Bombay High Court

Smt. Shalini Wamanrao Korade And ... vs Shri Shankar Ninguja Solanki on 21 August, 2015

Bench: M.S. Sonak

    skc                                                              JUDGMENT-WP-6991-00



               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      CIVIL APPELLATE JURISDICTION
                    WRIT PETITION NO. 6991 OF 2000




                                                                              
          Smt. Shalini Wamanrao Korade & Ors.          ..      Petitioners




                                                     
                vs.
          Shankar Ningusa Solanki                      ..      Respondent

          Mr. Uday P. Warunjikar with Mr. G. H. Keluskar and Mr. Devidas H.




                                                    
          Keluskar for Petitioners.
          Mr. A. M. Kulkarni with Mr. Sarthak Diwan for Respondent.

                                   CORAM : M. S. SONAK, J.

Date of Reserving the Judgment : 09 July 2015

Date of Pronouncing the Judgment : 21 August 2015

JUDGMENT :-

1] This petition is directed against the judgments and decrees

dated 28 August 1991 and 31 January 2000 made by the Trial Court

and the Appeal Court dismissing Regular Civil Suit No. 820 of 1980

instituted by the petitioners (landlords) for recovery of possession of

the suit premises from the respondent (tenant).

2] From the year 1924, the premises ad-measuring 103.05 sq.

meters, with open space at the rear side, City Survey No.173 in 'C'

Ward, Kolhapur (suit premises) have been let out to the tenant for

commercial user. The present landlords, who purchased the suit

premises in the year 1971 or thereabouts, instituted Regular Civil

Suit No. 820 of 1980 before the Civil Judge, Junior Division,

Kolhapur (Trial Court) seeking recovery of possession on the

grounds of non-user, erection of permanent structure without

skc JUDGMENT-WP-6991-00

consent and reasonable and bona fide requirement. The suit was

dismissed on 28 August 1991 and the Additional District Judge,

Kolhapur (Appeal Court) dismissed the appeal against the same on

31 January 2000. Hence, the present petition by the landlords.

3] Although the recovery of possession was applied for on three

distinct grounds, Mr. Warunjikar, learned counsel for the landlords

has chosen to press the ground of reasonable and bona fide

requirement alone, in the present petition. Even otherwise, the

material on record hardly warrants interference with the concurrent

findings of fact on the aspect of non-user or erection of permanent

structure without consent.

4] On the aspect of eviction on the ground of reasonable and

bona fide requirement, Mr. Warujinkar submitted that the two Courts

have failed to apply the correct tests, ignored relevant material and

relied upon irrelevant and extraneous material.

5] Mr. A.M. Kulkarni, learned counsel for the tenant, however,

submitted that the concurrent findings of fact even on the aspect of

reasonable and bona fide requirement are amply borne from the

material on record. Mr. Kulkarni pointed out that in fact plaintiff No.2,

the sole deponent on behalf of the plaintiffs, has in terms, admitted

skc JUDGMENT-WP-6991-00

in the course of cross-examination that the plaintiffs are not in need

to get the possession of the suit premises. The landlords, apart from

the suit premises, own and possess several other premises in

Kolhapur. The plaintiff No.2, the sole witnesses examined on behalf

of the landlords, is settled in Belgaum and carries out several

businesses therefrom. Apart from, the suit premises, the tenant has

no other premises to carry on the business of Bar and Restaurant.

For all these reasons, Mr. Kulkarni submitted that the ground of

reasonable and bona fide requirement has not been made out by

the landlords. In any case, Mr. Kulkarni submitted that the issue of

comparative hardship shall have to be answered in favour of the

tenant.

6] Rival contentions now fall for determination.

7] In the exercise of jurisdiction under Article 227 of the

Constitution of India, this Court is not expected to re-appreciate the

material on record, as if it were exercising appellate jurisdiction. The

limited reference to the material on record is for the purposes of

assessing the contention regards exclusion of relevant material and

irrelevant or extraneous material forming the basis of decision

making process. The contention that the two Courts have applied

incorrect tests or adopted incorrect principles, shall have to be

skc JUDGMENT-WP-6991-00

assessed by reference to reasoning in the impugned judgments and

decrees. In any case, the matter shall have to be assessed, keeping

in mind the limited jurisdictional parameters under Article 227 of the

Constitution of India.

8] The two Courts have not independently, assessed the twin

aspects of 'reasonable and bona fide requirement' and 'comparative

hardship'. The consideration of the two aspects is common. This is

improper. Because, in the first place, the Courts are required to

consider whether on the basis of the material on record, the

landlords have made out a case for recovery of possession on the

ground of reasonable and bona fide requirement. Even, if the

Courts come to the conclusion that the landlords have made out

such a case, there is no question of straightaway making a decree

for eviction. The Courts are, thereafter, required to consider the

aspect of comparative hardship as also the aspect whether a

decree of partial eviction will suffice the reasonable and bona fide

requirement of the landlords. These aspects are distinct and are

required to be independently assessed.

9] On the aspect of reasonable and bona fide requirement, the

two Courts have held against the landlords, primarily on the

following grounds :

skc JUDGMENT-WP-6991-00

(A) That the landlords have not established that they

have experience in the business of sale of clothes;

(B) The landlords' case that the suit premises are

located in market area, which is abound with shops fro

sale of clothes, is not correct;

business premises, through which they operate sweet

mart. The plaintiff No.2 and his sons have established

business for sale of clothes in Belguam;

(D) Neither plaintiff No.1 nor his sons have stepped into

witness box in support of their plea for reasonable and

bona fide requirement;

(E) The plaintiff No.2, the sole witness on behalf of the

landlords, has sold the portion of his ancestral property in

Kolhapur to plaintiff No.1 for Rs.45,000/-. This suggest that

neither plaintiff No.2 nor his sons had any interest in

shifting the business from Belgaum to Kolhapur;

skc JUDGMENT-WP-6991-00

(F) The tenant's family comprised at least '14' members

and apart from the suit premises, the tenant has no other

premises through which he undertake the business of Bar

and Restaurant ; and

(G) The tenant, who has acquired substantial goodwill in

the area, would suffer greater hardship, if evicted.

10]

The circumstances that the landlords have no much

experience in the business of sale of clothes or that the area in

which the suit premises are located is not abound by several other

premises engaged in sale of clothes, are really irrelevant

circumstances, in the context of determining whether the landlords

requirement is reasonable and bona fide. That apart, there is

overwhelming material on record, which suggest that the landlords

are not novices when it comes to the business of sale of clothes.

Such overwhelming material has been completely ignored by the

two Courts. This is accordingly, a case where relevant and vital

material has been ignored and irrelevant or extraneous material

given undue weightage.

11] The brother and the constituted Attorney of the tenant, sole

deponent on behalf of the tenant had admitted that the landlords are

skc JUDGMENT-WP-6991-00

from Namdeo Shimpi community, which is traditionally involved in

vocation of tailoring and the business of sale of clothes. That apart,

it is the case of the tenant that the plaintiff No.2 Vittal Korade has

established business of sale of clothes at Belgaum. This material is

sufficient to establish experience. However, what is more is that

there is no requirement under the law that the landlord establishes

that he has past experience in the business, which he proposes to

set up through the suit premises, for the recovery of possession on

the grounds of reasonable and bona fide requirement. The Apex

Court in the case of Dattatraya Laxman Kamble vs. Abdul Rasul

Moulali Kotkunde & Anr.1 has held that denial of decree on the

grounds of reasonable and bona fide requirement to a landlord on

the ground of such landlord seeks to venture in a business field

without acquiring past experience is fallacious and un-pragmatic. In

paragraphs 11, 12 and 13, the Apex Court has observed thus :

11. Learned single judge opted to interfere with the fact finding only on the premise that in his opinion "if the landlord is really in a position to commence the business one of the ingredients that has to be established by the landlord is that he possesses the know-how necessary for

doing the business.

12. If a person wants to start new business of his own it may be to his own advantage if he acquires experience in that line. But to say that any venture of a person in the business field without acquiring past experience reflects lack of his bona fides is a fallacious and un-pragmatic approach. Many a business have flourished in this country by leaps and bounds which were started by novice in the field; and many other business ventures have gone hay 1 1992 (2) Mh. L. J. 793

skc JUDGMENT-WP-6991-00

wire despite vast experience to the credit of the propounders. The opinion of the learned single judge that acquisition of sufficient know-how is a pre-condition for

even proposing to start any business, if gains approval as a proposition of law, is likely to shatter the initiative of

young talents and deter new entrepreneurs from entering any field of business or commercial activity. Experience can be earned even while the business is in progress. It is too pedantic a norm to be formulated that 'no experience

no venture".

13. That apart, appellant is not a total novice in the field of dealings in electrical equipment. The fact that the discipline in his academic specialization was Electrical Engineering is quite indicative of some knowledge he has

in the subject, though a business in such commodities may have different phases. Learned single judge seems to

have written him off as a person totally unfamiliar with any transaction in electrical goods. Such an angle is not a charitable view towards the landlord. At any rate there

may be different views for different people on how to start a business. The High Court has committed jurisdictional error in upsetting a fact finding merely on the individual view held by the learned judge about business venture. We have no doubt that reversal of the appellate court

order on the above ground is unsupportable in law and hence is liable to be interfered with. We do so."

12] Similarly, the circumstance that in and around the suit

premises, there are no shops carrying on business of sale of

clothes, is again not a reason to deny a decree on ground of

reasonable and bona fide requirement. In fact, there is

overwhelming the material on record which establishes that the suit

premises are located in market area which is in fact abound by

several shops and establishment dealing in the business of sale of

clothes. However, even if it were not so, as long as it is not

established that there was any legal bar for undertaking the

skc JUDGMENT-WP-6991-00

business of this nature, the circumstance that there were no shops

or establishments engaged in the sale of clothes, cannot reflect

upon the reasonableness or bona fides of the landlords'

requirement.

13] The plaintiff No. 2-Vittal Korade in his examination in chief

has deposed that suit premises are situated on Bhausingji Road in

the heart of Kolhapur and shops which sell clothes are situated on

both sides of the road. Besides, the tenant Vasant in his deposition

has admitted that opposite the suit premises there are two-three

garment shops. Further, adjacent to the suit premises towards the

South there are shops of Korde and Korde Textile shop, wholesale

cloth shops of Ratilal Genaji Rathod and Textile shop of Kalyankar

and Co. and Mukund Vana Velhal. After all these admissions, the

tenant has denied the suggestion that the suit premises is

surrounded by maximum number of textile shops or that Bhausingji

Road is not famous for textile and textile products. All these relevant

and vital material has been completely ignored by the two Courts.

Based upon this material, it is clear that in and around the suit

premises there are several shops and establishments dealing with

clothes and textiles. Even if this were not to be the position, the

decree on the ground of reasonable and bona fide requirement

could not have been denied on the ground that there are no textile

skc JUDGMENT-WP-6991-00

and cloth shops in the proximity of the suit premises. Such a

circumstance is clearly irrelevant, in the context of determining

reasonable and bona fide requirement.

14] The circumstance that the plaintiff No.1 and his sons have

alternate premises through which they run Sweet Marts or that the

plaintiff No.2 and his sons have alternate premises in Belgaum

through which they carry out business of sale of clothes, is also not

sufficient to deny a decree of eviction on the ground of reasonable

and bona fide requirement. On the aspect of reasonable and bona

fide requirement, the landlords have pleaded that the suit premises

are located at Bhausingji Road, which is abound by several clothes

and textile shops dealing in wholesale, retail and readymade

garments. The landlords have pleaded that such business is carried

on by their family for generations. However, on account of paucity of

space, Deepak, the son of plaintiff No.1 is required to carry out

alternate business through rented premises. Similarly, Rajendra, the

second son of plaintiff No.1 is also interested in commencing the

business of sale of clothes. The landlords have further pleaded that

the plaintiff No.2 is carrying on the business of sale of clothes in

Belgaum and his son is desirous of commencing the same business

in Kolhapur, but on account of lack of any commercial premises,

they are unable to do so. The landlords have further pleaded that

skc JUDGMENT-WP-6991-00

the children of plaintiff Nos.1 and 2, who have attained majority find

it necessary to commence the business of sale of clothes and for

this purpose there is bona fide and reasonable requirement of the

suit premises.

15] Vittal Korade-plaintiff No.2 in his deposition has stated that

plaintiff No.1 has three sons viz., Deepak, Rajendra and Kishor and

Vittal, i.e., plaintiff No.2 also has three sons viz., Sanjay, Santosh

and Shrikant. Vittal has deposed that Deepak operates a Sweet

Mart in rented premises at Mahadwar Road. There is no material on

record to indicate that any business undertaken by Rajendra and

Kishor. Vittal has deposed that income from his own business and

the business of Deepak is not sufficient to maintain the families of

plaintiff Nos.1 and 2. Vittal has deposed that his sons do not have

any independent businesses of their own, though, in cross-

examination he had admitted that his sons are partners in the

business run at Belgaum. There is also material on record which

indicates that the plaintiff No.1 is also carrying on business of sale

of sweets from a shop in front of Ghati Darwaja near Mahalaxmi

Temple on Jotiba Road and through Deepak Fursan Mart on New

Mahadwar Road. Now, even though it is true that the plaintiff No.1

and his three sons are presently engaged in the business of sale of

sweets and plaintiff No.2 and his three sons are engaged in the

skc JUDGMENT-WP-6991-00

business of sale of clothes at Belgaum, that by itself does not

render the need for the suit premises any less reasonable or bona

fide. Ultimately, it is to be noted that the plaintiffs have three sons

each, who in turn have their own families. The premises through

which Deepak operates Sweet Mart is a shop admeasuring 7 ft x

10 ft and the same is rented premises. Same is the position of the

premises through which the plaintiff No.2 and his sons carry on the

business of sale of clothes at Belgaum, in the sense that the said

premises are rented premises. No doubt, the plaintiff No.2 has

purchased the property on the backside of the rented premises.

However, the same is in possession of the tenants. Considering that

apart from the two plaintiffs, each of them have three sons and each

of sons have their own families, it cannot be said that the

requirement of the landlords is neither bona fide nor reasonable.

16] The deposition, of plaintiff No.2 Vittal, has to be appreciated

in its entirety. Throughout the deposition, Vittal has deposed to the

need of recovery of suit premises for reasonable and bona fide

purposes of commencing or in any case expanding the business of

sale of clothes in Kolhapur. A stray sentence to the effect that the

plaintiffs are not in need to get the possession of the suit premises,

can hardly diminish the evidentiary value of the entire deposition. It

is quite obvious that the sentence is either a typographical error or

skc JUDGMENT-WP-6991-00

an unintentional error in the matter of record of evidence.

Significantly, no contention on basis of such stray sentence appears

to have been raised by the tenant before the Trial Court or the

Appeal Court. Similarly, neither the Trial Court nor the Appeal Court

have based their decisions upon such stray sentence. Therefore, on

basis of such a stray sentence, it is not possible to accept the

contention of Mr. Kulkarni that no case with regard to reasonable

and bona fide requirement was made out by the landlords.

17] It is settled position in law that it is for the landlord to decide

how and in what manner he should carry on his business and it is

neither for the Court nor for the tenants to dictate any terms to the

landlords in this regard. The landlord is a best judge in this regard

and has considerable freedom in this regard. The word 'require' in

the context of reasonable and bona fide requirement means more

than a mere wish or a convenience or fancy of the landlord. But it

does not mean an absolute need or absolute requirement in the

sense that the landlord will virtually starve, in case, the possession

of the suit premises is not restored. Similarly, the bona fide need of

setting up business by the family members cannot be negatived on

the ground that some of the family members have already

commenced some alternate business or taken up some other

employment or work during the pendency of the litigation. In this

skc JUDGMENT-WP-6991-00

case, it is true that the plaintiffs and their sons have some other

premises. However, it is required to be noted that there are in all six

adult members and their respective families, apart from the two

plaintiffs. The plaintiff No.1 has since expired. When considered

from such perspective, decree of eviction on the ground of

reasonable and bona fide requirement could not have been

declined merely on the ground that there were other businesses

undertaken by the plaintiffs or some of their sons.

18] The circumstance that only Vittal-plaintiff No.2 was examined

was also not sufficient for declining decree on the grounds of

reasonable and bona fide requirement. Vittal deposed not merely for

himself but also on behalf of plaintiff No.1. Vittal deposed to the

need of the family members of himself and his brother plaintiff No.1.

Vittal was extensively cross-examined and his testimony has

remained unshaken. The tenant in his deposition has also not

brought-forth any material other than what was disclosed by Vittal in

his deposition.

19] The circumstance that Vittal sold his portion in the ancestral

property to the plaintiff No.1 for consideration of Rs.45,000/- was

also not a circumstance which could have been used against the

plaintiffs for denying the decree on the ground of reasonable and

skc JUDGMENT-WP-6991-00

bona fide requirement. The material on ground indicates that the

plaintiff No.1 and his family members were residing in ancestral

house. In these circumstances, if Vittal has sold share in the

ancestral property to plaintiff No.1, there is nothing unreasonable in

the same. Such circumstance does not militate against the

requirement of the suit premises on the ground of reasonable and

bona fide requirement. The inference that Vittal or his sons never

genuinely desire to commence any business in Kolhapur is a mere

surmise or a conjecture. The distance between Belgaum and

Kolhapur is also not such that would disable the commencement of

business in Kolhapur, though Vittal and his sons ordinarily reside in

Belgaum. There is accordingly, merit in the submission that

incorrect tests have been applied, relevant material has been

excluded from the consideration and material, which is irrelevant,

has been taken into consideration by the two Courts in the context

of determining reasonable and bona fide requirement.

20] On the aspect of comparative hardship, the two Courts have

held that the tenants family comprises at least fourteen members

and apart from the suit premises, the tenant has no other premises

through which he undertakes he undertakes the business of Bar

and Restaurant. The two Courts have also held that the tenant has

acquired substantial goodwill in the area and would suffer greater

hardship, if evicted.

     skc                                                                 JUDGMENT-WP-6991-00



            21]     On the aspect of tenant acquiring goodwill, this Court in the

case of Gurulingappa Sharnappa Birajdar since deceased

through legal heirs and representatives Ashokkumar

Gurulingappa Birajdar & Anr. vs. Sidramappa Ganpatrao Mulge

& Ors.2, has held that the circumstance that the tenant has acquired

goodwill on account of business conducted in the suit premises can

be no ground to deny the relief of possession to the landlord. That

consequence, is inevitable. The circumstance that the tenant has a

large family and that the tenant has no other premises through

which he undertakes the business of Bar and Restaurant may be a

relevant circumstance in the context of comparative hardship.

However, the material on record in the present case, indicates that

the tenant has taken no steps whatsoever in the matter of acquiring

alternate premises, even though, several alternate premises may

have been available to the tenant. This is a relevant circumstance,

which the two Courts have completely ignored. There is material on

record that the tenant is in a financially sound position. The tenant

has purchased and constructed his own house at Tarabai Park,

which is a prime residential locality.

22] Vittal Korade-plaintiff No.2, in his deposition, has stated that

there are different kind of shops available adjacent to the suit

premises in Shivaji Market Complex, Shivaji Stadium Market and 2 2009 (3) Mh. L. J. 661

skc JUDGMENT-WP-6991-00

some other places. The tenant's brother, who has deposed as a

constituted attorney for the tenant has admitted that around Shivaji

Stadium, which is near the suit premises, there is shopping center

complex. Further, at some distance, there is Shivaji Market

Complex in which there are number of shopping centers/complexes.

Besides, there are number of shopping centers and complexes

which have come up near S.T. Stand, Mahalaxmi Temple,

Mahalaxmi Chambers, New Shahpuri etc. The tenant has admitted

to not having approached to the Kolhapur Municipal Council for

alternate shop premises on the ground that some land appurtenant

to the suit premises was acquired for the road widening. This

material is sufficient to indicate that there are several other

premises, which were available, but the tenant did not make any

serious efforts for the acquisition of the same.

23] The financial position of the tenant is also quite strong. In the

first place, for last several years, the tenant has been carrying on

business of Bar and Restaurant from the suit premises. The suit

premises are located in prime market area. The tenant has admitted

to having purchased a plot in Padma Cooperative Housing Society

and to the construction of residential Bunglow thereon, in which the

tenant and his family members reside. The statement of the tenant's

brother and constituted attorney that the tenant will starve, if evicted

skc JUDGMENT-WP-6991-00

from the suit premises hardly inspires any confidence. Therefore,

upon cumulative consideration of the aforesaid facts and

circumstances, there is merit in the contention of the Mr. Warunjikar

that the two Courts have failed to apply the correct tests and

principles in the matter of determination of reasonable and bona

fide requirement and comparative hardship. Vital and relevant

material on record has been completely overlooked and instead, the

decision to deny decree of eviction came to be based upon the

irrelevant circumstances or circumstances which were really not

germane to the issue. Ignorance of vital and relevant material or

taking into consideration of irrelevant and extraneous material

constitutes unreasonableness, which is a specie of perversity in the

record of finding of fact. Besides, the true and correct principles with

regard to determination of reasonable and bona fide requirement

have not been applied by the two Courts, which is also a ground for

interference.

24] On the aspect of final relief however, this does not appear to

be a case where the landlords should should be permitted to

recover the possession of the entire suit premises. Rather this is a

fit case where the Court ought to consider the proviso to Section

13(2) of the Bombay Rents, Hotel and Lodging Houses Rates

Control, 1947 Act (Rent Act), which enables the Court to pass a

skc JUDGMENT-WP-6991-00

decree in respect of part of the suit premises, having regard to all

the circumstances of the case, including the issue of comparative

hardship. In this case, the tenant has deposed that his family

comprises of 14 members, who are dependent upon the income

from the business of Bar and Restaurant undertaken through the

suit premises. The tenant, through his Predecessor-in-title, has

been in possession of the suit premises since the year 1924 or

thereabouts. The suit premises are substantially large, in that they

admeasure around 103.05 sq.meters with open space on the rear

side. The suit premises comprise ground and first storey. Although,

the need of the landlords may be reasonable and bona fide, regard

shall have to be had to such factors particularly in the context of

provisions contained in Section 13(2) of the Rent Act. The aspect of

hardship would be suitably balanced, if the recovery of possession

is permitted in respect of part of the suit premises, particularly

because in the facts and circumstances of the present case, it is

easily possible to partition the suit premises into half shares, so that

the landlords as well as the tenant are able to undertake their

respective businesses.

25] The Apex Court in case of The Apex Court in the case of

Badrinarayan Chunilal Bhutada vs. Govindram Ramgopal

Mundada3 has held that sub-section 2 of Section 13 of the Rent Act 3 (2003) 2 SCC 320

skc JUDGMENT-WP-6991-00

falls more appropriately within the domain of equitable or social

justice. Section 13(2) obliges the Court, in spite of the finding as to

reasonable and genuine requirement having been arrived at in

favour of the landlords, to weigh in scales placing the hardship

which would result to the landlord in case of denial of eviction in one

balance pan and the hardship likely to be suffered by the tenant in

case of his being evicted in the other and then find out judiciously

which way the balance tilts. An empty truism cannot be hardship. A

failure of the landlord to make out a case for eviction under Section

13(1)(g) is not a hardship to the landlord; so also on a case for

eviction under Section 13(1)(g) having been made out, the fact that

the tenant will be liable to be evicted, is not by itself hardship to the

tenant. A mere wish or desire of the landlord to acquire possession

over the tenancy premises cannot be said to be bona fide and

reasonable requirement. The requirement implies an element of

necessity. The necessity is a necessity without regard to the degree

of which it may be. For the purpose of Section 13(2), the degree of

urgency or the intensity of felt need assumes significance. It is a

judicious process of finding out, as far as practicable, and then

making a comparative measure of the two degrees, which is

involved in arriving at the finding on comparative hardship.

skc JUDGMENT-WP-6991-00

26] The provisions of the Rent Act do not bar a partial eviction.

Rather, they contemplate a partial eviction specifically. This would

of course depend on the answer to the question whether it would be

enough to dislodge the tenant from only a part of the premises in his

possession, and to what extent, to satisfy the proved requirement of

the landlord associated with consideration of the comparative

hardship. If the Court is satisfied that the ends of justice would be

met if the tenant is not called upon to vacate the entire tenancy

premises but only a part of it, then the Court may order partial

eviction so that the requirement of landlord is satisfied and the

tenant is also not deprived of his running business activity.

27] Inasmuch as Section 13(2) entails the consequence of the

landlord being denied the decree of eviction, wholly and partly, in

spite of his having proved reasonable and bona fide requirement

within the meaning of Section 13(1)(g), the burden of proving

availability of grounds under Section 13(2) of the Rent Act is on the

tenant. It is expected of the parties to raise necessary pleadings,

and the Court to frame an issue based on the pleadings so as to

enable the parties to adduce evidence and bring on record such

relevant material as would enable the Court forming opinion on the

issue as to comparative hardship and consistently with such finding

whether partial eviction would meet the ends of justice. Even if no

skc JUDGMENT-WP-6991-00

issue has been framed, the Court may discharge its duty by taking

into consideration such material as may be available on record.

28] The Rent Act does not lay down any guidelines or relevant

factors based whereon the issue of comparative hardship is to be

determined. A slight indication is contained in the first paragraph of

Section 13(2) that the Court must have regard to all the

circumstances of the case, including the question whether other

reasonable accommodation is available to the landlord or the

tenant. The expression 'other reasonable accommodation' does not

mean an accommodation suitable in all respects as the suit

accommodation. The legislature has chosen it appropriate to leave

the determination of issue in the discretion of the Court.

29] Thus, there is an obligation cast upon the Court to not only

consider the issue of comparative hardship, but also consider the

issue as to whether partial eviction might suffice to balance the

issue of hardship. This is the reason the Apex Court has described

the provisions contained in Section 13(2) of the Rent Act as one in

tune with the principles of equitable and social justice. The statutory

scheme as expressed in Section 13(2) of the Rent Act does not

merely bar, but rather contemplates the consideration of issue of

partial eviction. The Apex Court in case of Badrinarayan Chunialal

skc JUDGMENT-WP-6991-00

Bhutada (supra), has no doubt held that ordinarily an issue is liable

to be framed in this regard. However, the Apex Court has

proceeded to hold that even if no issue has been framed, the Court

may discharge its duty by taking into consideration such material as

may be available on record.

30] In the present case, the landlords had instituted the suit

seeking recovery of possession in the year 1980. A remand, after a

lapse of almost 35 years, is hardly an appropriate option. The

material on record, as noted earlier, establishes that the landlords

have made out a case for reasonable and bona fide requirement.

The reasoning adopted by two Courts in the matters of

determination of reasonable and bona fide requirement as well as

comparative hardship is not in accordance with law. Nevertheless,

the material on record does establishes that the appropriate manner

balancing the equities would be to direct the partial eviction of the

tenant from the suit premises. That would, in the peculiar facts and

circumstances of the present case, meet with the ends of social and

equitable justice, which is domain within which the provisions

contained in Section 13(2) of the Rent Act legitimately fall. The

tenant and his 14 family members, indeed are dependent upon the

Bar and Restaurant business undertaken through the suit premises.

The tenant through his predecessor-in-title, has been in occupation

skc JUDGMENT-WP-6991-00

of the suit premises since the year 1924 and in such circumstances,

ouster from the entire suit premises would far outweigh the hardship

which the tenant and his family members will occasion, as

compared to hardship which the landlords may occasion by way of

grant of partial decree for recovery of possession. Ultimately, the

evidence on record also establishes that the landlords and their

children have some businesses, both at Kolhapur and Belgaum.

The requirement of the landlords and their family members is no

doubt reasonable and bona fide. The financial position of both the

landlords as well as the tenant is quite sound, therefore, the

balancing the equities, it will be appropriate if the recovery of

possession is permitted in respect of half of the suit premises only.

31] Accordingly, this petition is disposed of with the following

order:

                   a]    The impugned judgments and decrees dated 28

                   August 1991 and 31 January 2000 are set aside;





                   b]    The petitioners Regular Civil Suit No. 820 of 1980 is

partly decreed. The petitioners-landlords are held entitled to

recovery of possession of half the portion of the suit

premises and consequently the respondent-tenant is

directed to deliver the same to the petitioners-landlords;

     skc                                                      JUDGMENT-WP-6991-00



          c]    There shall however be a stay upon the execution of

partial eviction decree as aforesaid, for a period of three

months from today;

d] After expiry of three months from today, should the

petitioners-landlords institute execution proceedings, the

Executing Court is directed to adopt the following course of

action:

(i) To appoint a suitable Engineer/Architect as a

Court Commissioner to visit the suit premises and to

submit a Report and Plans for partition of the suit

premises into two suitable halves;