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Bombay High CourtIndian Cases

Bapurao Rajaram Waikar vs Babulal Mulchand Shah on 2 August 1973

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Bombay High Court

Bapurao Rajaram Waikar vs Babulal Mulchand Shah on 2 August, 1973
Equivalent citations: (1974)76BOMLR246


Bhole, J.

1. The petitioner is a tenant of a shop in which he is doing the business of Tabla repairing in Shukrawar Peth, Poona. He is doing this business for a period of thirty years in that locality and paying a rent of Us. 20 p.m. The respondent needed the premises for expanding his business and for opening a new shop and therefore he served a notice on him. The notice was on two grounds. The first ground was of the iona fide and reasonable requirements and the second ground was of arrears of rent. The petitioner within one month applied for the fixing up of the standard rent. The landlord filed thereafter a suit with a prayer that the petitioner should be ejected from the shop, on the ground that he reasonably and bona fide required the premises and also on the ground that the petitioner was in arrears of rent for more than six months. The petitioner resisted the claim of the landlord and stated that he is not in arrears of rent at all; that when he sent the rent to the landlord by money order he refused to accept the same and that the landlord’s requirement of the premises as bona fide and reasonably for occupation is false.

2. The learned Judge of the Small Causes Court at Poona who heard the case framed a number of issues and found that the petitioner was not in arrears of rent at all. He also found that the landlord was not able to establish that he required the suit premises reasonably and bona fide for his own use and occupation. According to him, even if he needed the suit premises, greater hardship would be caused to the petitioner than to the landlord. Accordingly, therefore, he dismissed the landlord’s suit for possession. That decree was challenged and the learned District Judge disagreed with the view of the trial Court. According to him the landlord did require the suit premises reasonably and bona fide and that he would suffer more hardship if a decree is not passed in his favour. The other ground of the arrears of rent was not before him. The learned District Judge after answering in affirmative those issues was however of the view that there would be difficulties for the petitioner to obtain an alternative accommodation, that his hardship would however be mitigated by giving him reasonable time to find out another suitable accommodation; he, therefore, granted three months’ time and asked him to vacate after three months. The trial Court’s decree was therefore modified and he granted possession to the landlord. This order is now challenged here by the petitioner.

3. The only point that arises here for consideration is whether the decree passed by the learned District Judge is according’ to law. Now the finding on the issue of reasonable and bona fide requirement is a point of law and fact. Under Section 13 the landlord shall be entitled to recover the possession of the premises if the Court is satisfied that the premises are reasonably and bona fide required by the landlord for occupation by himself or by any person for whose benefit the premises are held. It is also provided under Section 13(2) that no decree for ejection shall be passed on the ground specified in Clause (g) of Sub-section (1) if the Court is satisfied that having regard to all the circumstances of the case including the question whether other reasonable accommodation is available for the landlord or the tenant greater hardship would be caused by passing the decree than by rejecting. Now therefore the point that is important here is whether the learned District Judge has erred in law in coming to the conclusion that the premises are required reasonably and bona fide by the landlord. The case of the landlord is that they have a joint family and that they have business of grocery shops. They have two grocery shops, one of wholesale and one of the retail. About Rs. 600 per day is the turnover of one of the shops and that income, according to the landlord, is not sufficient and that, therefore, they want one more shop to start and it will be run by his son in the suit shop. Admittedly, the landlords are carrying on nicely their business in their two shops. Both the shops are in business locality. There is a turnover of about Rs. 600 in the wholesale shop and the turnover in the retail shop must be equally good. He must, therefore, be getting a very decent profit every month and ordinarily that would be more than sufficient; but he wants to expand his business and for that purpose he needs the suit shop. It would not be difficult for him to expand the business in the two shops where his business is. Is it really necessary for him to have a third shop for expanding sale ? The reason given by both father and son are at variance. The landlord says that he wants to have a new shop for his son Chandrakant and therefore he wants that shop. But Chandrakant says that because one of their shops is insufficient and because he cannot carry on with his brother, therefore he wants to start a new shop. This version of Chandrakant is therefore different from that of his father who says that he wants to start a new business for his son Chandrakant. Even this story is given much later and that too during the course of evidence. All the circumstances, therefore, show that the landlord wants to have a new shop by adding a third shop to their business. The learned advocate for the petitioner however says that the reasons given by the landlord are false, and that therefore his requirement is not bona fide. The learned advocate says that he has been saying that the petitioner is in arrears of rent and that he in fact is not in arrears of rent and that both the Courts have also held so and the landlord therefore, he says, gives a false reason. It may be that the landlord thinks that it would be in his interest to start a new shop in the new premises. If therefore in his own way he needs it, it cannot be said that his needs are not bona fide to that extent: therefore his requirement may be bona fide. But when he says that his needs are reasonable, that is not so. The learned District Judge however says that the landlord has a family of eleven members and that the prices are soaring high and that therefore the cost of living is also going high and that his profits in two shops despite a big turnover cannot be said to be adequate and that he needs a better living and that therefore their demand is reasonable. I think it is to the contrary. The nature of the business in the present two shops, the business locality where they are situated, the size of their business, the actual turnover in both the wholesale shop as well as the retail shop all show that the business is very good and the profits high; inspite of this, if he wants the suit shop, his requirement is far from reasonable. It should be so in all circumstances. It is unreasonable. It is so when he wants to eject his tenant who is there for the last thirty years and who is earning his bread there. If he wants to expand the business he can do so in his present two shops. If he wants more profit he can also do so in the two shops. I do not therefore think that the inference drawn by the learned District Judge and the reasons given by him are based on proved facts. They are his conjectures. It is, therefore, wrong in law.

4. The next question is about the balance of hardship or convenience. Now, for the purpose of coming to a conclusion on this question on the basis of comparative hardship of the parties, we have to enumerate the items of hardships and their degrees on each side and then see who suffers more hardship. We will also have to evaluate the items of hardship on each of the party. It is only after this that we have to draw the inference from the specified facts established. Let us see how the hardships are on each of the party. The learned District Judge is aware that the petitioner is having his business in the suit premises for the last thirty years but, according to him, he does not prepare new tablas but carries on his business only of repairing the tablas. The petitioner does show that he purchases raw material for his business and this means that he must be doing so for preparing new tablas. The learned District Judge also says that he did not need the shop in the business locality; his next reason is that the tabla business is such that the comparative demand is less. After taking into consideration the monthly rent of Rs. 125 which the petitioner gets from part of his house, he says that he does not make any grievance that he would not get any suitable accommodation for this avocation elsewhere. It is for these reasons that he thinks that the petitioner can now close his thirty years’ business in that shop and go and start doing it in a new locality or in his own house. On the other hand, according to him the landlord being the owner of the premises should get possession because it is in business locality and if that is refused he will not get suitable place in a business locality. I do not think that the inferences drawn by the learned District Judge are proper; they are wrong in law on the basis of the established facts.

5. What are facts? The landlord wants the suit premises for starting a new shop although he has already two flourishing shops in business locality. The petitioner would lose his only business of earning his bread which he is running in the suit premises for the last thirty years. He will have no business elsewhere because he must have already created goodwill for his business in the shop. The petitioner certainly will not in these days be in a position to get any suitable accommodation for this business in a city like Poona. He is a poor businessman as compared to the turnover and the’ income of the landlord from his two shops. Now therefore can one properly draw an inference from these established facts that the hardship would be more to the landlord than to the petitioner if possession is not granted to the landlord? This is a case where the question is whether the petitioner should close his shop and go home and that is what is stated by the learned District Judge or whether the landlord having two flourishing business shops in business locality should be allowed to start a third shop. Surely in such a case the hardship could not be of the landlord. But Mr. Abhyankar, the learned advocate for the landlord, contends here that the learned District Judge has given all the grounds on the basis of the evidence and ordinarily this Court under Article 227 should not interfere with the findings of the appellate Court. That is true; but the issue whether the requirement is reasonable and bona fide and the issue who will have more hardship, are issues where question of law and of facts are raised. The two issues are not purely on facts but are on mixed questions of law as well as of facts. Therefore, if right inferences are not drawn on established facts then the inferences will be wrong in law. That is what has happened in this ease. I have, therefore, in this case no other alternative but to interfere with the order passed by the District Judge.

6. But Mr. Abhyankar after inviting my attention to the case of Vinayak Trimbak v. Tarachand says that the question of alternative accommodation also should be considered under Section 13(1)(g) of the Bombay Bent Act. He says that he could do the repairing of tablas at his house. The learned District Judge is also of the view that he should go home after closing his shop and start his business at his residence. This cannot be done. Can he afford to lose his thirty years’ business at the suit shop in a business locality and start-all over again at his house. But there is hardly any evidence to establish that he can start earning his bread by repairing tablas at home and that there is also space for him there. Will it not be, even if he is able to do so, against the provisions of Section 25 of the Bombay Rent Act? I think we will be landing him this way in an impossible situation; he will suffer all the hardships whereas the landlord will not. Therefore, this petition will have to be allowed and the decree passed by the learned District Judge will have to be set aside. The decree of the trial Court is restored. Rule is made absolute with costs.