediation, as suggested by her, with an open mind.

List on May 01, 2013.

Before that date, Mrs. Sadhana Ramachandran is requested to
submit a final report.”

On 01.05.2013, this Court took note of the fact that the respondent was
leaving for U.K. In these circumstances, direction was given to her to
return the custody of Vaishali to her father i.e. the appellant. The
aforesaid background needs to be kept in mind while deciding this custody
dispute.

We have gone through the entire record, including the orders passed by the
Courts in U.K. from time to time in various proceedings. In a recent
judgment pronounced on 13.02.2017 delivered by this Court in the case of
Vivek Singh v. Romani Singh, of which one of us (A.K. Sikri, J.) was the
member of the Bench, dilemma of the Court and the law on the subject was
taken note of. We reproduce the following paras of the said judgment in
order to make it self-contained in all respects:
“7. We have given our utmost serious consideration to the respective
submissions which a case of this nature deserves to be given. In cases of
this nature, where a child feels tormented because of the strained
relations between her parents and ideally needs the company of both of
them, it becomes, at times, a difficult choice for the court to decide as
to whom the custody should be given. No doubt, paramount consideration is
the welfare of the child. However, at times the prevailing circumstances
are so puzzling that it becomes difficult to weigh the conflicting
parameters and decide on which side the balance tilts.

8. The Hindu Minority and Guardianship Act, 1956 lays down the principles
on which custody disputes are to be decided. Section 7 of this Act
empowers the Court to make order as to guardianship. Section 17 enumerates
the matters which need to be considered by the Court in appointing guardian
and among others, enshrines the principle of welfare of the minor child.
This is also stated very eloquently in Section 13 which reads as under:

“13. Welfare of minor to be paramount consideration.

(1) In the appointment or declaration of any person as guardian of a Hindu
minor by a court, the welfare of the minor shall be the paramount
consideration.

(2) No person shall be entitled to the guardianship by virtue of the
provisions of this Act or of any law relating to guardianship in marriage
among Hindus, if the court is of opinion that his or her guardianship will
not be for the welfare of the minor.”

9. The Court in the case of Gaurav Nagpal v. Sumedha Nagpal[1] stated in
detail, the law relating to custody in England and America and pointed out
that even in those jurisdictions, welfare of the minor child is the first
and paramount consideration and in order to determine child custody, the
jurisdiction exercised by the Court rests on its own inherent equality
powers where the Court acts as 'Parens Patriae'. The Court further
observed that various statutes give legislative recognition to the
aforesaid established principles. The Court explained the expression
'welfare', occurring in Section 13 of the said Act in the following manner:

“51. The word “welfare” used in Section 13 of the Act has to be construed
literally and must be taken in its widest sense. The moral and ethical
welfare of the child must also weigh with the court as well as its physical
well-being. Though the provisions of the special statutes which govern the
rights of the parents or guardians may be taken into consideration, there
is nothing which can stand in the way of the court exercising its parens
patriae jurisdiction arising in such cases.

52. The trump card in the appellant's argument is that the child is living
since long with the father. The argument is attractive. But the same
overlooks a very significant factor. By flouting various orders, leading
even to initiation of contempt proceedings, the appellant has managed to
keep custody of the child. He cannot be a beneficiary of his own wrongs.
The High Court has referred to these aspects in detail in the impugned
judgments.”

10. We understand that the aforesaid principle is aimed at serving twin
objectives. In the first instance, it is to ensure that the child grows
and develops in the best environment. The best interest of the child has
been placed at the vanguard of family/custody disputes according the
optimal growth and development of the child primacy over other
considerations. The child is often left to grapple with the breakdown of an
adult institution. While the parents aim to ensure that the child is least
affected by the outcome, the inevitability of the uncertainty that follows
regarding the child’s growth lingers on till the new routine sinks in. The
effect of separation of spouses, on children, psychologically, emotionally
and even to some extent physically, spans from negligible to serious, which
could be insignificant to noticeably critical. It could also have effects
that are more immediate and transitory to long lasting thereby having a
significantly negative repercussion in the advancement of the child. While
these effects don’t apply to every child of a separated or divorced couple,
nor has any child experienced all these effects, the deleterious risks of
maladjustment remains the objective of the parents to evade and the court’s
intent to circumvent. This right of the child is also based on individual
dignity.

11. Second justification behind the 'welfare' principle is the public
interest that stand served with the optimal growth of the children. It is
well recognised that children are the supreme asset of the nation.
Rightful place of the child in the sizeable fabric has been recognised in
many international covenants, which are adopted in this country as well.
Child-centric human rights jurisprudence that has been evolved over a
period of time is founded on the principle that public good demands proper
growth of the child, who are the future of the nation. It has been
emphasised by this Court also, time and again, following observations in
Bandhua Mukti Morcha v. Union of India & Ors.[2]:

“4. The child of today cannot develop to be a responsible and productive
member of tomorrow's society unless an environment which is conducive to
his social and physical health is assured to him. Every nation, developed
or developing, links its future with the status of the child. Childhood
holds the potential and also sets the limit to the future development of
the society. Children are the greatest gift to humanity. Mankind has the
best hold of itself. The parents themselves live for them. They embody the
joy of life in them and in the innocence relieving the fatigue and drudgery
in their struggle of daily life. Parents regain peace and happiness in the
company of the children. The children signify eternal optimism in the human
being and always provide the potential for human development. If the
children are better equipped with a broader human output, the society will
feel happy with them. Neglecting the children means loss to the society as
a whole. If children are deprived of their childhood — socially,
economically, physically and mentally — the nation gets deprived of the
potential human resources for social progress, economic empowerment and
peace and order, the social stability and good citizenry. The Founding
Fathers of the Constitution, therefore, have emphasised the importance of
the role of the child and the need of its best development.”

12. Same sentiments were earlier expressed in Rosy Jacob v. Jacob A.
Chakramakkal[3] in the following words:

“15. ...The children are not mere chattels : nor are they mere play-things
for their parents. Absolute right of parents over the destinies and the
lives of their children has, in the modern changed social conditions,
yielded to the considerations of their welfare as human beings so that they
may grow up in a normal balanced manner to be useful members of the
society...”

13. It hardly needs to be emphasised that a proper education encompassing
skill development, recreation and cultural activities has a positive impact
on the child. The children are the most important human resources whose
development has a direct impact on the development of the nation, for the
child of today with suitable health, sound education and constructive
environment is the productive key member of the society. The present of the
child links to the future of the nation, and while the children are the
treasures of their parents, they are the assets who will be responsible for
governing the nation. The tools of education, environment, skill and health
shape the child thereby moulding the nation with the child equipped to play
his part in the different spheres aiding the public and contributing to
economic progression. The growth and advancement of the child with the
personal interest is accompanied by a significant public interest, which
arises because of the crucial role they play in nation building.”

In the case of Vivek Singh, the girl was 8 years of age. There also, the
child had remained with father for most of the period. It was decided to
give the custody to the mother. Among others, two weighty reasons which
prevailed with this Court were the age of the child, i.e. 8 years, and that
during this period, custody had remained with the father because of no
fault of the mother. This is clear from the following discussion in the
said judgment:
“14. In the instant case, the factors which weigh in favour of the
appellant are that child Saesha is living with him from tender age of 21
months. She is happy in his company. In fact, her desire is to continue
to live with the appellant. Normally, these considerations would have
prevailed upon us to hold that custody of Saesha remain with the appellant.
However, that is only one side of the picture. We cannot, at the same
time, ignore the other side. A glimpse, nay, a proper glance at the other
side is equally significant. From the events that took place and noted
above, following overwhelming factors in favour of respondent emerge.

(a) For first 21 months when the parties were living together, it is the
respondent who had nursed the child. The appellant cannot even claim to
have an edge over the respondent during this period, when the child was
still an infant, who would have naturally remained in the care and
protection of the respondent - mother, more than the appellant – father.
Finding to this effect has been arrived at by the High Court as well. This
position even otherwise cannot be disputed.

(b) The respondent was forcibly deprived by the custody of Saesha from
August 04, 2010 when she was forced to leave the matrimonial house. As per
the respondent, on that date the appellant in a drunken state gave beatings
to her and threw her out of the house. The respondent had called the
police. The police personnel called the military police and a complaint
was lodged. The respondent had also called her parents who had come to her
house from NOIDA. Her parents took hold of the child and the appellant and
when they were about to leave, the appellant pulled out the child from the
hands of her mother and went inside the house and locked himself. He was
drunk at that time. The police suggested not to do anything otherwise
appellant would harm the child. It was assured that the child would be
returned to her in the morning. In any case, the respondent and the
appellant were instructed to come to the police along with the child, next
morning. The appellant did not bring the child and threatened that he
would not give the child to her. Since then, she had been running from
pillar to post to get the child back but respondent had been refusing.

The respondent, therefore, cannot be blamed at all, if the
custody of the child remained with the appellant, after the separation of
the parties.

(c) Within the few days, i.e. on August 26, 2010, the respondent filed
the petition seeking custody of the child and for appointment of her
guardian. She did not lose any time making her intentions clear that as a
natural mother she wanted to have the custody of the child. It was her mis-
fortune that the trial court vide its judgment dated December 07, 2011
dismissed her petition. Though, she filed the appeal against the said
judgment immediately, but during the pendency of the appeal, the custody
remained with the appellant because of the dismissal of the petition by the
Family Court. The High Court has, by impugned judgment dated April 02,
2013 granted the custody to the respondent. However, the respondent has not
been able to reap the benefit thereof because of the interim orders passed
in the instant appeal. It is in these circumstances that child Saesha from
the tender age of 21 months has remained with the appellant and today she
is 8 years and 3 months. Obviously, because of this reason, as of today,
she is very much attached to the father and she thinks that she should
remain in the present environment. A child, who has not seen, experienced
or lived the comfort of the company of the mother is, naturally, not in a
position to comprehend that the grass on the other side may turn out to be
greener. Only when she is exposed to that environment of living with her
mother, that she would be in a position to properly evaluate as to whether
her welfare lies more in the company of her mother or in the company of her
father. As of today, the assessment and perception are one sided. Few
years ago, when the High Court passed the impugned judgment, the ground
realities were different.

xxx xxx xxx

16. The aforesaid observations, contained in para 31 of the order of the
High Court extracted above, apply with greater force today, when Saesha is
8 years' old child. She is at a crucial phase when there is a major shift
in thinking ability which may help her to understand cause and effect
better and think about the future. She would need regular and frequent
contact with each parent as well as shielding from parental hostility.
Involvement of both parents in her life and regular school attendance are
absolutely essential at this age for her personality development. She
would soon be able to establish her individual interests and preferences,
shaped by her own individual personality as well as experience...”

The circumstances, in the present case, however, are materially different.
Vaishali is a mature girl of 15 years of age. At this age, she can fully
understand what is in her best interest. She is competent to take a
decision for herself. There has been interaction with her by different
Benches of this Court from time to time, outcome whereof is reflected in
the orders passed after such meetings. She has unequivocally and without
any reservations expressed her desire to be with her father. More
importantly, she has very categorically said that she does not want to go
to U.K.

On 31.01.2013, this Court had noted that when her mother came to India, she
was not even willing to meet her. However, with the intervention of the
Court, a meeting was arranged between Vaishali and her mother. Even after
the said meeting, she was not willing to live with the respondent, her
mother. Fully realising that it may be due to the reason that all this
period, she had lived with her father, the Court deemed it proper to give
opportunity to the respondent to win love, confidence and trust of
Vaishali. The mother was allowed to stay for one month with Vaishali.
This order was continued on 02.04.2013 by extending the period by another
month. This time the arrangement that was made was to be monitored by Mrs.
Sadhana Ramachandran who was appointed for this purpose. Specific job
given to Mrs. Sadhana Ramachandran was to see how the relationship between
the child and the mother is developing. In case of need she was to counsel
both the child as well as the mother. Thus, an opportunity was given to
the respondent by allowing her the access of Vaishali for significant
period i.e. till 01.05.2013, whereafter the child was restored back to her
father, since the respondent had decided to go back to U.K. It is
unfortunate that even during this period, she was not able to influence the
thought process of Vaishali who is determined to remain with her father.

In fact, during the course of arguments before us, when the respondent was
also present, we asked the respondent as to whether she could shift to
India, even temporarily for a year or so, as in that eventuality, the Court
can consider giving custody of Vaishali to her for that period. However,
she expressed her inability to do so. She wants custody of Vaishali on her
own terms. She wants Vaishali to come to U.K. and live with her. Vaishali
does not want to go to U.K. at all. This Court cannot take the risk of
sending Vaishali to a foreign country, against the wishes of a mature girl
like Vaishali, as it may prove to be a turbulent and tormenting experience
for her. That would not be in her interest.

We also had interaction with Vaishali in the Chambers earlier. On the date
of hearing also, Vaishali was present in the Court and in front of her
parents, she unequivocally expressed that she was happy with her father and
wanted to continue in his company and did not want to go with her mother,
much less to U.K. From the interaction, it is clearly discernible that she
is a mature girl who is in a position to weigh the pros and cons of two
alternatives and to decide as to which course of action is more suited to
her. She has developed her personality and formed her opinion after
considering all the attendant circumstances. Her intellectual
characteristics are adequately developed. She is able to solve problems,
think about her future and understands the long term effects of the
decision which she has taken. We also find that she has been brought up in
a conducive atmosphere. It, thus, becomes apparent that in the instant
case, we are dealing with the custody of a child who is 15 years of age and
has achieved sufficient level of maturity. Further, in spite of giving
ample chances to the respondent by giving temporary custody of Vaishali to
her, respondent has not been able to win over the confidence of Vaishali.
We, therefore, feel that her welfare lies in the continued company of her
father which appears to be in her best interest.

The High Court in the impugned judgment had stated that since Vaishali was
a minor girl, she needed company of her mother more to understand girly
things. The High Court mentioned about the bond between girl child and
mother in abstract and from there only the High Court came to the
conclusion that it would be better to give the custody to the mother. The
High Court did not go into the specific situation and circumstances of this
case and did not make any objective assessment about the welfare of
Vaishali. Many circumstances which we have narrated above were not taken
note of.

On the facts of the present case, we are convinced that custody of the
child needs to be with father. She is already 15 years of age and within 3
years, she would be major and all this custody battle between her parents
would come to an end. She would have complete freedom to decide the course
of action she would like to adopt in her life. We, thus, allow this appeal
and set aside the judgment of the High Court.
No costs.

.............................................J.
(A.K. SIKRI)

.............................................J.
(R.K. AGRAWAL)

NEW DELHI;
FEBRUARY 17, 2017.
ITEM NO.1A COURT NO.8 SECTION IIB
(For judgment)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS

Criminal Appeal No. 717/2013

JITENDER ARORA & ORS. Appellant(s)

VERSUS

SUKRITI ARORA & ORS. Respondent(s)

Date : 17/02/2017
This appeal was called on for pronouncement of judgment today.

For Appellant(s)
Mr. S. S. Jauhar, Adv.

For Respondent(s)
Mr. Viresh B. Saharya, Adv.

Mr. Birendra Kumar Choudhry, Adv.
Mr. Sanjay Kumar Visen, Adv.

Hon'ble Mr. Justice A. K. Sikri pronounced the judgment of the
Bench comprising His Lordship and Hon'ble Mr. Justice R. K. Agrawal.

The appeal is allowed in terms of the signed reportable
judgment.
In view thereof, pending applications, if any, stand disposed
of.

(Nidhi Ahuja) (Mala Kumari Sharma)
Court Master Court Master

[Signed reportable judgment is placed on the file.]
-----------------------
[1]
(2009) 1 SCC 42
[2] (1997) 10 SCC 549
[3] (1973) 1 SCC 840

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.
-----------------------
[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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18

LAW FOR ALL

LawforAll

advocatemmmohan

Just for legal information but not form as legal opinion

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.