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2001 DIGILAW 30 (JK)

Romesh Chander v. Hans Raj

2001-02-09

T.S.DOABIA

body2001
JUDGMENT 1. The only issue regarding which arguments are being addressed in this court is vis-a-vis the scope of Section 11(h) of the Jammu and Kashmir Houses and Shops Rent Control Act, 1966. This provisions requires the court to examine as to under what circumstances prayer for partial eviction is to be considered. It is urged that even though issue no. 4 was specifically framed, the courts below have not properly appreciated the scope of the statutory provisions referred to above. It is alleged that a mere observation that neither the plaintiff would be satisfied until and unless the entire shop is made available to him nor the defendants/ appellants would be able to carry on his business in half of the premises is an observation which does not satisfy the requirements of the provisions referred to above. The relevant provision is Section 11 (h). This provision reads as under: "11(h) where the house or shop is reasonably required by the landlord either for purpose of building or re-building, or for his own occupation or for the occupation of any person for whose benefit the house or shop is held; Provided that all sub-tenants in the house or shop are made parties to the suit and allowed opportunity of contesting claim to decree for ejectment. Explanation: The court in determining the reasonableness of requirement for purposes of building or re-building shall have regard to the comparative public benefit or dis-advantage by extending or diminishing accommodation and in determining reasonableness of requirement for occupation shall have regard to the comparative advantage or disadvantage of the landlord or the person for whose benefit the house or shop is held and of the tenant; Provided that where the court thinks that the reasonable requirement of such occupation may be substantially satisfied by evicting the tenant from a part only of the house or shop and allowing the tenant to continue occupation of the rest and the tenant agrees to such occupation, the court shall pass a decree accordingly and fix a proportionately fair rent for the portion in occupation of the tenant, which portion shall henceforth constitute the house or shop within clause (3) or clause (5) of section 2 and the rent fixed shall be deemed to be the fair rent fixed under section 8". 2. 2. It is not in dispute that the shop in question is having an area of 12 x 18. The front is 12 and the depth is 18 feet. The plaintiff landlord respondent had filed the suit with a plea that he requires the entire shop for carrying on his karyana business. This need of his business was found to be established. Taking into consideration this aspect of the matter, the suit was decreed. As indicated above the only issue on which arguments have been addressed are vis-a-vis the question as to whether the respondent was required to be evicted from the whole of the premises or there should be partial eviction. 3. Facts be noticed. The plaintiff had come to the court with a plea that after the demise of his father he has been called upon to look after the entire family. The family consists of the widow, two brothers and three sisters. Paras 2 and 3 of the notice sent on behalf of the respondent landlord to the appellant tenant reads as under: "2. That my client who is without any work, his father died on 9.1.1991 by an accident leaving behind the widow, two sons and three daughters, all minors. My client is the only supporting member of the whole family. 3. That my client wants to start a grocery business on this shop to fend his big family. My client has sufficient funds for this purpose". 4. It was this responsibility which was to be shouldered by the plaintiff which led the plaintiff to file the suit for eviction. He wanted to run a Grocery shop. In addition to what has been stated by him in the plaint, the stand taken in the court by the plaintiff was to the effect that the premises are required for running a Karyana shop and fordoing this business he needs the entire premises. This need of his was found to be reasonable and as indicated above a decree for eviction was passed. 5. The issue has been considered afresh. I am of the opinion that if length and breadth of the shop in question is taken into consideration it would not be just and proper to order partial eviction. The fact that there is increasing demand for consumer goods and these do require space cannot be ignored. 5. The issue has been considered afresh. I am of the opinion that if length and breadth of the shop in question is taken into consideration it would not be just and proper to order partial eviction. The fact that there is increasing demand for consumer goods and these do require space cannot be ignored. Further fact that the landlords family consists of two other brothers cannot also be ignored. 6. The genuineness of the need is to be seen and this need is never static. It varies from person to person, place to place and from profession to profession. The meaning to be given to the term need or requirement should neither be artificially extended nor its language should be unduly restricted as such a course would defeat the very purpose of the Act. At the same time the proposition that the landlord is the sole arbitrator of his need is not be accepted as the only view on the matter. There is no doubt that the subjective choice exercised in a reasonable manner by the landlord should normally be respected by the Court. Where the need for accommodation is proved the court is not to dictate the landlord to continue in the same premises. The term bonafide represents something more than a desire or wish to occupy. It is quite clear. It does not convey the idea of absolute necessity in the sense that there would be no other possible alternative for the landlord for meeting his requirements except by occupying his property. The Rent Controlling Legislation is primarily meant for protecting the tenants against the tactics of greedy and unscrupulous landlords who are taking advantages of the difficulties and helplessness of the tenants and extract exorbitant rents from them. It does not appear to be designed to penalise the owners by enabling them from occupying their own property when they bonafide require it. There is adequate provision in the Act Safeguarding against a possible abuse of the privilege or the right of eviction on their part. 7. In Mattu Lal vs. Radhey Lal, 1974 Rent Control Reporter 441 it was pointed out that mere desire on the part of the landlord is not enough but there should be an element of need and the landlord must show that he genuinely required the accommodation. 7. In Mattu Lal vs. Radhey Lal, 1974 Rent Control Reporter 441 it was pointed out that mere desire on the part of the landlord is not enough but there should be an element of need and the landlord must show that he genuinely required the accommodation. When the need can be said to be only a desire and when it is genuinely required, cannot be tested on the criteria of the absolute necessity. The meaning of bonafide requirement was considered in S.N. Datta vs. Vllth Additional District Judge, Allahabad and Others, 1984 (1) ARC 113, as follows: - "Mere desire or absolute need or necessity are both it had been held, erroneous approaches in this behalf, vide Janki Pd. vs. llnd Additional District Judge and others, 1980 (UP) RCC 602. The word bonafide means genuinely, sincerely i.e. in good faith in contradiction to malafide. A full bench of this court construed this to mean to genuinely or in good faith and conveying an idea of absence of any intent to deceive, vide Chandra Kumar Shah vs. District Judge, Varanasi, 1976 RCR 274: AIR 1976 Alld. 328: 1977 ARC 142 (FB). It will not be bonafide requirements of the landlord if release is sought for an ulterior purpose or fanciful whim, vide Dr. Sita Ram Gandhi vs. District Judge Meerut, 1978(2) All India TCJ, 326, Smt. Kamla Ahuja vs. Vllth Additional District Judge, Meerut and Others, 1981 ARC 371". 8. In Rekhachand Doorgar vs. JRD Cruz, AIR 1923 Cal. 223 Buckland-J, observed that "I do not think it is enough that a plaintiff in order to defend a plea under the Calcutta Rent Act should merely say that he desires the premises bonafide for his occupation. The word in the Act is not desires but requires. This is my opinion involved something more than a mere wish and it involves an element of need to some extent alteast". 9. The landlord in this case has been able to establish that after the death of his father he has to carry out business and the only premises which are available regarding which suit is filed. He has to support his brothers and sisters. The total family, as noticed above, consists of 07 persons i.e. widow, two brothers and three sisters. The landlord in this case has been able to establish that after the death of his father he has to carry out business and the only premises which are available regarding which suit is filed. He has to support his brothers and sisters. The total family, as noticed above, consists of 07 persons i.e. widow, two brothers and three sisters. In this situation, the landlord plaintiff has been able to demonstrate that with a view to run his business, he requires the entire premises. Therefore, the issue regarding partial eviction is found to be rightly decided. No other conclusion can be arrived at. 10. The appellant seeks time for vacating the premises. The appellant is allowed three months time to vacate the premises. This is subject to the following conditions: i) that the appellant shall furnish an undertaking to trial court that he shall hand over the vacant possession of the premises to the plaintiff, ii) that he shall not sublet the premises or part with its possession to any other person. iii) that in the event of premises being not handed over or in the event of the premises being found to be locked, the plaintiff would be at liberty to take assistance of the police and take possession of the premises. If the premises are found to be locked the good lying therein shall be deemed to have been on the superadari of the plaintiff/ respondent, iv) that the arrears of rent (if any) shall be deposited or paid to the landlord within one month alongwith future rent interest. 11. Otherwise, appeal is found to be without merit and is dismissed.