Gulam Hussain Noor Mohamad Vazir vs Jayantilal Jivraj

Chhatpar, J.—This is a revision application to revise an order of the District Judge, Bhavnagar, confirming an order of eviction of the applicant passed by the Civil Judge, Jr. Dn. Bhavnagar. The facts leading to this application are that the applicant had rented a bungalow situated in Krishnanagar at Bhavnagar from the opponent in Samvat 1993. The Opponent was a servant of the Bhavnagar State and was for some years stationed outside Bhavnagar. In the end of 1947 however the opponent learnt that he was going to be transferred to Bhavnagar. He consequently requested one Damodarbhai a mutual friend and through whose intercession the bungalow was rented to the applicant, to request the applicant to vacate the bungalow as he now required the bungalow for his own use and occupation. The opponent was ultimately transferred to Bhavnagar on 1-12-47, and he gave a notice for vacating the bungalow to the applicant at the end of January 1948 in which he required the applicant to vacate the bungalow on 12-3-48. The applicant told the opponent that he had purchased a house which he would get repaired and then he would vacate the bungalow in Vaishakh or Jeth i.e. in May or June 1948. It seems that the applicant had purchased a suitable house for himself in the beginning of 1948 but he sold that house in September 1948 at a considerable profit. Consequently the plaintiff opponent called upon him finally to vacate the bungalow by a letter dated 17-9-1948. To this letter the applicant sent a flat refusal. The opponent filed the present suit for ejectment on 28-10-1948. It may be mentioned here that the Bombay Bent Act as adapted by the Saurashtra Government was made applicable to Bhavnagarl on 28-12-1948. It is common ground that the Act applies to pending proceedings by virtue of Section 50 of the Act. The trial Court decreed the suit on 15-11-1948 holding that the plaintiff required the premises reasonably and ''bona fide'' for his own use and occupation. The trial Court also considered Clause (2) of Section 13 of the Act whether having regard to all the circumstances of the case including the question whether other reasonable accommodation was available for the landlord or the tenant greater hardship would be caused by passing the decree than by refusing to pass it and came to conclusion that greater hardship would be caused to the landlord by refusing to pass a decree for ejectment. Against this decision the applicant filed an appeal to the District Court. The learned District Judge upheld the findings of the trial Court on both the grounds and confirmed the decree merely altering the date of vacating the premises to a later date. Against this decision of the District Court the applicant has come in revision.

Mr. C.N. Shah, the learned advocate of the applicant has not challenged the finding of fact which comes under Sub-clause (g) of Section 13 Clause (1) that the premises were reasonably and ''bona fide'' required by the landlord for occupation by himself. He has only raised the contention about hardship. He has relied upon para 8 of the judgment of the District Court, which according to him contains a definite finding that the hardship to the tenant i.e. the applicant would be greater and he consequently contends that having so held, the learned Judge has erred in exercising jurisdiction in ordering eviction of the applicant, as Section 13 lays down in imperative terms that the landlord would not be entitled to recover possession of the premises unless the Court is satisfied about the various conditions laid down in that section.

The trial Court in a very elaborate judgment has discussed the various aspects of the case and taken all the circumstances into consideration relating to the ''bona fide'' requirements of the premises for the use of the landlord and also the question of hardship. The District Judge has also applied his mind to these two important questions involved in the case but in dealing with the latter question of hardship, he has stated in his judgment that it is true that looking to Section 13 Clause (2) and from the point of hardship in view of the difficulty of getting accommodation, it appeared that vacating the bungalow would involve greater hardship on the defendant but the learned Judge goes on to say that the plaintiff has been demanding possession of his bungalow from 1947; the defendant had purchased one house which he sold at a profit and thereby created a permanent difficulty for himself; after his transfer to Bhavnagar the plain-tiff could not get possession of his own bungalow for his occupation for two and half years and was obliged to live in a rented house In spite of repeated promises of the defendant-applicant to vacate the bungalow. These circumstances should receive very serious consideration and then taking all the facts into consideration the learned Judge has observed that he saw no reason to interfere with the order of eviction passed by the trial Court.

The learned advocate for the applicant has taken advantage of this observation of the learned Judge contained in the first part of para 8 of the Judgment in which he says that from the point of view of hardship it seemed that the order of eviction of the defendant would involve greater hardship but the judgment on this point has got to be read as a whole. No doubt the learned Judge observes that the hardship would be greater but at the same time he qualifies it by saying that he has to take other circumstances into consideration and ultimately comes to the conclusion that he sees no reasons to interfere with the order of the trial Court. In short the finding of the learned Judge is that although apparently the hardship on the defendant would be greater but taking other circumstances into consideration that the plaintiff wanted the premises for his own use and occupation, that the defendant had actually purchased a house for the purpose of occupying it which he sold because he got a substantial profit and looking to the promises that the defendant was making from time to time to vacate the bungalow the learned Judge accepts the finding of the trial Court stating that the hardship to the defendant was of his own creation. There is no clear unqualified finding as to hardship in favour of the applicant.

The learned advocate for the applicant has drawn my attention to Sub-clause (b), Clause (1) of Section 13 which lays down one of the conditions under which a tenant can be forced to give possession of the premises. This clause lays down that a landlord shall be entitled to recover possession if the tenant after the coming into operation of the Act, has built, acquired vacant possession of or been allotted a suitable residence. The learned advocate has argued that it is only when a tenant after the coming into operation of the Act has acquired vacant possession or has been allotted a suitable residence that he can be forced to vacate the premises. In the present case the defendant has sold the house that was purchased by him before coming into operation of the Act hence the fact of his having purchased a house for his own residence should not be considered against him. I am unable to accept this argument. Clause (b) lays down an independent condition under which a landlord becomes entitled to possession in spite of the fact that he may not require the premises for his own use and occupation. This clause gives the landlord an absolute right to obtain possession when the tenant has acquired vacant possession of or has been allotted a suitable residence but when a landlord requires the premises reasonable accommodation is available for the occupation, we have to consider all the circumstances including the question whether other reasonable accommodation is available for the landlord or the tenant. The circumstances mentioned in Clause (2) are not necessarily confined to conditions laid down in Sub-clause (b) i.e. it is only in the case where a tenant has acquired vacant procession or been allotted a suitable residence that he is liable to ejectment. If the contentions of the learned advocate for the applicant were correct Sub-clause (b) would be read as a proviso to Sub-clause (g) and Clause (2) would be nugatory. This obviously was not the intention of the framers of the Act. Under Clause (2) the Court has to consider other circumstances as well for coming to the conclusion of comparative hardship.

When the Court comes to the finding that the landlord wants the premises ''bona fide'' and reasonably for his own use and occupation, the burden of proof under Clause (2) as to the question of greater hardship on the tenant would he upon the tenant. See the cases of ''Sims v. Wilson'' 1946 1 All ER 261, ''Fowle v. Beli'' 1946 1 All ER 668, ''Robinson v. Donovan'' 1946 1 All ER 731 and the case of ''Kelly v. Goodwin'' reported in 1947 1 All ER 810. In the last referred case of ''Kelly v. Goodwin'' 1947 1 All E.R. 810, the Court of Appeal observed that the trial Court was entitled to consider on the question of hardship, the financial means of the tenant by reason of which he was in a position to obtain accommodation not merely by renting the house but by buying one and also the fact that the tenant had taken no real steps to provide himself with alternative accommodation. It may be mentioned that the English Act on this point is similarly worded in Section 13(2), Bombay Rent Act.

The question whether the circumstances mentioned in Clause (2) of Section 13 justify the making or not making the order of ejectment is one of fact. The trial Court in the present case has gone elaborately into this question. The trial Court also held that the tenant had made no ''bona fide'' attempts to get accommodation for himself. Indeed, the tenant did purchase a house which he sold at a profit, and after selling it he made no attempts to obtain other accommodation. The District Judge has also considered this aspect of the case and held that if there is any hardship to the tenant it is of his own creation and taking other relevant circumstances into consideration has come to the conclusion that the landlord should be entitled to recover possession of the premises.

The learned advocate for the applicant has contended that the Court should have entirely ruled out of consideration the question of alternative accommodation as it was impossible for the applicant to get Anr. house by reason, of the Requisition Ordinance No. 23 (XXIII) of 1948. This Ordinance merely provides that Government may requisition any vacant building for certain purposes. It does not provide an absolute bar to any individual renting a house or acquiring property otherwise. The fact of the applicant having purchased a house which he sold shortly before the filing of the suit and after he was given notice to quit by the landlord is a very material circumstance to be considered. As stated above the question of hardship on a consideration of circumstances under Clause (2) of Section 13 is one of fact. There is a concurrent finding of both Courts on this point. It cannot be said that there was no evidence before the lower Court. What weight should be placed on each relevant circumstance to be considered is a matter for the trial Court and the appellate Court the powers of the Court of revision are strictly limited. In a recent case of AIR 1949 156 (Privy Council) , the Privy Council has been pleased to lay down the limits of interference by a High Court u/s 115, Civil P. C. by observing:

This section empowers the High Court to satisfy itself upon three, matters: (a) That the order of the subordinate Court is within its jurisdiction; (b) That the case is one in which the Court ought to exercise jurisdiction; and (c) that in exercising jurisdiction the Court has not acted illegally, that is, in breach of some provision o/ law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that, it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however profoundly from the conclusions of the subordinate Court upon the questions of fact or law. There can be no justification whatsoever for the view that Section 115(c) was intended to authorise the High Court to interfere and correct gross and palpable errors of subordinate Courts. It would indeed be difficult to formulate any standard by which the degree of error of subordinate Courts could be measured.

Under the circumstances, I see no reason to interfere with the decision of the lower Court and dismiss the application with Costs.