Sardar Gurbachan Singh vs Sardar Gurcharran Singh

(1) This is an appeal against a judgment and decree dated October 21, 1970, of the learned Sub Judge, (Chief Judicial Magistrate) Jammu

(reversing the Judgment and decree dated March 23rd 1970 of the Sub Registrar, Munsiff, Jammu.

(2) It appears that the plaintiffappellant claiming himself to be a legatee of Ganga Ram brought a suit for the eviction of the defendantrespondent

from a shop situate in Lakbdatta Bazar, Jammu, on the ground that he wanted to rebuild the same. The suit was resisted by the respondent interalia

on the ground that the shop was in a good condition and that there could be no question of its being required for the purpose of being rebuilt. The

trial court struck a number of issues and after recording and considering the evidence adduced by the parties, it decreed the suit on June 7th, 1968.

On appeal the District Judge, Jammu. being of the opinion that Issue No. 3 was not specific and required modification remanded the case to the

trial court on August 31st, 1968, with the direction that it should frame a fresh issue to the effect as to whether the plaintiff reasonably required the

suit shop for the purpose of rebuilding it having regard to the comparative public benefit or disadvantage. After remand the parties examined some

witnesses where after the trial court again decreed the suit in favour of the plaintiff appellant on August 28th, 1969. Against this judgment and

decree of the trial court the respondent preferred an appeal before the District Judge Jammu, who by his judgment dated 21st 1970, accepted the

same, set aside the judgment and decree of the trial court and directed that a fresh decision with regard to both parts of issue No 3 namely whether

the plaintiff reasonably required the suit shop for rebuilding and whether the reconstruction would be in public interest, be given The trial court

accordingly reconsidered the matter and again decreed the suit in favour of the plaintiff by its judgment dated March 25th, 1970. Against this

judgment and decree the defendant preferred an appeal to the Sub Judge (Chief Judicial Magistrate) Jammu, who had by then been invested with

appellate powers under Section 34 of the civil courts Act. 1977 (1920 A. D ) The learned Sub Judge being of opinion that the suit shop was in

good condition, that it could withstand the weight of the second storey after minor repairs, that the plaintiff raised two more storeys on the shop the

advantage will be to him alone and not to the public and the defendant would be put to a great hardship held that the plaintiff did not reasonably

require the shop for being rebuilt. . Accordingly he set aside the judgment and decree of the trial court by his judgment dated October 21st, 1970.

It is against this judgment and decree that the plaintiff has come up in appeal to this court.

(3) Appearing on behalf of the appellant Mr. Amar Chand has urged that the shop in question is about fifty years old, that taking into consideration

the condition of the shop it requires to be rebuilt, that the plaintiff has got the plans sanctioned by the Municipality, that he wants not only to rebuild

the shop but also wants to put up two more storeys on in with a view to extending the accommodation and that he has got the means to do it. He

has further contended that according the Explanation to Section 11 (h) of the Jammu and Kashmir Houses and Shops Rent Control Act hereinafter

referred to as 'The Act' the court has only to determine the reasonableness of the requirement having regard to the comparative public benefit or

disadvantage by extending or diminishing the accommodation, that it is not required to have regard to the comparative advantage or disadvantage

of the landlord and the tenant which iand that the learned Sub Judge has erred in adverting to this aspect of the matter.

(4) Mr I. K. Kotwal has on the other hand contended that the appellant has not established that he reasonably requires the shop for rebuilding

having regard to the public benefit or disadvantage. He has not, however, disputed the correctness of the last contention of Mr. Amar Chand

(5) The last contention rarised by Mr. Amar Chand and the concession made by Mr. I. FC. Kotwal appears to me to be well founded in view of

the clear and plain language of the Explanation to Section 11 (h) of the Act and the matter ""does not require any further elucidation. The learned

Sub Judge has, therefore, manifestly erred in adverting to the comparative advantage or disadvantage to the parties resulting from the eviction of

the defendant and giving a finding in regard thereto.

(6) The only question that remains therefore to be determined by me in this appeal is whether the shop is reasonably required for rebuilding by the

plaintiff having regard to the public benefit or disadvantage by extending or diminishing the accommodation. In deciding this question the condition

of the premises is not a relevant consideration as the words used in Section 11 (h) of the Act are not that the house or shop requires reconstruction

or reerection but the words used are ""the home or shop is reasonably required by the landlord for the purpose of building or rebuilding. What is

essential therefore to be considered is not the state of the building but the state of mind of the landlord, I am fortified in this view by the judgment of

the Calcutta High Court in Bhualan Singh Vs. Ganondra Kumar Roy Chowdry. AIR 1950 Calcutta, 74. where a division bench of that court

consisting of Harries C. J and Sinha J. held:

Proviso (f) to S. 11 (1) of the Act (West Bengal Premises Rent Control) Temporary Provision, Act XXXVIII (38) of 1948) does not mention

premises requiring rebuilding. What it states is that subsection (1) shall have no application if the landlord requires the premises bonafide for

rebuilding. The state of the premises therefore is not an essential factor in the case.

The premises are bonafide required by the landlord for the purpose of rebuilding if the landlord honestly requires them for the purpose. The

equivalent of the phrase ""bonafide"" is '""honestly"". It refers to the state of the landlord's mind The landlord, therefore, will be entitled to possession

as against the tenant if he establishes that he honestly requires the premises for rebuilding. It cannot be inferred that the landlord's intention was not

honest merely because he had not got permits for cement and steel before he brought the ejectment suit against the tenant. If he honestly believed

that the steel and cement would be available the moment he was in a position to use such materials, Then he would be acting perfectly honestly in

bringing the suits.

(8) There is a considerable difference between what a landlord has to establish when he sets out to prove that he reasonably requires premises for

his own occupation and when he sets out to prove that he requires premises bonafide for rebuilding. A man who could be satisfactory

accommodated in three or tour rooms cannot possibly 'honestly' require twenty rooms for his occupation, whether the landlord really needs the

accommodation is a test of his honesty.

(9) If a landlord genuinely intends to rebuild an old and somewhat dilapidated premises and has the means to do so, it can be said that he bonafide

requires the premises for rebuilding, because they cannot be rebuilt until he obtains possession and demolishes the existing structure.

Reference may also be usefully made to R. V. N. Chandrasekara V. Kakumani Adikesavalu Chatty Charities, AIR 1966 Madras 14 where it was

held:

''When a landlord makes an application for the eviction of a tenant on the ground that he requires the premises bonafide for the purpose of

immediate demolition and reconstruction under Section 14(1) (b) of the Madras Act 18 of 1960 he need not prove that the building is in a

dangerous or dilapidated condition and for the immediate purpose is its demolition for the purpose of reconstruction. The Act provides that the

landlord should prove his bonafide or good faith and not that the proposed alteration, improvement or construction is necessary to maintain the

safety of the building. The Act nowhere shows that an owner is entitled to pull down a building only when it is hopelessly old and then to build a

new structure thereon. If this were so, it would mean that the owners of fairly substantial buildings would not be allowed to erect new buildings with

modern requirements and develop their properties fully.

(10) Whenever the landlord files an application requiring the building for being demolished or reconstructed the word ""bonafide"" in S. 14(1) (b)

plays an important part in the minds of the deciding authority. ""Bonafide"" may be proved in any ordinary way like any other fact in issue or relevant

fact.

(11) The Judge has to take every circumstance which affects the interests of the landlord and the tenant as well as the interests of public, at the

date of hearing, into consideration. The landlord has to satisfy the court that his requirement is a reasonable and bonafide one, that he has prepared

the plans and necessary estimates for the new building, that he has obtained the necessary sanction of the corporation or the Municipal Authorities

and that he has got the necessary funds to carry out such reconstruction.''

(12) Reference with advantage may also be made to M/s Panchmal Naravana Shenoy Vs. Bastbi Venkatesha Sheony, AIR 1971 Supreme Court,

912, where their Lordships of the Supreme Court held:

A landlord who seeks recovery of possession of premises under clause (j) of proviso to Section 21 of the Mysore Rent Control Act, must satisfy

the court that he reasonably and bonafide requires the premises for the immediate purposes of demolishing it and erecting a new building in the

place of the old one. Whether the landlord's requirement of the premises for the purpose of rebuilding is reasonable and bonafide has to be judged

by the surrounding circumstances, which will include his means for reconstruction of the building and other steps taken by him in that regard. So

also the desire of the landlord to put the property to a more profitable use after demolition and reconstruction is also a factor that may be taken

into account in favour of the landlord. It is not necessary that the landlord should go further and establish under this clause that the condition of the

building is such that the condition immediate demolition.

(13) In view of these authorities, the learned Sub Judge misdirected himself in concentrating on the condition of premises. Be that as may, the fact

that the suit shop is about 40 to 50 years old and is in a very dilapidated condition is clear not only from the testimony of the plaintiff and his

witnesses namely Chum Lal, Thakur Dass and Ram Prakash, but is also clear from the statements of D. Ws Hari Ram, Abdul Majid and Rotnesh

Chand. Even Teerath Singh, retired Municipal Engineer, on whose testimony great reliance has been placed by the lower appellate court has

clearly admitted that the shop is 40 to 50 years old and its present condition can only sustain the weight of an ordinary structure of one storey

meaning thereby that it can not sustain the weight of two additional storeys sought to be put up by the plaintiff. The defendant himself has also

admitted that the building is 40 to 50 years old. It is also clear from the statement of the plaintiff and his witnesses Chuni Lal and Ram Parkash as

also from the statements of the defendant and his witnesses Abdul Majid and Raj Kumar (see pages 42, 39 and 40 of the trial court file). That the

plaintiff is a man of substance and has got the means to reconstruct the shop. It is further proved from the statement of Ram Nath P. W. that the

plaintiff has got permission from the Administrator, Municipality, Jammu, to rebuild the shop. It is also established from the statements of Kundan

Lal, Kaka Ram and Charran Dass P. Ws. and Abdul Majid D. W. that the rebuilding of the suit shop would result in extension of accommodation

and 'would be conducive to the public benefit (see pages 86, 89 and 90 and 116 of the trial court file). Taking in to consideration all the

surrounding facts and circumstances, 1 am of opinion that the plaintiff has succeeded in satisfying the requirement of Section 11 (h) of the Act and

proving that he reasonably requires the shop for the purpose of rebuilding.

(14) For the foregoing reasons, I allow this appeal set aside the judgment and decree of the lower appellate court and restore that of the trial court.

In the circumstances of the case I leave the parties to bear their own costs of this appeal.