# PHIROZE BAMANJI DESAI v. CHANDRAKANT M. PATEL & ORS

- **Citation:** [1974] 3 S.C.R. 267
- **Court:** Supreme Court of India
- **Decided:** 1974-02-04
- **Case number:** Civil Appeal No. 2208 of 1972
- **Bench:** P. N. Bhagwat!, P. K. Goswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/phiroze-bamanji-desai-v-chandrakant-m-patel-ors-6041
- **Pages:** 12

## Headnote

f!on1bay. Rents Hotel and Lodging Hollse Rates (Control) Act (57 of
19' I), Sections 13( l)fg), 13(2) and 29(3 )-ReaJonable and bona/ide require1nent of preniises for personal use and occupation-Juridical possession of
other pren1ises
1by landlord-Whether can be1 taken into account in determining
need of landlord.
Bon1ba)' Rents, Hotel and Lodging House Rates (Control) Act, Sec. 29(3)
Rev(sional p"wers of the High Court--Scope-Hig.h Court can interfere only
if tfiere is n1iscarriage of justice due to n1istake I of law-Finding of lower
court a_f to bona fide require1ne111 and greater hardship to Jandlord-lnterJerence by High Coutt by re~appreciating evidence not pennissible.
The appellant was the owner of -two bungalows, called "'Truth Bungalow''
and ''Hill Bungalow''
1 in. Navsari, South Gujarat. The Truth Bungalow consisted of only one tenement \Yith a separate room on the ground floor which
was in the possession of the <1.ppell<int,
The rest of the Truth Bungalow wl:iiCh
had been let out to a tenant who subsequently surrendered possession was
given on leave-and-licence to one B in 1967.
The Hill Bungalow consisteJ of two tenements, one on the ground fioOI'
and the other on the first floor.
The first floor is occupied by S, the mother
of the appellant since the last seyeral years.
She was paying a sum of
Rs. 50/- p·.m. to the appellant for the occupation of the first floor.
The
ground floor of the Hill Bungalow was let out by the appellant to one M in
1957 at a rent of Rs. 65/- p.m.
M died in September 1966 leaving behind
him his ·widow, respondent No. 5, his son, Resp. No. 1 and his daughter,
respondent No. 2.
Sometime prior to the death of M respondent Nos. 3 and
4 together with the members or their respective families had come to reside
in the ground floor pren1ise.;;,
After the death of M they continued to stay with
respondent No. 1, Respondent Nos. 2 and 5, however, left the ground floor
premises and went away from Navsari soon after the death of M. Th! l!Ppellant by a notice elated 15-10-1966 terminated the tenancy of respondent Nos.
1, 2 and 5. on the ground that they had unlawfully sub-let the ground floor
premises to respondents Nos. 3 ·and 4 within the meaning of sec. 13(1)(e)
of the Act.
However. the respondents failed to hand over vacant possession
of the ground floor prernises to the appellant. Therefore, on 18-1-1967, the
appellant filed a suit for e\·iction under sec. 13( l)(e) of the Act. The appel·
!ant was carrying on his profession as an Architect and Consulting Engineer
in Bombay since 1960, \\hen he retired from Army SerVice.
He lived in a
flat in Bombay for \\hich he paid Rs. 475/- p.m. The principal area of his
work in the earlv stages of hi" career was Rombay and South Gujarat but by
~·bout the middle· of I96!l,
hie; work in Bombay practicalJy dwindled to nil
find his profesc;ionnl r!Cti,-ities became confined almost exc!usively to South
Gnj:i-::at.
The appellant accordingly decided to settle down in Navsarj which
was bis natiYe place where hie; mother was living for
last several
yenr<J
and
frotn where he would be able to carry on his profession conveniently. cccnon~ically and \\ith ad\'ar.tage.
The appellant accordingly at,nended the .J:?laint
in lhe pendinc. suit with the ]eave of the Court introducing an add1t1onal
ground that he reasonably t•nd bD.":.1 fide required the groun~ floor premises
for his personal use and occupation and was, therefore, entitled . to recover
possession u/s 13(l)(g) of the Act. Respondent N.o~. 2 .and S did not contest the suit of the appellant as they \Vere not residing tn the groun:l floor
premises and the main aefen:e \Vas on behalf of respondent Nos. 1, 3 nnd 4,
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[ 1974] 3 S.C.R.
who denied the allegations made in the plaint and disputed .the grounds on
which possession was sought to be iecovered by the appellant.
The trial Court on consideration of the evidence led on behalf of the appellant and respondent nos. 1,3 and 4, took the view that t

## Text

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267
PHIROZE BAMANJI DESAI
v.
CHANDRAKANT M. PATEL & ORS.
February 4, 1974
[P. N. BHAGWAT! AND P. K. GOSWAMI, JJ.]
f!on1bay. Rents Hotel and Lodging Hollse Rates (Control) Act (57 of
19' I), Sections 13( l)fg), 13(2) and 29(3 )-ReaJonable and bona/ide require1nent of preniises for personal use and occupation-Juridical possession of
other pren1ises
1by landlord-Whether can be1 taken into account in determining
need of landlord.
Bon1ba)' Rents, Hotel and Lodging House Rates (Control) Act, Sec. 29(3)
Rev(sional p"wers of the High Court--Scope-Hig.h Court can interfere only
if tfiere is n1iscarriage of justice due to n1istake I of law-Finding of lower
court a_f to bona fide require1ne111 and greater hardship to Jandlord-lnterJerence by High Coutt by re~appreciating evidence not pennissible.
The appellant was the owner of -two bungalows, called "'Truth Bungalow''
and ''Hill Bungalow''
1 in. Navsari, South Gujarat. The Truth Bungalow consisted of only one tenement \Yith a separate room on the ground floor which
was in the possession of the <1.ppell<int,
The rest of the Truth Bungalow wl:iiCh
had been let out to a tenant who subsequently surrendered possession was
given on leave-and-licence to one B in 1967.
The Hill Bungalow consisteJ of two tenements, one on the ground fioOI'
and the other on the first floor.
The first floor is occupied by S, the mother
of the appellant since the last seyeral years.
She was paying a sum of
Rs. 50/- p·.m. to the appellant for the occupation of the first floor.
The
ground floor of the Hill Bungalow was let out by the appellant to one M in
1957 at a rent of Rs. 65/- p.m.
M died in September 1966 leaving behind
him his ·widow, respondent No. 5, his son, Resp. No. 1 and his daughter,
respondent No. 2.
Sometime prior to the death of M respondent Nos. 3 and
4 together with the members or their respective families had come to reside
in the ground floor pren1ise.;;,
After the death of M they continued to stay with
respondent No. 1, Respondent Nos. 2 and 5, however, left the ground floor
premises and went away from Navsari soon after the death of M. Th! l!Ppellant by a notice elated 15-10-1966 terminated the tenancy of respondent Nos.
1, 2 and 5. on the ground that they had unlawfully sub-let the ground floor
premises to respondents Nos. 3 ·and 4 within the meaning of sec. 13(1)(e)
of the Act.
However. the respondents failed to hand over vacant possession
of the ground floor prernises to the appellant. Therefore, on 18-1-1967, the
appellant filed a suit for e\·iction under sec. 13( l)(e) of the Act. The appel·
!ant was carrying on his profession as an Architect and Consulting Engineer
in Bombay since 1960, \\hen he retired from Army SerVice.
He lived in a
flat in Bombay for \\hich he paid Rs. 475/- p.m. The principal area of his
work in the earlv stages of hi" career was Rombay and South Gujarat but by
~·bout the middle· of I96!l,
hie; work in Bombay practicalJy dwindled to nil
find his profesc;ionnl r!Cti,-ities became confined almost exc!usively to South
Gnj:i-::at.
The appellant accordingly decided to settle down in Navsarj which
was bis natiYe place where hie; mother was living for
last several
yenr<J
and
frotn where he would be able to carry on his profession conveniently. cccnon~ically and \\ith ad\'ar.tage.
The appellant accordingly at,nended the .J:?laint
in lhe pendinc. suit with the ]eave of the Court introducing an add1t1onal
ground that he reasonably t•nd bD.":.1 fide required the groun~ floor premises
for his personal use and occupation and was, therefore, entitled . to recover
possession u/s 13(l)(g) of the Act. Respondent N.o~. 2 .and S did not contest the suit of the appellant as they \Vere not residing tn the groun:l floor
premises and the main aefen:e \Vas on behalf of respondent Nos. 1, 3 nnd 4,
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[ 1974] 3 S.C.R.
who denied the allegations made in the plaint and disputed .the grounds on
which possession was sought to be iecovered by the appellant.
The trial Court on consideration of the evidence led on behalf of the appellant and respondent nos. 1,3 and 4, took the view that the appellant had not
established that respondents nos. 3 a)ld 4 were sub-tenants of respondent no.1
and, therefore, the appellant was not entitled to recover possession of the
ground floor prernise·s on the ground of unlawful sub-letting.
However, the trial
court held that the evidence on record was sufficient to establish that the appellant reasonably and bona tide required the ground floor premises for personal use
and occupation and it WJS also dear from the evidence that greater hardship
would not be caused to respondent nos. 1, 2 and 5 by passing a decree for eviction
than what would be caused to the appellant by refusing to pass it. The trial
Court passed a decree for eviction against the respondents.
On appeal by the
respondents. nos. 1 to 4. to the Distnct Cl)urt, the District Judge confirmed the
decree for eviction anQ. dismissed the appeal.
This led to the filing of Revision
Application before the High Court u/s 29(3) of the Act,
The High Court
intedered with the findings of the District Judge on both the questions, namely,
reasonable and bona fide requirement for personal use and occup~tion as also
greater hardship and held on re·appreciation of the evidence that the appellant
had failed to establish that he reasonably and bona fide required the ground
floor premL';es for his personal use and occupation and in any event, greajer
hardship would be caused to respondent no. 1 by passing a decree for eviction
than by refusing to pass it. The High Court accordingly set aside the decree
for eviction and dismissed the suit of the appe11ant.
On
appeal
by
special
leave to this Court, the appellant contendeJ that in reversing the findings of the
District Judge on the aforesaid questions, the High Court exceeded its jurisdiction u/s 29(3), since both these tindings were tinding~ of fact which did not
suffer from any mistake of law and the jurbdiction of the High Court under
that section was limited only to exam1n1ng whether the decision of the District
Judge was "according to law''.
HELD : ( 1) The High Court was. on the evidence of record, in error in
reversing
the
findings
of
fact
recorded
by the
District Judge.
For
the purpose of determining whether the requirement of the appellant for the
ground floor premises was reasonable and bona fide,
what was necessary to
be considered wa" not whether the appeliant ¥.'as juridically in possession of
the Truth Bungalow but whether the Truth Bang:alow
was
available
to
the
appellant for occupation so that he could not be said to need the ground
Hoor premises. If the Truth Bungalow was in occupation of B on leave
an.ct
licence, it was obviously not available to the appellant for occupation and 1t
could not be taken into account for negativing the need of the appellant for
the ~round floor premises.
The finding of the District Judge on the question of reasonable and bona
fide requirement was clearly one of fact.
The Dist. Judge did not misdirect
himself in regard to the true meaning of the word "require" in sec. 13(1) (g)
and interpreted it correctly to mean that there must be an element of need
before a landlord can be said to ''require" the premises for his own use and
occupation.
[274 CJ
It is not enough that the landlord should merely desire to use and occupy
the premises,
What is necessary is that he shou.ld need thef!l for his own
use and occupation. _ This was the correct test applied by the D1stt.
Judge
fo
the facts found by him. Therefore, it was not competent f'!r th~ Htg~ Court
in the exercise of its re,•isional power under sec. 29(3) to 1ntertcre with thts
findi11p br re·appreciating the evidenc~. The High <;ourt\i 1e·,1p11r<>.isal of the
;vidence JH':ri substitution of its own finding~ of fact 1n place vf
.t~at reached
by the
D:-'1.-..~ct Jadge was clearly cntside the scope of the rev1s1onal power
U/'i 29(3). [274 E}
'l"l:e Hi,.h Court can interfere with the decision of the lower court u/s
29(3}
only~ if there is mis-carriage of justice due to mistake of law.
~e
HW1 <.:ourt cannot re-assess value of_ the evidence and interfere with a finding
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269
of fact merely because it thinks that the appreciation of the evidence by the lower
court is wrong and the lower Court should have reached a different conclusion
of fact from what it did.
L273 F]
Hari Shankar v. Rao Girdharilal Choudhury [1962] Supp, 1 S.C.R. 933,
Bt>II & Clo. Ltd. v. Waman Hemraj [1938] 40 Bom, L. R. 125 and Puranchand
V. Motilal [!963] Supp. 2 s.C.R. 906 relied on.
(2) On the question of greater hards~ip, the District Judge decided against
the respondents on the view that as soon as the landlord establishes that he
rcsasonbly and bona fide requires the premises for ·his own use and occupation,
the burden of proving the greater hardship by passing a decree for eviction
than refusing to pass it is on the tenant and if the tenant fails to discharge
this burden by producing proper evidence, a decree for eviction must go
against him. This view in regard to the burden of proof is not correct law.
[276 CJ
Kelly v. Goodwin,"'[1947] All Engl. Report g10, distinguished.
1.\1/s. Central Tobacco Co. v. Chandra Prakash, Civil Appeal No. 1175/69
dated 23-4-69, followed.
The High Court was consequently justified in interfering with
th~ finding
ret:orded by the District Judge on the question of ·greater hardship and arriving at
its own finding on the basis of the correct principle laid down: by this Court.
But the High Court fell into an error in appreciating the evidence and coming to the conclusion that greater hardship would be causea to respondent No.
I by passing a decree for eviction than by refusing to pass it. There was no
evident:e to support this finding by the High Court. The evidence was entirely
the other way.
[277 C]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2208 of 1972.
(Appeal by Special Leave from the Judgment and Order dated the
3rd Apiil. 1972 of the Gujarat High Court in Civil Revision Application No. 325 of 1970).
R. M. Mehta, S. K. Dholakia and R. C. Bhatia, for the Appellant.
C. S. Rao, for the Respondent.
The Judgmfnt of the Court was delivered by
F
BHAGWATI, J.
This appeal, by special leave, arises out of a suit
filed by the appellant to recover possession of certain premises from
the respondents.
In order to appreciate the contention that has been
raised in the appeal, it is necessary to notice the facts giving rise to the
appeal in some detail.
The appellant is the owner of two bungalows in Navsari, a town
G
situate in South Gujarat.
One bungalow is known by the name of
Truth Bungalow while the other is known by the name of Hill Ilungalow.
The Truth Bungalow consists of only one tenement with a separate room on the ground floor.
It was common ground between the
parties and that appears clearly from the evidence and h•s also been
found by the High Court as well as the lower courts, that this separate
room on the ground floor of the Truth Bungalow was at all material
H
times in the possession of the appellant.
The rest of the Truth Bungalow was, some two and a half to three years prior to the recording of
the evidence, let out to a tenant, but after a period of about one year
and a quarter the tenant surrendered possession and thereafter it was
·- ..
5-L954Sup,.C.L/74 0
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[ 1974] 3 S.C.R.
givn by the appellant to one Dr. 'Bharucha on leave anu licence on
payment of compensation of Rs. 50/- per month.
The appellant in his
evidence could not stale precisely when this leave
and
liccn:.:e was
granted by him.
lfe said that it was given in January 1966 or it n1av
be in January 1967.
We shall, foi the purpose of this appeal, proceed
on th~ basis that it 1,vas given in January 1967, for that would bt: Ji1ore
favourable to the respondent than taking January J 966 as
the time
when ·_it \Vas granted.
Dr. Bharucha was thus in occupation
o[ the
Truth Ilungalow, barring the ground floor i·oon1 in the possession of
the appellant, from January 1967 on leave and licence
from
the
appellant.
The Hill Bungalow consists of two tenanments; one on the ground
lloor and the other on the first floor.
The first floor is occupied by
Suonabai, the 1nother of the appellant since the last several years. Si1c
is an old lady, aged about 82 years at the time of giving evidence but.
as the evidence shows, age docs not seem to have withered a\vuy her
interest in life.
There was some controversy before the lo\·;cr courts
as to whether in respect of the lirst floor occupied by her, Soonobai ,-,,.:;
a tenant or a Jiccncee of the appellant. The lower courts held that she
a tenant, while the High Court took the view that she was• a Jicencee.
We shall presently examine this controversy but one thing may be made
clear at this stage namely, that Soonabai was paying a sum .of Rs. 50/-
pcr month to the appell•nt for the occupation of the first fl<1or 4n.:J receipts in respect of such payments were produced by the appellant. The
ground floor of the Hill Bungalow was let out by the appellant to one
Mahendra Prasad as far back as 1957 at a rent of Rs: 65/- per month.
Mahendra Prasad died in September 1966 leaving him surviving as his
legal representatives his widow the fifth respondent. his son the first
respondent and his daughter the second respondent.
Sometime prior
to the death of Mahendra Prasad, respondents 3 and 4 together with
the members of their respective families had come to reside in the
gtounJ floor premises and after the death of Mahendra Pr,1sad, they
continued to stay With the first respondent.
The second and the fifth
respondents, however, left the ground floor premises and went. away
·front Navsari soon after the death of Mahendra Prasad.
The appellant, by a. notice dated 15th October, 1966, terminated the tenancy of
respondents I, 2 and 5 on the ground that they had unlawfully sub-Jet
the ground floor premises to respondents 3 and 4.
Though the tenancy
in respect of the first floor premises was thus terminated by the appellant, the respondents failed to hand over vacant possession of the
ground floor premises to the appellant and the appellant was accordingly constrained to file regular suit No. 26 of 1967 in the co!lrt of the
Civil Judge, Senior Division, Navsari on 18th January 1967. -The
ground on which possession was souglit by the appellant in the plaint
as originally framed was unwawful sub-letting by respondent> I, 2 and
5 to respondents 3 and 4 which is a ground of eviction under s. 13 (I)-
( e) of the Bombay Rents Hotel and Lodging House Rates (Control)
Act, 1947 (hereinafter referred to as the Bombay Rent Act).
The
appellant was-carrying on hls nrafession as archi.tect
and consu
1ting
engineer in Bombay since 1960 when he retired from Army <ervice.
He lived in a flat in Bombay for which he paid a rent of Rs. 475 /- per
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month,
The principal area of work in the early stages of his professional career was Bombay and South Gujarat but by abodt .tile middle
of 1968 ·his v.ork in Bombay practically dwindled to nil and his professional activities became confined almost exclusively to South
Gujarat. The appellant found that in the circumstances· tbl'r<; was no
point in his continumg to hw in Hombay and pay a hi!lh .rent of
Rs. 475/- per month which was a serious drain on his purse.
The
appellant accordingly decided 10 settle down in Navsari which was his
native place, where his mother was living for the last several years und
from where he would be able to carry on his profession convenie01iy,
economically and with advantage.
Now, the suit filed by the appellant
against the respondents for possession of the ground floor premises was
already pending and the appellant, therefore, with the leave of the
Court, amended the plaint in that suit introducing an additional ground
that the appellant reasonably and bona. fide required the ground floor
premises for his personal use and occupation and was,
therefore,
entitled to recover possession under s. 13 ( 1) (g) of the Bombay Rent
Act.
.
Respondents 2 and 5 did not contest the suit of the appellant as
they were not residing in the ground floor premises and the main
defence was on behaH of 1es11ondents 1, 3 and 4 who denied the allegations made in the plaint and ilisputed the grounds on which possession
was sought to be recovered by the appellant.
The trial court, on consideration of the evidence led on b~half of
the appellant and respond~nts 1, 3 and 4, took the view that, though
respondents 3 and 4 together with the members of their respective
families were residing in the ground floor premises with the first respondent, it was not established by the appellant that they were subtenants of the first respondent and the appelant was, therefore, not
entitled to recover·possession of the ground· floor premises on the
ground of unlawful sub-letting.
However, so far as the ground of
reasonable and bona fide requirement for personal use and occupation
was concerned, the trial court held that the evidence Cil record was
sufficient to establish that the appellant reasonably and bonu fide
required the ground floor premises for personal use and occupation and
it\ was 11lso clear from the evidence that greater hardship wuuld not be
caμsed to respondents 1, 2 and 5 by passing a decree for eviction than
wliat would be caused to the appelant by refusing to pass it.
The trial
cutlet accordingly passed a d.ecree for eviction against the re;pondcnts.
Respondents 1 to 4 being aggrieved by the decree for eviction preferred
an appeal in the District C~urt, Bulsar.
The District Judge, who
heard the appeal, found himself in complete agreement with the conclusions reached by the trial court and he accordingly confirme<J t.he
decree for eviction and dismissed the apneal.
This le~ to tlie filing of
a revision application before the High Court under s. 29. <u'i-s. (3) of
the Bombay Rent Act. The High .Court in revision interfered with
the findings of the District Judge on both the questions, nnmcly, reasonable and bona fide requirement for personal use anrl occuoathin as als.o
greater hardship and held. on an aoprcciation of the evidc"rc. that the
appi;llant had failed to es'.abli<h th~t he reasonablv anrl hn''" ~de
required the ground floor premises for hts own use and occupation and
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[ 19741 3 S.C.R.
in any event the evidence showed that greater hardship would he caused
to the first respondent by passing a decree for eviction than by refusing
to pass it.
The High Court, accordingly, set aside the decree for eviction and dismissed the suit of the appellant.
Hence the present appeal
by special leave obtained from this Court.
.
The main ground on which the appellant attacked the judgment of
the High Court was that in reversing the findings of the District Judge
on the question of reasonable and bona fide requirement for personal
use anJ occupation as also on the question of greater hardship, the
High Court exceeded its jurisdiction under s. 29, subs. (3), since both
these findings were findings of fact which did not suffer from any mistake of law and the jurisdiction of the High Court under that section
was limited only to examining whether the decision of the District
Judge was "according to law". The High Court, it was contended,
could not interfere under s. 29, sub-s .. (3) with findings of fact recorded by the District Judge unless it could be shown that they disc!OBed an
error of law in arriving at them, which according to the appellant, was
not the position in the present case.
This contention raises a question
as to the true scope and ambit of the revisional jurisdiction of the Higl)
Court under s. 29, sub-s. (3). Fortunately this question is not devoid
of authority. There are sections· in other rent control legislations
couched in identical language and they have received judicial interpretation at ti)e hands of this Court.
The first decision to which we
may refer in this connection is Hari Shankar v. Rao Girdhllrilal Chaudlwry('). The secfion which fell for consideration in this case was
s. 35, sub-s. (!) of the Delhi and Ajmet Rent Control Act, 1952 which
was in the same terms as s. 29, sub-s. (3) of our Act.
Section 34 of
the Delhi and Ajmer Rent Control Act, 1952 corresponded to our
sub·ss. (I) and (2) of s. 29.
Explaining the scops of s. 35, snb-s. (I)
in the context of s. 34, Hidayatullah, J., (as he then was) said on behalf of the majority of the Court :
"Section 35 is undoubtedly worded in general terms,
but it does not create right to have the case reheard, as was
supposed by the learned Judge.
Section 35 follows s. 34,
where a right of appeal is conferred; but the second subsection of that section says that no second appeal shall
lie. . . . .
The phrase "according to Iilw" refers to the decision as a w'1ole, and is not to be equated to errors of law or
of fact simpliciter. It refers to the overall decision, which
must be accbrding to law which it would not be, if there is a
miscarriage of justice due to a mistake of law. The section
is thus framed to confer larger powers than the power to correct error of jurisdiction to which s. 115 is limited. But it must
not be overlooked that the section-in spite of its apparent
width of language where it confers a power on the High Court
to pass such order as the High Court might think fit-is controlled by the openine words. where it says that tho High
Court may send for the record of the case to satisfy itself that
the decision is "according to kl\\···.
It s!an;~s to rca;;0n that
(l) [1962] Supp. I S. C. R. 933.
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if It was considered necessary that there should be a rehearing, a right of appeal would be a more appropriate remedy,
but the Act says that there is to be no further appeal."
Then the learned Judge quoted in extenso the following observations
of Beaumont, C.J., in Bell & Co. Ltd. v. Waman Hemrai( 1) in relation
to s. 25 of the Provincial Small Causes Courts Act which was almost in
the same terms ass. 35, sub-section (1) :
"The object of s. 25 is to enable the High Court to see
that there has been no miscarriage of justice, that the decision was given according to law.
The section does not enumerate the cases in which the Court may interfere in revision,
as does s. 115 of the Code of Civil Procedure, and I certainly do not propose to attempt an exbasutive definition of
the circumstances which may jusiify such interference; but
instances which readily occur to the mind .are cases in which
the Court which made .the order had no jurisdiction or in
which the Court has based its decision on evidence which
should not have been admitted, or cases where the unsuccessful party has not been given a burden of proof has been heard,
or the burden of proof has been placed on the wrong shoulders.
Whe1ever the court comes to the conclusion that the
unsuccessful party has not had a proper trial according to
Jaw, then the court can interfere.
But, in my opinion, the
Court ought not to interfere merely because it thinks that possibly the Judge who heard the case may have arrived at a
conclusion which the High Court would not have arrived at."
and recorded that these observations had the full concurrence of the
majority for whom he was speaking. This view was reaftirmed by
Subba Rao, J., (as· he then was) speaking on behalf of this Court in
Puranchand v. Moti/al('), where the same section 35, sub-s.
(1) of
the Delhi and Ajmer Rent Control Act again came up for consideration.
The scheme and language of s. 29, sub-s. (3) of our Act being
identical with that of s. 35, sub-s. (1) of the Delhi and Ajmer Rent
Control Act, 1952, the same view must also govern the interpretation
of s. 29, sub-s. (3) of our Act. The High Court can, therefore,
interfere with the decision of ·the lower court under s. 29, sub-s. (3).
only if there is . miscarriage of justice due to a mistake of law.
The
High Court ca~not reassess the value of the evidence and interfere with
a finding oi fact merely because it thinks that the appreciation of the
evidence by the lower court is wrong and the lower court should have
reached a different conclusion of fact from what it did : in other W•)rds,
the High Court cannot reappreciate the evidence and substitute its own
conclusions of fact in place of those reached by the lower court. Bearing in mind this limited scope and ambit of the revisional power of the
High Court .under s. 29, sub·s (3) we may now proceed to consider
whether the High Court acted within its jurisdiction in setting aside the
decision of the District Judge.
(1) [1938] 40 ,!lorn. L. R. 125
(2) [19631 Supp. 2 S. C. R. 906.
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SUPREME COURT REPORTS
[ 1974 I 3 S.C.R.
Now the decision of the District Judge was based on two findings
recorded by him in favour of the appellant.
One was that the appellant reasonably and bonti fide required the ground tloor premises for
his own use and occupation, and the other was that greater hardship
would be caused to the first respondent by passing a decree. for eviction
than what would be caused to the appellant by refusing to pass it. Both
these findings were interefered with by the High Cotirt and the
que~
tion is whether the High Court was within its power in doing so. Taking
up first for consideration the finding that the appellant reasonably and
bona fide required the ground floor premises for his own use and occupation, it may be pointed out straight away that this finding was clearly
one of fact.
The District Judge did not misdirect himself in regard to
the true meaning of the word 'requires' in s. 13(1) (gy and iliterpreted
it correctly to mean that there must be an element of need before a
landlord 'can be said to 'require' premises for bis o\vn use and
occupation. It is not enough that the landlord should m~rely desire
to use and occupy the premises.
What is necessary is that' he should
need them for his own use and occupation.
This was the llorrect test
applied by the District Judge to the facts found by him. lf he had
applied a wrong test on a misconstruction of the word 'requires', the
finding recorded by him would have been vitiated by an errQr of law.
But the correct test having been applied, the finding of the District
Jugc that the appellant reasonably and bona {Uk requife4 the ground
floor premises for his own use and occupation was unquestionably a
finding of fact and it was not competent to the High Court, in the
exercise of its revisional power under s. 29, sub-s. (3), to interfere'
with this finding by reappreciating the evidence.
But, though such
an exercise was not permissible, the High Court embarked on a
reappraisal of the evidence and iaking th.e view that the finding of fact
reached by the District Judge was not correct, substlluttd its_ own finding of fact in place of ihat reached by the Distric:t J'udge.
That was
clearly outside ·the scope and ambit of ihe revisional power of the High
Court under s. 29, sub-s. (3).
But even apart from acting outside the limits of its rtvisional power
under s. 29, subs. (3), the High Court '!)'as, in our opinion, OD the
evidence on record, in error in reversing the finding of fact recorded
by the District Judge.
So fat as the first tloor of the Hill ·Bungalow
was concerned it was admittedly in the possession of Soonabai, ihe
mother of the appellent.
The District Judge held. agreoing with the
view taken by the trial court, that Soi>nabai was a tenant of the appellant paying a relit of Rs. SOI- per month.
The High Court observed
that this view taken by the District Judge was contrary to the evidence
on record and relied for this purpose on a statement made by the appellant in cross examination that what his mother paid was compensation
and not rent. It is true that this statement was made by ihe appellant
in cross examination, but DO undue reliance can be placed on •uch
statement made by a lay man who WOl,\ld not ordinanly be expected to
recognize the fine distinction between compensation and rent, which
has continually baffled even lawyers and judges. when we find that there
was at least one rent receipt produced by Soonabai which clearly
showed that what was being paid by her was rent and not compensation.
There was here documentary evidence in ihe
s\lape of rent
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receipt •s against oral imperfectly understood admission made by the
0
appellant, which supported the view taken by the Oistrict j uag,: that
Soonabai was a tenant and not a licencee uf the appellant and the High
Court was in error in upsetting this view taken by the Dhi..rict Judge.
Now, if Soonabai was a tenant of the appellant, she could tell the
.appellant rhar she would continue to live on the first floor alone as 'he
had been doing and would not allow the appellant together with his
wife and children to live with her on a permanern basis.
That was
the mode of life to which Soonabai was accustomed for tho Ja3t several years and even if it were possible tor the appellant to impose himself
together with his wife and children on her on the first floor, he xightly. ·
and legitimately did not choose to do so and that could not Ix: regarded
as unreasonable on his part.
The High Court then proceeded to c<.,nsider the availability of the Truth Bungalow and observed that since
the Truth Bungalow was given on leave and licence to Dr. Bharucha, it
was in the possession of the appellant and largely on the basis of this
view the High Court came to the conclusion that the requirement of
the appellant for the ground floor premises was not reasonable and
bonafide. Now, it is true that when premises are given on leave and
licence, the licensor continues, from a juridical point of view, to be in
possession of the premises and tl;le licencee is merely given occupation, and therefore, strictly speaking the High Court was right in observing that the Truth Bungalow, which was given on leave and licence
to Dr. Bharucba, was in the possession of the appellant. But for the
purpose of determining whether the requirement of the appellant for
the ground floor pren1ises
was .reasonable and
bonafid~. what
is
necessary to be considered is not whether the appellant was juridically
in possession of the Truth Bungalow, but whether tb Truth Bungalow was available to the appellant for occupation so that he could
not be said .to need the ground floor premises. If the Truth Bungalow
was in occupation of Dr. Bharucha on leave and 1iccnc·~, it
was
obviously not available to the appellant for occupation and it could
not
be
taken
into acconnt
for negativing
the need of
the
appellant for the ground floor
premises. The aopellant could not
obtain for himself the occupation of the Truth Bilngalow unless he
terminated the leave and licence of Dr. Bharchau and compelled him
to vacate the occupation of the Truth Bungalow. That might involve
a long litigation with Dr. Bharucha. As against that, a suit for eviction was already pending against the respondents in respect of the
ground floor premises and it would certainly be more reasonable to
pursue that litigation rather than to start a new one. Besides,
the
appellant chose to have possession of the ground floor premises because
he wanted to be near his mother who was living on the first floor. It
is tmo that one room on the ground floor of Truth Bungalow was in
possession of the appellant, but that could hardlv ho sufficient for
his accommodation.
The High Court also observed that one room
on the ground floor of the Hill Bungalow _was in th~ possession of
the appellant, but this observation seems to be contrarx to the evidence on record. There was only one garage on the ground floor of
the Hill Bungalow and that garage was, according ·to the appellant,
in the joint possession of the appellant and the fust
respondent.
276
SUPREME COURT REPORTS
[ 1974] 3 S,C,R.
while according to the respondents, it was exclusively in the possession of the first respondent. It was nobody's case that this garage was
in the exclusive possession of the appellant. Moreover, it was only
a garage and not. a room and it could not be availed by the appellant
for his occupation. It will, therefore, be seen that the evidence on record was sufficient to show that the requirement of the ground floor
premises by the appellant was reasonable and bonafide and the High
Court was in error ill taking a contrary view and disturbing the finding
recorded by the District Judge.
·
So far as the finding on the question of greater hardship is concerned, the District Judge decided against the respondents on the view
that as soon as the landlord establishes that he reasonably and honafide requires the premises for his own use and occupation. the burden
of proving that greater hardship .wouJd be caused by passing a decree
for eviction than by refusing to pass it is on the tenant and if the tenant
fails to discharge this burden by producing proper evidence, a decree
for eviction must go against him .. This view in regard to the hurden of
proof, no doubt, prevailed at one time in various High Courts on the
basis of the decision of the Court of Appeal in England in Kelly v.
Goodwin(') but it can no longer be regarded as correct after the decision of this
Court in
M/s. Central
Tobacco
Co.
v.
Chandra
Prakash(').
This Court speaking through Mitter, J., pointed out in
that case, while discussing s. 21 ( 4) of the Mysore Rent Control Act;
1961, and what was said there must apply equally in
relation
to
s. 13(2) of the Bombay Rent Act, which is in identical terms:-
"We do not find ourselves able to accept the broad proposition that as soon as the landlord establishes his need for
additional accommodation he is relieved of all further obligation under s. 21 sub-s. ( 4) and that once the landlord's
need is accepted by the court all further evidence must be
adduced by the tenant if he claims protection under the Act.
Each party must adduce evidence to show what hardship
would be caused to him by the granting or refusal of the decree
and it will be for the court to determine whether the suffering of the tenant, in case a decree was made, would be rnOrc
than that of the landlord by its refusal.
The whole object of the Act is to provide for the control
of rents and evictions, for the leasing of buildings etc. and
s. 21 specifically enumerates the grounds which alone will
entitle a landlord to evict his tenant. Cl. (h) of s. 21 contains one of such grounds, namely, that the premises are
reasonably and bonafide required by the landlord for occupation by himself. The onus of proof of this is certainly on
the landlord. We see no sufficient reason for holding that once
that onus is discharged by the landlord it shifts to the tenants
making it obligatory on him to show that greater hardship
(I) [19471 All Eng. Report 810.
(2) Civil Appeal 1175 of 1969, date 23-4-1969.
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277
would be caused to him by passing the decree than by refusing to pass it. In our opinion both sides must adduce all
relevant evidence before the court; the landlord must show
that other reasonable accommodation was not available to
him and the tenant must also adduce evidence to that effect.
It is only after shifting such evide,nce that the court must form
its conclusion on consideration of all the circumstances of the
of the case as to whether greater hardship would be caused by
passing. the decree than by refusing to pass it."
It is,
therefore, clear that
the District Judge placed the burden
of proof wrongly on the respondents and the finding of fact arrived at
by him on the question of greater hardship was vitiated by a mistake of
law.
The High Court was consequently justified in interfering with
the finding recorded by the District Judge and arriving at its
own
finding on the basis of the correct principle laid down by this Court.
But the High Court, in our opinion, fell into an error in appreciating
the evidence and coming to the conclusion that greater hardship would
be caused to the first respondent by passing a decree for eviction than
by refusing to pass it. There was no evidence at all to support this
finding reached by the High Court. The evidence was entirely the
other way. The appellant stated in his evidence that he would suffer
considerable harship both financial and in the way of his profession if
he was denied possession of the ground floor premises. This was true
because the entire field of work of the appellant was now confined to
South Gujarat and it was obvious that he would be able to. carry on
his profession conveniently, economically and with advantage, if he
could live in Navsari which is situate in South Gujarat. Moreover,
in
view of the shift in his field of work from Bombay to South Gujarat,
it was unnecesary for the appellant to continue to live in Bombay
and pay a high rent of Rs. 475/- per month _which was a serious drain
on his purse. There can, therefore, be no doubt that if a decre for eviction were not passed in his favour, the appellant would suffer real hardship. Now, as against this evidence on the part of the appellant, no
evidence at all was led on behalf of the respondents to show that the
!st respondent would suffer any hardship if a decree for eviction were
passed against him. The evidence, thus, was only in one direction and
it unquestionably established that greater hardship would not be caused
to the first respondent by passing a decree
for eviction than what
would be caused to the appellant by refusing to pass it. The High
Court was, therefore, clearly wrong in reversing this finding of fact
recorded by the District Judge.
It is, therefore, clear that the High Court was in error in setting
aside the decree for eviction passed against the respondents. We would
278
SUPREME COURT REPORTS
[ 19741 3 S.C.R.
accordingly allow th·o appeal. set aside the judgment of the High Court
and restore the decree- for eviction pass~d against the respondents. V./e
may, however, point out that in the course of the hearing before us
the learned counsel on behalf of the appellant made an offer that the
appellant \Vould b.:: ,.,.-;Hing io ,£:i\\~ one roon1 on the ground floor of the
Truth .Bungalo\v which is in his possession to the first respondent on
a rent of Rs. 15 - per llll'llth. ii the first respondent accepts this offer
within a. per~'Jd of thre::: n1::'!nti1s from today. We, therefore. dir~ct that
if the first respondent expresses his willingness to take this roo:n on
rent from the appellant at the rate of Rs. 15 per month within a period
of three months from today, the appellant shall let it out to the 1st
respondent at the rent of R,. I Sf- per month. There will be no order
as to costs all throughout.
S.B.W.
Appeal allowed.
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