REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 1398-1399 OF 2011
MEHMOODA GULSHAN … APPELLANTS (S)
VERSUS
JAVAID HUSSAIN MUNGLOO … RESPONDENT(S)
J U D G M E N T
KURIAN, J.:
Whether the requirement of the landlord for own occupation could also mean
occupation by a member of the family, in this case, the son, is the short
question arising for consideration.
Appellant filed Civil Suit No. 42 of 2000 seeking eviction of the
respondent from the premises let out to him on 15.11.1997 for a period of
eleven months. The said tenancy was verbally extended for a further period
of eleven months though it was the contention of the respondent that the
said extension was for eleven years. Since, the premises was not vacated
after the extended period of eleven months, the suit was filed for
eviction.
Besides the ground on expiry of the period, it was the case of the
appellant that the premises was required for her own use. To quote from
paragraph-5 of the plaint:
“5. xxx xxx xxx xxx xxx
That the plaintiff has been deserted by her husband namely : Ch. Mohd
Khatai who has arranged 2nd marriage in the state of Bangalore, leaving
behind the plaintiff and two sons namely Shujat Huyder aged 27 years
unemployed and Waseem Hyder aged 15 years, presently reading in 9th class.
That the plaintiff has no source of income after the desertion by her
husband and elder sons being of 27 years old is still unemployed because
of the fact, that the son of the plaintiff namely Shujat Hyder is simply a
matriculate.
That the plaintiff being a house lady and intends to use the rental
premises by observing his elder son to start his own business as such the
plaintiff requires the rental premises for her son who can support the
family in the long run.
That the plaintiff has no other source of income except to use the rental
premises by observing her elder son for starting his own business in the
rental premises.
That the son of the plaintiff cannot claim any Govt. service because of the
fact he is simply a matriculate and he is at the verge of crossing the age
limit.
That the plaintiff cannot absorb her son in any private institution, he
only alternative is to start his business in the rental premises.
That the plaintiff requires the rental property for her personal use,
enabling her elder son to establish the business therein.
That the plaintiff has a liability of her sons, as such requires the rented
property for establishing own business therein.”
The following issues were framed by the trial court:
“1. Whether the defendant was bound to hand over the possession of the
suit premises to the plaintiff after the period of tenancy was over on
13.11.1999? OPP.
2. Whether the plaintiff requires the suit premises for her unemployed
son?... OPP
3. Whether the plaintiff has rented the premises for period of 11 years,
as such is stopped from claiming the eviction before the stipulated
period?... OPD
4. What is the comparative advantage and disadvantage of the parties?...
OPP/OPD
5. Whether the requirement of the plaintiff will be satisfied by
partially affecting the defendant from suit premises?... OPD
6. To what relief the plaintiff is entitled to?”
Since we are concerned mainly with the requirement on the ground of own
occupation, we confine references only to the consideration of issues 2 and
4.
“Issue No.2: With regard to issue no.2 whether the plaintiff require
the premises for her unemployed son.
There is ample evidence on the file lead by the plaintiff as well as
admitted in cross examination by the defendant that the husband of
plaintiff has married with a Hindu girl at Cochin and he is residing with
his second wife there. The plaintiff has two sons both of them are idle.
The elder one being of the aged of about 30 years is not doing any work and
that way is idle. It is also on the record that he is not qualified so that
he may aspire for any government job nor has it been proved by the
defendant that he is associated with the business of his father at Kochin.
Every parent has a cherished desire to get his or her ward settled in some
job so that he can have a sustenance in his life. The plaintiff does not
possess any commercial building other than the suit premises where her son
could start any business for his sustenance. Though it is settled law on
the subject that there is a difference between desire and requirement.
Requirement means when objectively seen there must be the necessity with
the party to require the premises for his own use. It is not a sheer desire
only whether the landlord may show his intent to occupy the premises. So
there is a difference between the two situations and while differentiating
the two situations the evidences on the file is sufficient to prove that
the son of the plaintiff is in his 30s and is still idle. In these hard
times, the family requirements cannot be met by mere rent of Rs.5000/-
which defendant is paying. So in the given circumstances, it has been
proved by the plaintiff that plaintiff requires the suit premises for her
unemployed son. The defendant has though tried to controvert this position
but have not been able to convince the court that the son of the plaintiff
is in any manner associated with the business of his father at Cochin. So
this issue is also decided in favour of the plaintiff.
Issue No.4: With regard to issue no.4 of comparative advantage and
disadvantage of the parties, the law on the subject is very clear that we
have to take into account while comparing the advantages and disadvantages
of the respective parties the interests of the person for whose benefit the
house and shop is held whether he being landlord or the tenant. The
explanation to clause (h) of the J&K Houses and Shop Rent Control Act
contains specific provisions regarding the weighing and measuring the
relative hardship which may be caused to the tenant or landlord in case of
granting or refusing a decree for eviction. The principle of law enacted
with the expansion is to the effect that the law will lean in favour of the
person to whom the greater inconvenience and hardship is caused and would
grant the relief to the landlord only when his hardships are likely to
exceed the hardships which may be caused to the tenant. Thus, the question
of comparative advantage and disadvantage has an important bearing on the
question of granting or refusing the relief. The question of balance of
convenience or principle of comparative advantage and disadvantage will
come up only when the court is satisfied that the premises are reasonably
required by the landlord or any person for whose behalf the house or shop
is held. But before this is to be decided, the court has to find and
determine two things i.e. I) reasonable requirements of the landlord or the
person for whose benefit the house or shop is held; II) comparative
advantage and disadvantage of the landlord or any person and the tenant and
these two ingredients must coexist. So what is to be seen while comparing
these two aspects, we have to consider the reasonable requirement of the
landlord or ejectment of his tenant. The question of requirement always
differs from case to case depending on the facts of its own. While
comparing advantages and disadvantages of the parties, we have to apply our
mind objectively firstly to this aspect whether requirement of the landlord
is real and is only not a desire, but there is some compulsion that he
requires the premises for his own use and it is also to be seen whether by
eviction the defendant may not be put to such a disadvantage in which he
cannot be compensated. So, the need of the landlord must be pressing one
and real. Applying this test to the facts of the instant case and taking
stock of the evidence recorded by the defendant as well as by the
plaintiff, it is not disputed. It is also in the evidence that the
landlords is not having any source of income other than the rent received
through Rent controller and naturally speaking the amount of Rs.5000/- per
month is so paltry amount in these hard times when every item of the day to
day needs is so costly that hardly she cannot sustain her family. Thus in
the given situation it is the landlord whose need is more pressing and real
an is put to disadvantage in comparison to the disadvantage which would be
caused to the defendant by eviction because the machinery installed can be
removed with much case and he can get on rent any other alternative
premises in the vicinity and that will not put to jeopardy the interests of
the defendant. Therefore, the comparative advantage and disadvantage is
also in favour of the landlord. Hence, this issue is also decided in favour
of the plaintiff.”
Issue No. 5, on partial eviction, was also answered in favour of the
plaintiff. Thus, by judgment dated 12.12.2007, the suit was decreed.
Aggrieved, the respondent filed Civil First Appeal No. 228 of 2007 before
the High Court of Jammu and Kashmir at Srinagar. The learned Single Judge,
by judgment dated 04.08.2009, allowed the appeal. According to the learned
Single Judge:
“From the pleadings it would appear that the premises is required for the
son of the respondent. The respondent’s case before the trial court was
that her son was unemployed and that the suit premise was required for him.
The trial Court, as noticed above, found that the respondent has two sons
both of them are alive. The elder one of the age of 30 years, is not doing
any work and that way is idle. The trial Court has further found that the
son of the respondent is not qualified so that he may aspire for any
government job. On going through the evidence it would, however, appear
that the findings are based on either the statement of the plaintiff or her
witnesses. The best witness in these circumstances, to depose on the
personal requirement was the son of the respondent himself but he has not
been examined as witness before the trial Court. No explanation has been
given for his non examination.”
It was also held that:
“There is nothing in the statement of the respondent which could even
indirectly suggest the nature of the business that her son intends to carry
on this property, his resources to carry on the business and his aptitude
and physical strength and other facts requisite for such a purpose. Thus
the evidence is so vague that no reliance can be placed on it.
Reasonable requirement is a question of law but whether the landlord has,
in a suit for eviction under Section 11 (h) of the J&K Houses and Shops
Rent Control Act, proved it or not is essentially a question of fact. Onus
to prove is on the plaintiff. While judging the requirement of a landlord
(or the person for whose use the shop is required), the court has to take
into account a variety of factors such as the social status of the
concerned person, the standard of his living, his habits, his comforts, the
state of his health, the number of his family members, the nature of
business he intends to start and the suitability of the property for such
business, the resources he has got to run the business and the like. If the
very person who needs the shop for his use is reluctant to appear before
the Court, the Court would not extend any help to him and would not grant
any relief in his favour.”
Aggrieved, the appellant filed intra-court appeal as Letters Patent Appeal
No. 175 of 2009 leading to the impugned judgment dated 23.10.2009. The
Division Bench concurred with the learned Single Judge and held that the
appellant has failed to prove that the premises was required for own
occupation, and hence, the appeal.
Heard Mr. V. Giri, learned Senior Counsel appearing for the appellant and
Ms. Diksha Rai, learned Counsel appearing for the respondent.
Section 11(1)(h) of the Jammu and Kashmir Houses and Shop Rent Control Act,
1966 (hereinafter referred to as “the Act”), is the relevant provision:
“Section 11(1)(h) “… where the house or shop is reasonably required by the
landlord either for the purposes of building or re-building, or for his own
occupation or for the occupation of any person for whose benefit the house
or shop is held;”
The main ground on which the appellant was non-suited in the first appeal
and the intra-court appeal is that the appellant has failed to establish
her reasonable requirement for own occupation. Having not examined the son
who intends to do the business, according to the High Court, the
requirement of own occupation was not established.
We fail to understand the approach made by the High Court. It has clearly
come in evidence of the appellant that her one son is unemployed and in
view of unemployment, he was frustrated. The appellant’s husband had
contracted second marriage and he had deserted the appellant. The appellant
herself was unemployed with no source of income. The appellant, hence,
prayed that the property be returned to her so that her son can look after
the family. In cross-examination, she denied the suggestion that the son
was doing business with his father. It had also been stated further that
“except the premises and the residential house, the plaintiff has no other
property”. The trial court has meticulously analyzed and appreciated the
reasonable requirement of the premises for the business to be managed by
the son of the appellant especially in her peculiar family circumstances.
In our view, trial court has appreciated the evidence in the right
perspective and held that it is not mere desire but genuine need. The
finding of the trial court was challenged mainly on the ground that the
son, for whose benefit the eviction is sought, has not been examined.
Mere non-examination of the family member who intends to do the business
cannot be taken as a ground for repelling the reasonable requirement of the
landlord. Under the Act, the landlord needs to establish only a reasonable
requirement. No doubt, it is not a simple desire. It must be a genuine
need. Whether the requirement is based on a desire or need, will depend on
the facts of each case.
In Bega Begum and others v. Abdul Ahad Khan (dead) by Lrs. and others[1],
this Court has taken the view that the requirement only connotes an element
of genuine need. To quote from paragraph-13:
“13. Moreover, Section 11(h) of the Act uses the words “reasonable
requirement” which undoubtedly postulate that there must be an element of
need as opposed to a mere desire or wish. The distinction between desire
and need should doubtless be kept in mind but not so as to make even the
genuine need as nothing but a desire as the High Court has done in this
case. It seems to us that the connotation of the term “need” or
“requirement” should not be artificially extended nor its language so
unduly stretched or strained as to make it impossible or extremely
difficult for the landlord to get a decree for eviction. Such a course
would defeat the very purpose of the Act which affords the facility of
eviction of the tenant to the landlord on certain specified grounds. This
appears to us to be the general scheme of all the Rent Control Acts
prevalent in other States in the country. This Court has considered the
import of the word “requirement” and pointed out that it merely connotes
that there should be an element of need.”
Bega Begum (supra) has also considered the scope and ambit of the
expression “reasonable requirement” at paragraph-17:
“17. This brings us to the next limb of the argument of the learned Counsel
for the respondents regarding the interpretation of Section 11(1)(h) of the
Act. Section 11(1)(h) of the Act runs thus:
“11(1)(h… where the house or shop is reasonably required by the landlord
either for purposes of building or rebuilding, or for his own occupation or
for the occupation of any person for whose benefit the house or shop is
held;
Explanation.—The Court in determining the reasonableness of requirement for
purposes of building or rebuilding shall have regard to the comparative
public benefit or disadvantage by extending or diminishing accommodation,
and in determining reasonableness of requirement for occupation shall have
regard to the comparative advantage or disadvantage of the landlord or the
person for whose benefit the house or shop is held and of the tenant.”
It was submitted by Mr Andley, learned Counsel for the respondents that the
words used in Section 11(1)(h) are “that the house should be required by
the landlord for his own occupation or for the occupation of any person for
whose benefit the house or shop is held”. It was argued that the words “own
occupation” clearly postulate that the landlord must require it for his
personal residence and not for starting any business in the house. We are,
however, unable to agree with this argument. The provision is meant for the
benefit of the landlord and, therefore, it must be so construed as to
advance the object of the Act. The word “occupation” does not exclude the
possibility of the landlord starting a business or running a hotel in the
shop which also would amount to personal occupation by the landlord. In our
opinion, the section contemplates the actual possession of the landlord,
whether for his own residence or for his business. It is manifest that even
if the landlord is running a hotel in the house, he is undoubtedly in
possession or occupation of the house in the legal sense of the term.
Furthermore, the section is wide enough to include the necessity of not
only the landlord but also of the persons who are living with him as
members of the same family.”
In Joginder Pal v. Naval Kishore Behal[2], after extensively referring to
all the decisions of this Court and some other High Courts, it was held
that in interpreting “own use”, the court should adopt a practical and
meaningful approach guided by realities of life. The guidelines are being
summarized at paragraph-33:
“33. Our conclusions are crystallised as under:
(i) The words “for his own use” as occurring in Section 13(3)(a)(ii) of the
East Punjab Urban Rent Restriction Act, 1949 must receive a wide, liberal
and useful meaning rather than a strict or narrow construction.
(ii) The expression — landlord requires for “his own use”, is not confined
in its meaning to actual physical user by the landlord personally. The
requirement not only of the landlord himself but also of the normal
“emanations” of the landlord is included therein. All the cases and
circumstances in which actual physical occupation or user by someone else,
would amount to occupation or user by the landlord himself, cannot be
exhaustively enumerated. It will depend on a variety of factors such as
interrelationship and interdependence — economic or otherwise, between the
landlord and such person in the background of social, socio-religious and
local customs and obligations of the society or region to which they
belong.
(iii) The tests to be applied are: (i) whether the requirement pleaded and
proved may properly be regarded as the landlord’s own requirement; and,
(ii) whether on the facts and in the circumstances of a given case, actual
occupation and user by a person other than the landlord would be deemed by
the landlord as “his own” occupation or user. The answer would, in its
turn, depend on (i) the nature and degree of relationship and/or dependence
between the landlord pleading the requirement as “his own” and the person
who would actually use the premises; (ii) the circumstances in which the
claim arises and is put forward; and (iii) the intrinsic tenability of the
claim. The court on being satisfied of the reasonability and genuineness of
claim, as distinguished from a mere ruse to get rid of the tenant, will
uphold the landlord’s claim.
(iv) While casting its judicial verdict, the court shall adopt a practical
and meaningful approach guided by the realities of life.
(v) In the present case, the requirement of the landlord of the suit
premises for user as office of his chartered accountant son is the
requirement of landlord “for his own use” within the meaning of Section
13(3)(a)(ii).”
Joginder Pal (supra) was followed in many subsequent decisions and one
close to the dispute in the instant case is Ajit Singh and another v. Jit
Ram and another[3]. It has been held at paragraph-19:
“19. From the aforesaid decision of this Court (in Joginder Pal case), it
is therefore clear that this Court has laid down authoritatively that a non-
residential premises, if required by a son for user by him would cover the
requirement of the words used in the section i.e. “for his own use” in
reference to a landlord. …”
In C. Karunkaran (dead) by Lrs. v. T. Meenakshi[4], one issue which arose
for consideration was whether non-examination of the person for whose need
the building was required was fatal. It was held that “mere non-examination
of the person for whose need the building was required by itself was no
ground to non-suit the landlady”. To quote:
“… Mere non-examination of the person for whose need the building was
required by itself was no ground to non-suit the landlady. In a number of
decisions, [this fact is acknowledged by the first appellate court also],
it has been held that it is not necessary to examine the person for whose
need the premises are required. It depends on the facts and circumstances
of each case. …”.
In Gulraj Singh Grewal v. Dr. Harbans Singh and another[5], this Court had
an occasion to see whether a landlord can be non-suited on the ground of
non-examination of the son for whose benefit the premises is sought to be
vacated. This Court held that in case the need has otherwise been
established in evidence, the non-examination is not material. At the best,
it is only a matter of appreciation of evidence. To the extent relevant,
paragraph-8 reads as follows:
“8. Learned counsel for the appellant submitted that the personal need
found proved is only of respondent 2, son of respondent 1, who did not
enter the witness-box and, as stated in an affidavit filed in this Court,
even he is carrying on his profession at a place about 25 kms. away from
Ludhiana, in our opinion, this finding of fact is unassailable. The High
Court has clearly observed that no meaningful argument could be advanced on
behalf of the appellant to challenge this finding of the appellate
authority. Respondent 1 who is the father of respondent 2, has supported
and proved the need of respondent 2, who also is a landlord. The fact that
for want of suitable accommodation in the city of Ludhiana, respondent 2 is
at present carrying on his profession at some distance from Ludhiana is not
sufficient to negative the landlord’s need. In these circumstances, the non-
examination of respondent 2 also, when respondent 1 has examined himself
and proved the need of the landlord, is immaterial and, at best, a matter
relating only to appreciation of evidence, on which ground this finding of
fact cannot be reopened. … .”
Thus, the question is whether there is a reasonable requirement by the
landlord of the premises. This would depend on whether the landlord has
been able to establish a genuine element of need for the premises. What is
a genuine need would depend on the facts and circumstances of each case.
Merely because the landlord has not examined the member of the family who
intends to do business in the premises, he cannot be non-suited in case he
has otherwise established a genuine need. The need is a matter of
appreciation of evidence, and once there is no perversity in the
appreciation of evidence on the need, the said finding of fact cannot be
reopened. It may be crucially relevant to note that the eviction is not
sought on the last limb of Section 11(1)(h) of the Act namely, “for the
occupation of any person for whose benefit the house or shop is held”. The
premises sought to be evicted is not held for the benefit of the son alone;
but the whole family. It is for the own occupation of the landlord. It has
been established in the facts of this case that the landlord was not happy
and content with the paltry rent received from the premises. The landlord
intended to engage her son in the business at the premises. It is for the
landlord to decide as to the best use the premises should be put to. There
is nothing wrong on the part of a landlord in making plans for a better
living by doing business engaging her son. Having regard to the background
of the son who is unemployed and undereducated, the appellant was able to
establish that business was the available option and the tenanted premises
was the only space available. Thus, the genuine need for the premises has
been established. Unfortunately, the High Court has missed these crucial
aspects.
The appellant having established a reasonable requirement of the tenanted
premises for own occupation, is entitled to succeed. Therefore, the appeals
are allowed. The judgment of the learned Single Judge in the first appeal
and confirmed in the intra-court appeal by the Division Bench, which is
impugned in these appeals, is set aside. The judgment and decree of the
trial court is restored. The respondent is granted a period of three months
to surrender vacant possession.
There shall be no order as to costs.
…...…..………………….J.
(KURIAN JOSEPH)
...……..………………….J.
(A.M. KHANWILKAR)
NEW DELHI;
FEBRUARY 17, 2017.
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[1] (1979) 1 SCC 273
[2] (2002) 5 SCC 397
[3] (2008) 9 SCC 699
[4] Civil Appeal No. 2773 of 2002 decided on 06.10.2005
[5] (1993) 2 SCC 68
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