Jammu & Kashmir High Court - Srinagar Bench

Abdul Aziz Khan And Another vs Ghulam Mohammad Langoo on 28 May, 2021

             HIGH COURT OF JAMMU AND KASHMIR
                       AT SRINAGAR
                             ....
                            CFA No.25/2013
                          c/w CFA No.57/2016

                                                      Reserved on: 19.04.2021
                                                    Pronounced on: 28.05.2021

Abdul Aziz Khan and another
                                                     ...............Appellant(s)

                                     Through: Mr Zubair Ahmad, Advocate

                                  Versus

Ghulam Mohammad Langoo
                                                     ...............Respondents

                                    Through: Mr M. A. Qayoom, Advocate

Coram:
          HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE

                              JUDGMENT

01.Judgment and decree dated 28th December 2012, passed by the

Additional District Judge, Srinagar (for brevity "Trial Court") in a

Suit for ejectment and recovery of arrears of rent is under challenge in

this Appeal on the grounds tailored therein.

02.As is discernible from pleadings of parties as also evident from the

record, Ghulam Mohammad Langoo (respondent herein), filed a Suit

for ejectment and arrears of rent against appellant-defendant in

respect of a shop and room (for short "suit premises") under the

tenancy of defendant on the grounds that defendant defaulted in

payment of rent and suit premises is required by him for his own use

and occupation in order to enable his son, Mohammad Amin Langoo,

to run business of his own, who is running business in partnership

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with his brother but have separated now. He has thus dire need to

occupy the suit premises to carry on his own business.

03.The suit-premises was taken on rent by defendant-tenant from

plaintiff on monthly rent of Rs.350/- for a period of eleven months. In

this regard a rent deed was executed on 7th July 1997. The rent was

agreed to be paid on 10th of every month. The case of the plaintiff is

that defendant from the very beginning defaulted in making payment

of rent. After expiry of initial period of eleven months, defendant did

not seek its extension, nor he vacated suit premises and continued to

remain in possession. Defendant is alleged to have not paid rent from

1st July 1997 nor did he vacate suit premises. Plaintiff demanded rent

and also asked defendant to vacate premises but he refused. Notice

was served upon defendant asking him handover possession of suit

premises and pay arrears of rent as well as damages. In the notice,

plaintiff claimed that suit premises was required by him for

occupation of his son, Mohammad Amin Langoo, to enable him to

run his business in the suit premises. Plaintiff, thus, sought eviction of

defendant-tenant on the grounds of default and reasonable

requirement to occupy for his son.

04.Defendant/tenant admitted that he executed rent deed in respect of

suit premises in favour of plaintiff on 7th July 1997, though he was

holding possession as tenant since 1976. The suit premises was

originally owned by Nizam-ud-din Qazi, from whom he obtained suit

premises on rent. The suit premises was purchased by plaintiff in the

year 1987 from his previous landlord. Defendant admitted that he

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continued to be tenant of suit premises after it was purchased by

plaintiff and he even executed Rent Deed in his favour. He denied

having committed any default in payment of rent. He pleads that suit

premises is the only source of his livelihood on the earnings of which

he has to maintain his family. He had been paying rent to plaintiff and

his legal heirs. It is stated that intention of plaintiff from the very

beginning was not good as he wanted to evict him. He paid cheque in

the month of January, 2020 for an amount of Rs.3000/- to the son-in-

law of plaintiff who accepted the same but later on returned it on 15th

April 2000 on the pretext that relation between landlord and tenant

had gone sour.

05.What emerges from written statement is that relationship of landlord

and tenant is admitted. Requirement of landlord to occupy the shop

for his son has been denied. The default in payment of rent has also

been also denied. Defendant claims that suit premises is his only

source of livelihood. The sons of plaintiff are doing their business.

Two sons are conducting business in the shop adjacent to the shop

under his tenancy and he has also purchased commercial building in

Qamarwari, Srinagar, where he adjusted his two other sons and other

shops have been given on rent. Plaintiff had also purchased land.

06.The Trial Court, in view of pleadings of parties, framed following

Issues on 17th October 2000:

1. Whether the suit is not maintainable under law? OPD

2. Whether the plaintiff has no cause of action against the defendant for filing the suit? OPD

3. Whether the plaintiff is conducting business in the suit premises right from 1976? OPD

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4. Whether the defendant is in arrears of rent from 1.07.1997 to 31.05.1998? OPD

5. Whether the plaintiff returned the cheque of Rs.3000/-

which was paid as rent through son-in-law of plaintiff? OPD

6. Whether there is no tenancy rights existing to the defendant from 01.05.1998? OPP

7. Whether the defendant is defaulter and is liable to be evicted from the demised premises? OPP

8. Whether the demised premises are required by the plaintiff for his own sons? OPD

9. Whether the partial eviction of the demised premises will serve the purpose of the parties? OPP

10. Whether the plaintiff is entitled to damages to the tune of Rs.10,000/- per month for unauthorized occupation and use of demised premises from 01.06.1998 onwards? OPP

11.Whether the sons of the plaintiff are already established in business and as such there is no personal requirement of the demised shop to the plaintiff? OPD

07.On 21st July 2006, additional Issue was framed:

11.4 What is the comparative advantage and disadvantage of the parties in case of ejectment of the defendant from the suit premises? O.P. Parties.

08.During pendency of the above suit, as is evident from the record,

defendant-tenant executed a Gift Deed on 15th October 2008, in

respect of the suit premises in favour of his wife, which was

registered on 4th December, 2008. The gift deed has been executed by

him, showing therein himself as owner of the suit premises. Execution

of Gift Deed necessitated plaintiff/ respondent to amend the suit to

implead wife of tenant/defendant as defendant. She claims to be the

owner on the basis of the Gift Deed executed in her favour.

09.After execution of Gift deed, wife of defendant-tenant filed a suit for

declaration and injunction to cancel Rent Deed dated 7th July 1997,

executed by her husband - defendant No.1 in favour of plaintiff as

null and void with other reliefs. Plaintiff has also filed a suit seeking

cancellation of Gift Deed.

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10.In terms of impugned judgement and decree dated 28.12.2012, the

suit for eviction of premises 6x11, the room situated at first floor with

Rs.3000/- as arrears of rent has been decreed in favour of plaintiff -

respondent herein and against defendants - appellants herein, who

have been directed to hand over premises to plaintiff within a period

two months from the date of pronouncement of judgement and in

default, defendants will be liable to pay to plaintiff the damages at the

rate of Rs.500/- per day till the premises is handed over to plaintiff. It

is this judgement and decree of which appellants are aggrieved and

seek setting aside thereof.

11.I have heard learned counsel for parties and considered the matter.

12.It is pleaded in the Appeal that appellants-defendants are recorded

owners in possession of suit property and by default had been paying

rent as tenants in respect of the property owned by them. The Trial

Court permitted respondent-plaintiff to amend the plaint by adding

appellant no.2 as party defendant but did not permit appellant no.1 to

file amended written statement and pleadings. It is contended that the

Trial Court has not considered and appreciated subsequent event vis-

à-vis title of suit property and it was obliged to scrutinize title and

ownership of the suit property but it did not take into consideration

the mutation entries and subsequent transfer of the suit property

which exclusively belonged to the appellants. It is averred that

respondent-plaintiff was never owner of suit property as the title

vested in appellants-defendants, being recorded owner in possession

of suit property so respondent could never claim himself to be

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landlord of suit property. It is also stated that the Trial court passed

impugned judgment by ignoring settled legal facts in the instant

matter. Next submission is that mere execution of rent deed by

defendant/tenant in favour of plaintiff/respondent does not confer

ownership rights of the suit property upon him and he is not included

in the definition of landlord and that the Trial Court has passed the

impugned judgment against the facts as the partial eviction has been

ordered without ascertaining the size of the shop which is 6×17 and

the room over the same is of the same size which is not practicably

possible as the room has no separate entrance.

13.Respondent - plaintiff has filed his Cross Objections (CFA

no.57/2016). It is stated therein that the findings returned by the Trial

Court on Issue no.9 and 10 are liable to be reversed as the Trial Court

has directed eviction of defendant from the room only. The Trial

Court of its own devised a method of allocating the shop to defendant

and the room above the shop to plaintiff. Once the Trial Court has

found that plaintiff needs the shop for his son, then there is no scope

for permitting defendant to remain in possession of suit shop and

hand over possession of room to plaintiff, which room has access

from the shop itself and there was no possibility of constructing any

other access to the room. In that view of the matter also, judgment

and decree of the trial court deserves to be modified and a decree for

entire suit property deserves to be passed in favour of respondent-

plaintiff with a further direction to him to pay an amount of

Rs.2,38,050/- to plaintiff as rent @ Rs.350/- per month from

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01.07.1997 as also future damages @ Rs.10,000/- per month along

with costs of the suit. It is also mentioned in the Cross Objections

that appellants have challenged judgement and decree mainly on the

ground that during pendency of case after evidence was recorded,

appellant no.1 found that land over which double storeyed shop was

raised, was State land and was recorded in his name and that after

obtaining requisite revenue documents, he transferred the said

property in favour of his wife - appellant no.2. It has also been stated

that since respondent was neither owner nor recorded possessor of

suit property, he had therefore, no right to claim any rent or file suit

before the court below and that appellants have also stated that

appellant no.1 by default, had been treating himself as tenant and

respondent by deceitful means had been extracting rent from him. It is

stated that denial of title by a tenant constitutes ground for eviction. If

plea of denial of relationship of landlord and tenant is raised by

tenant, then a decree for eviction should follow.

14.Although of late, it has been tried by appellants to show that they

withdraw their stand qua title of suit premises, yet it would not

change the complexion of the case set up by them as by their conduct

they have tried to upset and disturb the proceedings which were

initiated by plaintiff-respondent by using different tactics.

Amendment in the memo of Appeal was sought for by appellants by

virtue of an application (CM no.01/2016). They pray therein for

deletion of certain grounds, including the plea as to title and

ownership of suit premises as also one that they are owners thereof

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and thus, disputing relationship of landlord and tenant, and in their

place seek addition of some grounds; by which they plead that Trial

Court has not discussed the evidence led by parties inasmuch as

appellants have been able to show that factum of reasonable

requirement by landlord has not at all been established by respondent

and the scales of comparative advantage and disadvantage were in

favour of appellants, and that eviction proceedings instituted by

respondent against appellants were not at all bona fide, when ground

for personal requirement raised by respondent was not genuine.

15.Mr M. A. Qayoom, learned counsel for respondent - plaintiff, has

insisted that an admission made by a party in his pleadings cannot be

allowed to be withdrawn by him and amendment sought by appellants

having effect of withdrawing what has been stated by them in the

memo of Appeal. He also avers that appellants cannot be allowed to

retract from what is stated by them in the memo of appeal as their

whole appeal being based on the assertions that they are owners of

suit property and that respondent has no title thereover and therefore,

before surrendering the possession of property to respondent, they can

neither be allowed to amend the appeal nor can they be permitted to

introduce a new case, not earlier set up by them in the appeal. His

next submission is that in terms of Section 116 of the Evidence Act,

no tenant of immovable property, or claiming through such tenant,

shall during continuance of tenancy be permitted to deny that landlord

of such tenanted property had at the beginning of tenancy, title of

such immovable property and no person who comes upon any

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immovable property by licence in possession thereof, shall be

permitted to deny to have title to such possession at the time when

such licence was given. He also states that appellants having denied

title of landlord over the suit property, they had to be evicted from

suit property by treating the suit filed by respondent - plaintiff as one

for possession and eviction of a trespasser.

16.A civil suit in the capacity of landlord was filed by respondent before

the Trial Court for ejectment of defendant - appellant no.1, inter alia,

on the grounds that defendant was in default in payment of rent and

plaintiff required the suit premises for his bona fide requirement.

Appellant no.1 - defendant pleaded in his written statement that he

had been in possession of suit property as its tenant since June 1976

inasmuch as he had executed a rent deed with previous landlord.

Defendant - appellant no.1 in his written statement before the Trial

Court has also in clear cut terms admitted that he executed rent deed

with plaintiff - respondent herein. By this, defendant has admitted

relationship of landlord and tenant. He has also admitted that he

received notices from plaintiff and replied them. Once that being the

position, appellant no.1 cannot be permitted to both approbate and

reprobate. On one hand he admits relationship of landlord and tenant,

and on other hand he claims to be owner of the same property with

respect whereof he has executed rent deed in favour of respondent -

plaintiff.

17.Perusal of Trial Court record as also impugned judgement reveals that

the building, housing suit premises, situated near Fire Brigade,

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Batamalloo, Srinagar, originally belonged to Qazi Mohammad

Nizamuddin, from whom the same was purchased by plaintiff.

Defendant was using the premises of erstwhile owner and thereafter

when the same was purchased by plaintiff, he became tenant under

him. It has also become evident from the pleadings and statement of

witnesses that there is relationship of landlord and tenant and

resultantly there is no question of defendant - appellant no.1, to

become owner of premises under any stretch of imagination. The

Trial Court has rightly said that if defendant - appellant no.1 sets up

any other tale other than the tenant, the proprietary demands under all

canons of justice and law that he should first surrender the premises to

landlord and only thereafter he can contest the suit on the ground that

he was landlord of premises and thereafter set up his title and claim

possession back.

18.Admittedly doctrine of estoppel under Section 116 of Evidence Act

applies to the case in hand. If defendant/appellant denies relationship

of landlord and tenant, then such a contention per se becomes a

ground for eviction of appellants from suit premises. As has been held

by the Privy Council in the case of Gajapatiraj v. Secretary of State

AIR 1926 Privy Council 18, a litigant who has all along maintained a

position in support of one branch of his suit cannot be permitted when

he fails upon this branch to withdraw from the position and assert the

contrary more especially when he thereby places his opponent at a

great disadvantage. In a subsequent decision reported in the case of

Alluri Venkatapathi Raju and another v. Dantuluri Venkatanarasimha

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Raju and others, AIR 1936 Privy Council 264, the Privy Council

observed:

"that it sometimes happens that persons make statements which serve their purpose or proceed upon ignorance of the true position; and it is not their statements, but their relations with the estate, which should be taken into consideration in determining the issue."

19.The principles, underlying aforesaid decisions, would clearly indicate

that a party cannot be permitted to change the stand which would

frustrate the case of other-side. This is the elementary rule of logic. It

is well settled that a person is not to be heard who alleges things

contradictory to each other. As the maxim goes allegans contraria non

est audiendus. Even the Supreme Court in a decision reported in

Heeralal v. Kalyal Mal, AIR 1998 SC 618, observed that once written

statement contains admission in favour of the plaintiff, by amendment

such admission of defendants cannot be allowed to be withdrawn, if

such withdrawal would amount to totally displacing the case of the

plaintiff and which would cause him irretrievable prejudice. The

principle enunciated by the Supreme Court squarely applies to the fact

situation of the present case.

20.In the present case undoubtedly plaintiff-respondent besides the

averments in the plaint proceeded with the trial and entered the

witness box and gave evidence in the context of stand taken by

defendant/appellant in written statement that the premises was let out

to him by plaintiff. It is at such a belated stage that appellant thought

of introducing amendment which would have inevitable effect of

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permitting a plea that would frustrate the cause of action of plaintiff to

maintain the suit.

21.It is settled law that a person cannot be allowed to approbate and

reprobate. No party can take stand as per convenience and a party

cannot be allowed to withdraw from the admissions made by it in the

pleadings in respect of the same subject matter. In Bansraj

Laltaprasad Mishra v. Stanley Parker Jones, AIR 2006 SC 3569 , it

was held that principle of estoppel arising from the contract of

tenancy was based upon a healthy and salutary principle of law and

justice that a tenant who could not have got possession but for his

contract of tenancy admitting the right of landlord should not be

allowed to launch his landlord in some inequitable situation taking

undue advantage of the possession that he got and any probable defect

in the title of his landlord. It is on account of such a contract of

tenancy and as a result of the tenant's entry into possession on the

admission of landlord's title that the principle of estoppel is attracted.

22.The Courts must keep in mind that the Courts cannot be converted

into a wrestling field, for trial of tricks where the Court has to act as

an empire. The Courts must effectively intervene and nip the evil of

perjury and false statements in bud. Where a tenant takes different

stand in different Courts to defeat the effort of landlord to get the

premises vacated at the time of need such an effort must be curbed

down by the Courts effectively by binding him with his earlier

statement in respect of the same premises and his plea of raising a

dispute in respect of the rent admitted by him should not be heard and

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entertained. If the parties are allowed to approbate and reprobate at

their sweet will and convenience and take the Courts for a ride, the

whole judicial system shall fail. The Courts must effectively check

such parties, who take inconsistent stand, according to their

convenience. [See: K.S. Patcha v. Arun Sarna, 2008 SCC Online Del

884; and Prakash Chander Kaushik v. Vishal Timer Traders, 2017 0

Supreme (Del) 2724].

23.Law does not permit a person to both approbate and reprobate. This

principle is based on the doctrine of election which postulates that no

party can accept and reject the same instrument and that a person

cannot say at one time that a transaction is valid and thereby obtain

some advantage, to which he could only be entitled on the footing that

it is valid, and then turn round and say it is void for the purpose of

securing some other advantage. [Vide: Verschures Creameries Ltd v.

Hull and Netherlands Steamship Co. Ltd, (1921) 2 KB 608, 612

(CA); and R. N. Gosain v. Yashpal Dhir (1992) 4 SCC 683].

24.It is also well settled that during continuance of tenancy, the tenant

cannot acquire by prescription a permanent right of occupancy in

derogation of landlord's title by mere assertion of such a right to

knowledge to knowledge of the landlord. [See: Mohammad Mumtaz

Ali Khan v. Mohan Singh, L.R. 50 I.A. 202; Madhavrao Vaman

Satindalgekar v. Raghunath Venkatesh Deshpande (1923) 25 BOMLR

1005; Naini Pillai Marakayar v. Ramanathan Chettiar, 41 Ind Cas

788]. No tenant in India can obtain any right to a permanent tenancy

by prescription in them against his landlord from whom he holds the

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lands. [See: Atyam Veerraju and others v. Pechetti Venkanna and

others, 1966 AIR SC 629].

25.Qua gift deed having been made by appellant no.1 in favour of

appellant no.2, the Trial Court has correctly held that such ground is

not tenable. It has rightly declared gift deed as null and void.

In the above milieu, application (CM no.01/2016), seeking

amendment in the Appeal cannot be granted and is, accordingly,

rejected.

26.There is a contention of appellants that respondent has no bona fide

requirement of suit premises. Appellants claim that suit premises is

only source of livelihood appellants. The sons of plaintiff are said to

have been doing their business. Two sons are conducting business in

the shop adjacent to the shop under the tenancy of appellant no.1 and

plaintiff/respondent has also purchased commercial building in

Qamarwari, Srinagar, where he adjusted his two other sons and other

shops have been given on rent. It is also assertions of appellants that

suit premises is the only source of livelihood of defendant, on the

earnings whereof he has to maintain his family. He had been paying

rent to plaintiff and his legal heirs. It is also maintained that intention

of plaintiff from the very beginning was not good as he wanted to

evict him. He paid cheque in the month of January, 2020 for an

amount of Rs.3000/- to the son-in-law of plaintiff who accepted the

same but later on returned it on 15th April 2000 on the pretext that

relation between landlord and tenant had gone sour.

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27.As regards above contentions of appellants it may be mentioned here

that the Supreme Court in Bega Begum v. Abdul Ahad Khan (1979) 1

SCC 273, has held that 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 one landlord to get

a decree for eviction. The Supreme Court in this case also considered

the scope and ambit of expression 'reasonable requirement' as

follows:

"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 or the same family."

28.The Supreme Court has said that Section 11(1)(h) is meant for benefit

of landlord and therefore, it must be constructed to advance object of

the Act and the word occupation does not exclude possibility of

landlord starting a business or running a hotel in the shop which also

would amount to personal occupation by landlord. Even the section is

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wide enough to include necessity of not only landlord but also of

persons who are living with him as members of the same family. The

Supreme Court further went to hold that it is no doubt true that the

tenant will have to be ousted from the house if a decree for eviction is

passed but such an event would happen whenever a decree for

eviction is passed and merely because tenant will be ousted from

premises where he was running his activity cannot, by itself, be

considered to be a hardship and be a valid ground for refusing

landlord a decree for eviction. The Supreme Court has also said that

owner of the property cannot be denied eviction and compelled to live

poorly merely to enable tenant to carry on his business activity at the

cost of landlord. The tenant cannot insist on getting an alternative

accommodation of a similar nature in the same locality because that

will be asking for the impossible.

29.From perusal of statements of witnesses, plaintiff/respondent has been

able to prove that he is in bona fide need of the suit premises. Thus,

impugned judgement needs to be set-aside and modified to the extent

of partial eviction, for, plaintiff-respondent is entitled to have the

whole premises with respect whereof he filed the suit before the Trial

Court and sought eviction of defendant-appellant no.1 from the suit

premises, more particularly when the Trial Court has found that

plaintiff has succeeded in proving that his need is a bona fide one and,

therefore, the suit of plaintiff to this extent requires to be decreed.

30.It is now well settled law that a tenant cannot dictate and question

adequacy requirement of space for proposed business venture of

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landlord. The Supreme Court in Bega Begum and others v. Abdul

Ahad Khan and others, 1979 AIR SC 272 , has said that in deciding

the aspect of balance of convenience of parties in an eviction suit,

each party has to prove its relative advantages or disadvantages and

entire onus cannot be thrown on plaintiff to prove that lesser

disadvantages will be suffered by defendant. After saying this, the

Supreme Court held that tenants cannot be allowed to dictate to

landlord that they cannot be evicted unless they get a similar

accommodation in the similar locality. The Supreme Court decreed

the suit for ejectment in favour of landlord and against tenants.

31.It is common knowledge that whenever a landlord moves in the Court

for ejection of a tenant, on the ground of 'personal need', the tenant

unvaryingly takes a stand that landlord has already sufficient space

and, therefore, contention of landlord is unsustainable. The Supreme

Court, recently, in Civil Appeal Nos.231-232 of 2021 Balwant Singh

@ Bant Singh and another vs. Sudarshan Kumar and another. on 27

January, 2021 has finally set at rest the said controversy. The brief

facts of the said case are that landlords initiated the eviction

proceedings against tenants in respect of shops. Appellants are NRI

and sought immediate recovery of possession of rented premises by

invoking the provisions of Section 13B read with Section 18A of the

East Punjab Urban Rent Restriction Act, 1949 Act, claiming that they

desired to start the business of sale, purchase and manufacture of

furniture and the property already in possession of landlord, is

insufficient for the proposed business. The two tenants pleaded before

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the Rent Controller that landlords have already secured possession of

two shops through litigations and furniture business can be

conveniently conducted in the already available space. The Rent

Controller considered rival submissions and observed that three

necessary ingredients for initiating proceedings under Section 13B of

the Act were satisfied by the landlords. The Rent Controller

accordingly rejected the objections of the tenants that a portion of the

premises would be sufficient for the proposed business & ordered for

eviction of the tenants. Aggrieved by the said order, the tenants filed

Revisions before the High Court to challenge the orders of the Rent

Controller. The High Court was impressed by the arguments of the

tenants and the order passed by the Rent Controller was then set

aside. The said order of the High Court was assailed in the Supreme

Court.

It was argued before the Supreme Court, that landlords had

sufficient space available in their possession for proposed furniture

business and there was no bona fide need of tenanted portion by

landlords. It was also pleaded that landlords were aged people and

therefore there was no bona fide need of landlords for proposed

business venture.

The Supreme Court was not satisfied with the logic and

reasoning of the respondents/ tenants that landlords have adequate

space and held that tenants cannot dictate adequacy of space required

by the landlords for their proposed business and held thus:

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"11. On the above aspect, it is not for the tenant to dictate how much space is adequate for the proposed business venture or to suggest that the available space with the landlord will be adequate. Insofar as the earlier eviction proceeding, the concerned vacant shops under possession of the landlords were duly disclosed, but the case of the landlord is that the premises/space under their possession is insufficient for the proposed furniture business. On the age aspect, it is seen that the respondents are also senior citizens but that has not affected their desire to continue their business in the tenanted premises. Therefore, age cannot be factored against the landlords in their proposed business.

.......

13. On consideration of the above aspects, the genuine need of the appellants to secure vacant possession of the premises for the proposed business is found to be established. According to us, the adequacy or otherwise of the space available with the landlord for the business in mind is not for the tenant to dictate. The special procedure for NRI landlord was deliberately designed by the Legislature to speedily secure possession of tenanted premises for bona fide need of the NRI landlords and such legislative intent to confer the right of summary eviction, as a one time measure cannot be frustrated, without strong reason."

32.The Supreme Court set-aside the judgment and order of the High

Court and ordered respondents/tenants to handover vacant physical

possession of the premises to the landlord.

33.Learned counsel for respondent/plaintiff has contended that Section

11(1)(h) of Houses and Shops Rent Control Act, lays down that a

landlord is entitled to decree for recovery of possession of his shop

where the shop is reasonably required by him either for the purposes

of building or rebuilding or for his own occupation or for the

occupation of any person for whose benefit the shop is held. On the

other hand, defendant/appellant has taken the stand that plea of

personal requirement made by plaintiff is patently false and is a ruse

to evict defendant from suit premises, since the plaintiff has already a

number of properties to adjust his son there to conduct business etc.

34.It may not be out of place to mention here that this is no ground to

urge that landlord is already having business elsewhere, and landlord

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has no genuine need to seek eviction of tenant inasmuch as it is not a

tenant to dictate the terms to landlord and advise him what he should

do and what he should not. In this regard I may refer to the judgement

of the Supreme Court in the case of M/s Sait Nagjee Purushotham &

Co. Ltd v. Vimalabai Prabhulal and others, (2005) 8 SCC 252, in

which it was held:

"It is true that the landlords have their business spreading over Chennai and Hyderabad and if they wanted to expand their business at Calicut it cannot be said to be unnatural thereby denying the eviction of the tenant from the premises in question. It is always the prerogative of the landlord that if he requires the premises in question for his bona fide use for expansion of business this is no ground to say that the landlords are already having their business at Chennai and Hyderabad therefore, it is not genuine need. It is not the tenant who can dictate the terms to the landlords and advise him what he should do and what he should not. It is always the privilege of the landlord to choose the nature of the business and the place of business."

35.It would be apposite to refer to the case of the Supreme Court in

Dinesh Kumar v. Yusuf Ali, AIR 2010 SC 2679, in which the

Supreme Court has held that the landlord is the best judge of his need

and has observed thus:

"8. In Prativa Devi Vs. T.V. Krishnan (1996) 5 SCC 353, this Court held that the landlord is the best judge of his requirement and courts have no concern to dictate the landlord as to how and in what manner he should live."

36.It would be worthwhile to refer to the case of Ram Narain v. Lakshmi

Dass Kundra AIR 1971 Delhi 268, in which landlord lived on the first

floor and wanted additional accommodation from the tenant on the

first floor while the ground floor was being used for commercial

purposes. The landlord did not convert the accommodation on ground

floor into residential purpose but required residential accommodation

on the first floor adjoining his own accommodation for a residence.

CFA No.25/2013 c/w CFA No.57/2016

The Delhi High Court held that a landlord cannot be precluded from

claiming back possession of a portion of his property merely because

he has lived uncomfortably in the past and has decided to now live

more comfortably, leading to the institution of a petition for eviction

by him on the ground of personal requirement.

37.The most important limb of the 'personal need' of a landlord under

the Rent Control Act is 'bona fide' & 'need'. It is relevant to refer to

the case of Shiv Sarup Gupta vs Dr. Mahesh Chand Gupta AIR 1999

SC 2507, in which the Supreme Court has elucidated the true meaning

of 'bona fide' and 'need', and held thus:

"12. A perusal of Section 14 of the Act shows that the law has imposed restrictions on the recovery of possession, of any premises by landlord from a tenant notwithstanding any law or contract to the contrary. However, an order for recovery of possession is permissible on one or more of the specified grounds. One such ground is the premises let for residential purposes being required bona fide by the landlord for occupation as residence for himself or for any member of his family dependent on him.

What is a bona fide requirement is not defined in the Act. The words 'need' and 'require' both denote a certain degree of want with a thrust within demanding fulfilment. 'Need' or 'requirement' qualified by word 'bona fide' or 'genuine' preceding as an adjective - is an expression often used in Rent Control Laws 'Bonafide or genuine need' of the landlord or that the landlord 'genuinely requires' or requires bona fide an accommodation for occupation by or use for himself is an accepted ground for eviction and such expression is often employed by Rent Control legislation draftsman. The two expressions are interchangeable in practise and carry the same meaning.

13. Chambers 20th Century Dictionary defines bona fide to mean 'in good faith: genuine'. The word 'genuine' means 'natural; not spurious; real: pure: sincere'. In Law Dictionary, Mozley and Whitley define bona fide to mean 'good faith, without fraud or deceit'. Thus, the term bona fide or genuinely refers to a state of mind. Requirement is not a mere desire. The degree of intensity contemplated by 'requires' is much more higher than in mere desire.

The phrase 'required bona fide' is suggestive of legislative intent that a mere desire which is outcome of whim or fancy is not taken note of by the Rent Control Legislation. A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contra-distinction with a mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the facts and

CFA No.25/2013 c/w CFA No.57/2016

circumstances protruding the need of landlord and its bona fides would be capable of successfully withstanding the test of objective determination by the Court. The Judge of facts should place himself in the arm chair of the landlord and then ask the question to himself- whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive, the need is bona fide. The failure on the part of the landlord to substantiate the pleaded need, or, in a given case, positive material brought on record by the tenant enabling the court drawing an inference that the reality was to the contrary and the landlord was merely attempting at finding out a pretence or pretext for getting rid of the tenant, would be enough to persuade the Court certainly to deny its judicial assistance to the landlord. Once the court is satisfied of the bona fides of the need of the landlord for premises or additional premises by applying objective standards then in the matter of choosing out of more than one accommodation available to the landlord his subjective choice shall be respected by the court. The court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited for the purpose; the court would not in such a case thrust its own wisdom upon the choice of the landlord by holding that not one but the other accommodation must be accepted by the landlord to satisfy his such need. In short, the concept of bona fide need or genuine requirement needs a practical approach instructed by realities of life. An approach either too liberal or two conservative or pedantic must be guarded against."

38.Thus, from the above it is no longer res integra that if a landlord is in

genuine and bon afide need of a tenanted portion, the tenant cannot

legally raise the issue that the space available with the landlord is

adequate. The Courts have ruled that the tenants cannot dictate upon

landlord's personal need of the tenanted premises. While making

meticulous comparison and assessment of the comparative advantages

and disadvantages of landlord and tenant, it appears to me that the

scale is tilted in favour of respondent/plaintiff. Having said that,

appeal (CFA no.25/2013) is liable to be dismissed and Cross

Objections (CFA 57/2016) are liable to be allowed and as a corollary

thereof impugned judgement and decree, granting partial eviction in

favour of plaintiff/ respondent is liable to be set-aside.