@JUDGMENTTAG-ORDER
Mishra, J.@mdashThe instant petition is the culmination of a proceeding for eviction of the petitioner on the ground that he has been a subtenant in
the premises and that the landlord-first respondent herein needed the premises by way of additional accommodation for his business purposes. The
landlord initiated the proceeding by a petition under S. 10(2)(ii)(a) and under S. 10(3)(c) of the Pondicherry Buildings (Lease and Rent Control)
Act, hereinafter referred to as the Act, imp leading the tenant N. Subbarayalu and the petitioner calling him a sub-tenant. The trial Court found in
favor of the landlord on both counts and ordered for eviction. The Court of appeal below, however, has reversed the finding as to the sub-tenancy,
but found in favour of the landlord that he needed the additional accommodation bona fide and thus affirmed the order of eviction. Facts that seem
to be undisputed are, that the landlord first respondent herein leased out the demised premises in favour of N. Subbarayalu on a monthly rent of
Rs. 1,050/- for a period of three years. According to the landlord, N. Subbarayalu was running a shop in the demised premises, but later sublet the
same in favour of the second respondent for a higher rent without his consent and knowledge. The second respondent in the trial court, petitioner
herein, started running a business in the name and style of Nagarajan Traders, and thus since the demised premises was sublet by the tenant, the
landlord became entitled to evict him. The landlord further alleged that he was running a textile shop under the name and style of V.S.T. Textiles in
a portion of the building which consisted of four shops, one being in possession of the sublease, petitioner herein. He desperately needed
expansion of bus business premises, and thus additional accommodation could be found only in the shop in the occupation of the tenant. The
second respondent in the trial Court petitioner herein, who alone contested the proceeding, denied the sublease and disputed the landlord''s claim
of necessity of the demised premises for additional accommodation for his textile business. He has stated inter alia that the demised premise was
taken on lease by Thirumurugan Enterprises in 1983, in which Enterprises he was a partner. In the year 1986, the rent was enhanced to Rs.
1,050/-, and an amount of Rs.10,000/- was paid as advance. The partners of Thirumurugan Enterprises changed continuously from 1983 to 1986.
This Enterprise was dissolved in the year 1987 followed by a new venture by him, who was a partner in Thirumurugan Enterprises, in the name and
style of Nagarajan Traders. This was within the knowledge of the landlord. The landlord accepted rent from him without any protest or demur, and
the petition for eviction for that reason was not in good faith.
2. On the question of sublease, the Court of appeal below has said as follows:
On the first point, the learned counsel for the appellant would argue that in this case there is no sub-lease at all, because the appellant himself was a
partner in the business which was run in the name and style of Thirumurugan Enterprises from 1983 onwards. The partnership was dissolved and
this appellant who was one of the partners continued to run the business under a different name. Under these circumstances, I do not think there is
any sub-lease- The appellant was admittedly a partner in the business which was started in 1983 and the other partners have come out of the
partnership firm and this appellant converted the business into another under the name and style as Nagarajan Traders. Mere change of business
will not create a sublease. On the other hand, if a new person is inducted in the demised premises to conduct separate business, then it may amount
to sub-lease. But that is not the case. As admitted by the landlord, the appellant himself was a partner in the original business started in the year
1983 and he continues to run the business under a different name, which cannot be any stretch of imagination be construed as sub-lease.
On the question of compelling necessity of additional accommodation for expansion of the landlord''s business, the court of appeal below has said
as follows:-
Coming to the second point it is an admitted fact that the landlord/petitioner is carrying a textile business under the name and style of V. S. T.
Textiles Showroom (A/C) which is situated adjacent to the demised premises. The building as such where the demised premises is situated consists
of four shops situated side by side. It is also admitted by the appellant that the petitioner landlord has filed eviction proceedings against the other
two tenants who have occupied the other two premises which are situated next to the demised premises. The appellant has also admitted that the
upstairs portion is supported by beams and not by separate walls dividing the said shop and the demised premises. Therefore, it is a clear case
where easy access can be had by demolishing the wall or has an opening, through the wall separating the shop and the demised premises. The
appellant has also admitted in his cross-examination that the demised premises is more spacious than the premises presently occupied by the
petitioner who is running his business and who is now forced to expand his business on account of high demand of the customers and the
competition in the trade. The business of the landlord can only be expanded if the demised premises are annexed to the premises occupied by the
landlord. It is not the case of the landlord that the tenant had failed to pay enhanced rent or that he has been paying irregularly the rent or that he
has been a tenant who is not accommodative to him. The landlord has come with a specific case that his present business has to be expanded and
that can only be done by getting the demised premises vacated. It is not with any mala fide intention that he has asked for eviction. The evidence of
the petitioner shows that great hardship he has been experiencing since he could not accommodate the heavy influx of the customers and he wants
to open a separate section for exhibiting and selling silk screeds. This aspect is not challenged by the respondent. As a matter of fact, the appellant
himself has admitted that the other leading textile shop like Seematti etc, are housed in a spacious premises and if the premises of his landlord is
expanded, he can do better business. The bona fide requirements of the landlord is not only proved by his own evidence, but it is also indirectly
accepted by the appellant herein: Under such circumstances, when the landlord comes with a bona fide intention and proves his necessity to get the
demised premises for expanding his business it can only be done by eviction on the ground of additional accommodation and the tenant cannot
resist the demand of his landlord. It is true that the tenant will face some hardship in shifting his business. But by weighing the hardship of the tenant
with the bona fide requirement of the landlord, the law in such case can only come to the rescue of the landlord who has come with good intention.
A showroom requires some space and it is the admitted case of both the landlord and tenant that the premises presently occupied by the landlord
is very much inadequate and there is no place to have any showroom and now in the place where there is heavy competition in the market in the
selling of textile goods, naturally one has to strive and complete with others to make all sorts of display in order to attract the customers. A
showroom is a must to attract the customers, and this requires additional space and to fulfill this, the landlord does require the demised premises
for additional accommodation and the demised premises being situated adjacent to the present premises, it can easily be annexed and enlarged and
can be converted into a single premises for running the business. Once the landlord has proved his bona fide intention for additional
accommodation, the tenant cannot resist the petition.
3. While the petitioner has questioned the correctness of the finding of the trial Court on the question of the personal necessity of the landlord, the
finding upon which eviction has been ordered by the Court of appeal, learned counsel for the first respondent - landlord has on the one hand
contended that this finding is correct and fully warranted on the proved facts in the instant case and on the other, questioned the correctness of the
finding of the Court of appeal below on the question of sublease. My attention has been drawn to S.10(1) of the Act, which says that the tenant
shall not be evicted except in accordance with the provisions of this Section or Ss.14 to 16, and it is contended by learned counsel for the
petitioner that under sub-S. 3 of S.10 of the Act, the Controller could direct the tenant to put the landlord in possession of the building in question
(since it is a non-residential building) without recording a finding that the claim of the landlord was bona fide and that the hardship caused to the
tenant did not outweigh the advantage to the landlord. He has submitted that it is on the record that the landlord proceeded to evict the other
tenants in occupation of different parts of the building and succeeded in evicting them, thus having the accommodation which they had, added to
the original accommodation in which the shop or business was is located and decided to induct the tenants in such additional accommodation
becoming available, but insisted to evict the petitioner on the ground of personal necessity. This fact, according to learned Counsel for the
petitioner, is enough to find that the requirement of the landlord is not bona fide and or in any case the landlord did not bring to the court a true fact
of the case, but twisted facts to suit his interests to evict a tenant who had been running the business originally as a partner with others and later
alone as the owner of a business enterprise. Besides, according to learned counsel, a business which the petitioner had in the premises has been
annihilated on account of the decree for eviction, a hardship which no Court should ignore and which must outweigh the advantage the landlord
may have in expansion of his business, for according to him, the rule is live and let live"" and not to make the tenant suffer a complete annihilation to
accommodate a landlord who had a good business already, but who wanted further expansion.
4. The Act avowedly to regulate the letting of residential and non-residential buildings and the control of rents of such buildings and the prevention
of unreasonable eviction of tenants there from"", as has been noticed above limited eviction of tenants only in accordance with the provisions of S.
10 thereof or Ss. 14 to 16. The instant case is, however one in which eviction is sought on the ground of the tenant allegedly subletting the premises
to another without the consent or the knowledge of the landlord and for the reason of the landlord occupying a part of the building, he required
additional accommodation for the purpose of a business, which he has been carrying on. I shall advert to the first ground later, for the Court of
appeal below has rejected the case of the landlord on that ground, and first deal with the second ground. The second ground is covered by Clause
(c) of sub-S.(3) of S. 10 of the Act. Clause (e) of Sub-S.(3), however, reads as follows:-
The Controller shall, if he is satisfied that the claim of the landlord is bona fide, make an order directing the tenant to put the landlord in possession
of the building on such dale as may be specified by the controller and if the Controller is not so satisfied he shall make an order rejecting the
application; Provided that, in the case of an application under clause (c), the Controller shall reject the application if he is satisfied that the hardship
which may he caused to the tenant by granting it will outweigh the advantage to the landlord:
Provided further that the Controller may give the tenant a reasonable time for putting the landlord in possession of the building and may extend such
time so as to exceed three months in the aggregate
A mere glance to the provision in Clause (e) of Sub-S.(3) to S.10 would convince that without there being a finding as to satisfaction that the claim
of the landlord is bona fide, no order to evict the tenant can be made; and even if it is found that the claim of the landlord is bona fide, unless it is
further found that the hardship which may be caused to the tenant by granting eviction will not outweigh the advantage to the landlord, eviction
cannot be ordered if the ground is requirement of additional accommodation falling under Cause (c) of sub-S.(3) of S.10 of the Act.
5. A Bench of the Supreme Court in Smt. Smriti Marthand Vs. District Judge of Kumaun, Nainital and Others, has stated how the relative
hardship of tenant and landlord should be examined by a Court. The Supreme Court has stated:
The only question which arises in this appeal for consideration is whether High Court be right in taking the view that the comparative hardship of
the landlord and the tenant was not required to be taken into account since Rule 16(1) was ultra vires of the Act. This question need not detain us,
since subsequent to the Tiling of the appeal, S.21 of the Act has been amended with retrospective effect by introduction of a proviso, which
requires that comparative hardship of the landlord and the tenant should be taken into account in the light of the factors prescribed by the rules, in
the determination of the question whether or not an order of eviction should be made against the tenant and Rule 16 has been retrospectively
validated by S.27 of the Amending Act. It is, therefore, obvious, that the learned District Judge as well as the Prescribed authority were liable to
take into account the comparative hardship of the landlord and the tenant and the High Court was in error in taking the view that the Judgment of
the District Judge could not be quashed simply on the ground that the hardship of the tenant was neither considered nor compared. On this view,
we would have ordinarily remanded the case to the High Court but it would be an idle formality to do so, since the District Judge has also not
taken into account the comparative hardship of the landlord and the tenant, and even if the matter is remanded to the High Court, the High Court
would have to set aside the judgment of the District Judge and remand the case to the District Judge. This step can be by passed in the interest of
expedition and we accordingly allow the appeal, set aside the order of the High Court as also the Judgment of the District Judge and remand the
case to the District Judge with a direction to dispose it of in the light of the amended S.21 read with Rule 16.
6. In another judgment in Purushottam Das Vs. The VIII Additional Distt. and Sessions Judge, Allahabad and Others, , the Supreme Court has
dealt with the effect of a Proviso as to the hardship to the tenant and the Likely hardship to the landlord in these words:
In view of this proviso it is now obligatory on the Prescribed Authority and appellate authority to lake into account the comparative hardship of the
landlord and the tenant and for that purpose to have regard to such factors as may be prescribed by the Rules in deciding whether or not to pass
an order of eviction.
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The learned District Judge as well as the Prescribed Authority were therefore bound to take into account the comparative hardship of the landlord
and the tenant in the light of the various factors set out in Rule 16 while considering whether or not an order of eviction should be passed. The High
Court ought in the circumstances, to have examined the contention of the appellant that the comparative hardship of the landlord and the tenant in
the light of the factors set out in Rule 16 was not taken into account by the Prescribed Authority and the learned District Judge.
7. In Bhaichand Ratanshi v. Laxmishanker Tribhovan AIR 1981 S.C.1690, the Supreme Court interpreted a Provision in the Bombay, Rents,
Hotel and Lodging House Rates Control Act, 1947, and observed as follows:
The Legislature by enacting S.13(2) of the Act seems to strike a just balance between the landlord and the tenant so that the order of eviction
under S.13(1)(g) of the Act does not cause any hardship to either side. The considerations that weigh in striking a just balance between the
landlord and the tenant were indicated in a series of decisions of the Court of appeal, interpreting an analogous provision of the Rent and Mortgage
Interest Restrictions (Amendment) Act, 1933, (c32), S3(1), Schedule I, para (h): Sims v. Wilson 1946 2 All ER.261: Fowle v. Bell 1946 2 All ER
668: Smith v. Penny (1946) 2 All ER 672, Chandler v. Steven (1947) 1 All ER164 and Kelley v. Goodwin (1947) 1 All ER810. One of the most
important factors in considering the question of greater hardship is whether other reasonable accommodation is available to the landlord or the
tenant. The Court would have to put in the sale other circumstances which would tilt the balance of hardship on either side, including financial
means available to them for securing alternative accommodation either by purchase or by hiring one, the nature and extent of the balance or other
requirement of residential accommodation, as the case may be. It must, however, be observed that the existence of alternative accommodation on
both sides is an important but not a decisive factor. On the issue of greater hardship the English Courts have uniformly laid down that the burden of
proof is on the tenant. We are inclined to the view that on the terms of S.13 (2) of the Act, the decision cannot turn on mere burden of proof, but
both the parties must lead evidence. The question whether or not there would be greater hardship caused to the tenant by passing the decree must
necessarily depend on facts and circumstances of each case
8. In Om Prakash Vs. Bhagwan Das, the Supreme Court, however, observed:
A plain reading of S.21(1) (a) of the Act read with the 4th Proviso thereto and Rule 16(1 )(f) shows that the scheme under the Act is the same.
One of the factors prescribed by Rule 16(1)(f) is that if the landlord applied for ejectment of the tenant on the ground that the accommodation is
bona fide required by him for his use and the members of his family and if the landlord offers reasonably suitable accommodation to the tenant for
the needs of his family, the landlord''s claim for eviction shall be considered liberally. In the present case, the Prescribed Authority and the II
Additional District Judge both, after considering the comparative hardship likely to be caused to the tenant and the landlord, recorded a finding that
on the refusal of the application, the landlord would be put to greater hardship.
There was no infirmity in the order of the Prescribed Authority or that of the learned II Additional District Judge. The refusal of the application of
the landlord under S.21(1)(a) of the Act would undoubtedly cause greater hardship to him as that would deprive of his beneficial enjoyment of his
own property. In such a case it could not be said that the landlord had not fulfilled the requirement of the 4th proviso to S. 21(1)(a) of the Act. The
High Court obviously committed an error in interfering with the findings of the prescribed Authority and the learned Additional District Judge on the
ground that the landlord had failed to fulfill the requirements of the 4th Proviso to S. 21(1) (a) of the Act.
The above observations were given by the Supreme Court in the case of eviction of a tenant under U.P. Urban Buildings (Regulation of Letting,
Rent and Eviction) Act, 1972.
9. The judgment of the Supreme Court in the case of Phiroze Bamanji Desai Vs. Chandrakant N. Patel and Others, , in respect of the provisions in
Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, in my view, is relevant for understanding how the High Court should view the
determination of the question of the bona fide requirement of the landlord and the examination of the question of hardship of the tenant compared
to the advantages of the landlord. To recapitulate the facts of the case that are fully stated in the judgment of the Supreme Court, it will be useful to
extract two paragraphs of the said judgment:
Now, the decision of the District Judge was base on, two findings recorded by him in favors of the appellant. One was that the appellant
reasonably and bona fide required the ground floor premises for his own use and occupation, and the other was that greater hardship would be
caused to the firs; respondent by passing a decree for eviction than what would be caused to the appellant by refusing to pass if. Both these
findings were interfered with by the High Court and the question is whether the High Court was within its power in doing so. Taking up first for
consideration the finding that the appellant reasonably and bona fide required the ground floor premises for his own use and occupation, it may be
pointed out straightway that this finding was clearly one of fact. The District Judge did not misdirect himself in regard to the true meaning of the
word ""requires"" in S. 13(1)(g) and interpreted it correctly to mean that there must be an element of need before a landlord can be said to ""require
premises for his own use and occupation. It is not enough that the landlord should merely desire to use and occupy the premises. What is
necessary is that he should need them for his own use and occupation. This was the correct test applied by the District Judge to the facts found by
him. If he had applied a wrong test on a misconstruction of the word ''requires'' the finding recorded by him would have been vitiated by an error
of law. But the correct test having been applied, the finding of the District Judge that the appellant reasonably and bona fide required the ground
floor premises for his own use and occupation was unquestionably and bona fide required the ground float premises for his own use and
occupation was unquestionably a finding of fact and it was not competent to the High Court in the exercise of its re-visional power under S. 29,
sub-S.(3), to interfere with this finding by re-appreciating the evidence. But, though such an exercise was not permissible, the High Court
embarked on a reappraisal of the evidence and taking the view that the finding of fact reached by the District Judge was not correct, substituted its
own finding of fact in place of that reached by the District Judge. That was clearly outside the scope and ambit of the re-visional power of the High
Court under S. 29, sub-S.(3).
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9. So far as the finding on the question of greater hardship is concerned, the District Judge decided against the respondents on the view that as
soon as the landlord establishes that he reasonably and bona fide requires the premises for his own use and occupation, the burden of proving that
greater hardship would be caused by passing a decree for eviction than by refusing to pass it is on the tenant and if the tenant fails to discharge this
burden by producing proper evidence; a decree for eviction must go against him. This view in regard to the burden of proof, no doubt, prevailed at
one time in various High Courts on the basis of the decision of the Court of Appeal in England in Kelly v. Goodwin (1947) I All.ER810 but it can
no longer be regarded as correct after the decision of this Court in M/s. Central Tobacco Co. v. Chandra Prakash Civil Appeal No.1175 of 1969
Dt. 23.4.1969 - (reported in A.I.R.1969 NSC 88. This Court speaking through Matter, J., pointed out in that case, while discussing S. 21(4) of
the Mysore Rent Control Act, 1961, and what was said there must apply equally in relation to S. 13(2) of the Bombay Rent Act, which is in
identical terms:
We do not find ourselves able to accept the broad proposition that as soon as the landlord establishes his need for additional accommodation he
is relieved in all further obligation under S. 21 sub-S.(4) and that once the landlord''s need is accepted by the Court all further evidence must be
adduced by the tenant if he claims protection under the Act; Each party must adduce evidence to show what hardship would be caused to him by
the granting or refusal of the decree and it will be for the Court to determine whether, the suffering of the tenant, in case a decree was made, would
be more than that of the landlord by its refusal.
The whole object of the Act, is to provide for the control of rents and evictions, for the leasing of buildings etc., and S. 21 specifically enumerates
the grounds which alone will entitle a landlord to evict his tenant. Cl.(h) of S. 21 contains one of such grounds, namely, that the premises are
reasonably and bona fide required by the landlord for occupation by himself. The onus of proof of this is certainly on the landlord. We see no
sufficient reason for holding that once that onus is discharged by the landlord it shifts to the tenant making it obligatory on him to show that greater
hardship would be caused to him by passing the decree than by refusing to pass it. In our opinion both sides must adduce all relevant evidence
before the Court; the landlord must show that other reasonable accommodation was not available to him and the tenant must also adduce evidence
to that effect. It is only after sifting such evidence that the Court must form its conclusion on consideration of all the circumstances of the case as to
whether greater hardship would be caused by passing the decree than by refusing to pass it.
It is, therefore, clear that the District Judge placed the burden of proof wrongly on the respondents and the finding of fact arrived by him on the
question of greater hardship was vitiated by a mistake of law. The High Court was consequently justified in interfering with the finding recorded by
the District Judge and arriving at its own finding on the basis of the correct principle laid down by this Court. But the High Court, in our opinion, fell
into an error in appreciating the evidence and coming to the conclusion that greater hardship would be caused to the first respondent by passing a
decree for eviction than by refusing to pass it. There was no evidence at all to support this finding reached by the High Court. The evidence was
entirety the other way. The appellant stated in his evidence that he would suffer considerable hardship both financial and in the way of his
profession if he was denied possession of the ground floor premises. This was true because the entire field of work of the appellant was now
confined to South Gujarat and it was obvious that he would be able to carry on his profession conveniently, economically and with advantage, if he
could live in Navarra which is situate in South Gujarat. Moreover, in view of the shift in his field of work from Bombay to South Gujarat, it was
unnecessary for the appellant to continue to live in Bombay and pay a high rent of Rs.475/- per month which was a serious drain on his purse.
There can, therefore, be no doubt that if a decree for eviction were not passed in his favors, the appellant would suffer real hardship. Now, as
against this evidence on the part of the appellant, no evidence at all was led on behalf of the respondents to show that the 1st respondent would
suffer any hardship if a decree for eviction were passed against him. The evidence, thus, was only in one direction and it unquestionably established
that greater hardship would not be caused to the first respondent by passing a decree for eviction than what would be caused to the appellant by
refusing to pass it. The High Court was, therefore, clearly wrong in reversing this finding of fact recorded by the District Judge.
10. What follows from the authoritative pronouncements of the Supreme Court on principles that the competent authority and the Courts should
follow in cases of examination of the question of bona fide requirement of the landlord and the comparative hardship are: (1) It is necessary to see
that there must be an element of need before the landlord can be said to require the premises for his own use and occupation and not a desire to
use and occupy the premises: and (2) the landlord must show by reliable evidence that the premises are reasonably and bona fide required by him
and it would be wrong to say that the onus thereafter will shift upon the tenant to show that he would suffer greater hardship if he were to be
evicted than the hardship which the landlord would suffer if additional accommodation is not made available to him.
11. M.N. Chandurkar C.J., in Yousuff Sait & Sons v. A. Shafeeq Ahamed 100 L.W.278, has said in no uncertain words that in the case of a suit
for eviction under the Tamil Nadu Buildings (Lease and Rent Control) Act, the landlord should come out with a clear case that the accommodation
available to him is insufficient for his use, and for the purpose of proper adjudication of the claim of the landlord, he must set out as to why the
accommodation is insufficient, and added:
There can be no doubt that if the owner of an accommodation is able to establish that the accommodation available or his occupation is insufficient,
he could bona fide claim accommodation in the possession of his tenant by way of additional accommodation. But if this has to be done, the
landlord should come out with a clear case that the accommodation available to him is insufficient for his use'' and for the purpose of proper
adjudication of the claim of the landlord, the landlord must set out as to why the accommodation is found to be insufficient. Firstly, in the instant
case, there is not even a statement in the original petition that the premises in the first floor are insufficient for his accommodation. This case is
sought to be made out only at the stage of evidence and the spacious ground which is sought to be made in the evidence is that guests and relatives
often visit the landlord and the landlord has to give proper accommodation for them. If such a case is not made out, in the original petition, it is
difficult to see how such evidence could be given at the trial. All relevant facts on which the landlord claims that the accommodation in his
occupation is insufficient for his needs must be properly set out, so that the tenant knows what case he has to meet. On the vague allegation like the
one made in the instant case, the landlord cannot succeed by stating for the'' first time in evidence that he has to make arrangements for the visiting
customers and relatives. The averment in the original petition is merely that the landlord is in possession of the first floor and hence he requires the
ground floor as additional accommodation, so that he could occupy the entire premises for his residential use. Merely because the landlord desires
to occupy the entire building for his own use, a tenant cannot be evicted. A tenant can be evicted only if the accommodation which is already in the
possession of the landlord is insufficient for his needs.
It is sought to be argued that the landlord wanted to leave the old family house only after the death of his father. The learned counsel, however,
could not find any material to show as to when the father died. It is obvious, therefore, that the landlord had allowed the premises in the first floor
to lie Vacant without making any effort to occupy it and he has now come to the Court with the case that he wanted to occupy the entire building.
His mere desire to occupy the entire building cannot be equated with a need to occupy it, which he has to prove independently. The Small Causes
Court and the Appellate Authority seem to have been influenced merely by the fact that the respondent has stated that he was accustomed in
aristocratic way of life. Assuming that this is so, he has still to show that the first floor is insufficient for his needs by the standard by which he is
accustomed to live. Of this, there neither any pleading nor any evidence
12. A learned single Judge of this Court in Veera Manikandan v.A. K. Chakrapani 100 L.W.774 has spoken again on the principles that should
be applied in the case of bona fide need of additional accommodation, and stated that the subsequent event of the respondent having obtained a
decree of eviction against the tenant has to be taken into consideration, and the further question whether the need of the first respondent even after
getting a decree against a neighboring tenant could be taken to have been satisfied so as to disentitle him from getting an order of eviction, has also
to be considered. For making the above statement, the learned Judge relied upon a judgment of the Supreme Court in Variety Emporium, M/s. v.
V.R. M. Mohammed V.Ibrahim Naina 98 L.W.25 S.C., That was a case in which the landlord sought eviction of seven different tenants, four of
whom occupied the shop premises on the ground floor and the other three occupied residential premises on the first floor of the building situate in
Madras. The premises were sought for under S. 10(3)(a)(iii) of the Tamil Nadu Act, similar to the provision of the Pondicherry Act under similar
to the. provision of the Pondicherry Act under consideration by me, on the averment that the landlord who was the respondent in the Supreme
Court and who was carrying on wholesale business in textiles in rented premises in Go-down Street, wanted to close down this business in Go-
down Street and start a retail business in his premises, and sought eviction of the seven tenants therein. The Competent Authority, the Appellate
Authority and the High Court or dared eviction. The Supreme Court found that since subsequent to the initiation of eviction proceedings, the
landlord had obtained decrees for possession against three out of the four tenants on the ground floor and one out of the three tenants on the first
floor, there was no justification for evicting the remaining tenant who was the appellant before the Supreme Court, since the landlord''s requirement
would be more than adequately met by the eviction of those four tenants. Similar views as above are found expressed by the Supreme Court in
Hasmat Rai and Another Vs. Raghunath Prasad,
13. It has not been disputed before me that subsequent to the application for eviction of the petitioner herein, the landlord obtained eviction and
possession of other shops located in the building. He, I is said, has inducted new tenants therein. A new case has thus developed, in which it is
stated, that the landlord wanted the ground floor only, and not the first floor for the expansion of his show room, and thus, his need was not
satisfied by the eviction of the other tenants or the premises which he had let out to other tenants.
14. I have quoted the findings of the Court of appeal below on this question. It is not possible to give credence to the statement in the appellate
judgment that the requirement of the additional space by the landlord has, however, been conceded by the tenant. The tenant disputed this claim of
the landlord and contested it even to the extent of indicating that having obtained additional accommodation in the same building; the landlord had
satisfied his need. Indeed, how the accommodation has been found inadequate in possession of the landlord when his shop and the show room that
existed could can be expanded to the additional accommodation that the landlord obtained, however has not been gone into by the Court of
appeal below or the Rent Controller. On the question of comparative hardship, it is almost no consideration at all when it is said in the appellate
order that the landlord does require the demised premises for additional accommodation and the demised premises being situated adjacent to the
present premises, it can easily be annexed and enlarged and can be converted into a single Premises for running the business. Once the landlord
has proved his bona fide intention for additional accommodation, the tenant cannot resist the petition."". This is an erroneous view of the law. The
Court of appeal below was required to take notice of the evidence adduced on behalf of the landlord and see whether there has been any chance
of undue hardship to the tenant, whereas no hardship would be caused to the landlord. This the Court of appeal below has not done at all.
15. On the question of sublease, however, there is need for a fresh look. The tenancy in the hands of a partnership firm on its dissolution must
come to an end. It possibly cannot continue in another partnership. The two are different and separate legal entities. How then Thirumurugan
Enterprises converted itself into Nagarajan Traders is not explained. It is pointed out on behalf of the first respondent - landlord that there has
never been a tenancy with Thirumurugan Enterprises, but it was with N. Subbarayalu. It N. Subbarayalu was running a business in the name and
style of Thirumurugan Enterprises and to that business, the petitioner herein was admitted as a partner, he could perhaps say that he too was in the
shoes of a tenant along with his other partner, the original tenant. How he alone and his firm Nagarajan Traders became tenant under the first
respondent landlord is not known. It is on the record that the landlord accepted rent from the petitioner tendered to him on behalf of Thirumurugan
Enterprises originally and on behalf of Nagarajan Traders later. The tenancy being month to month, thus, it will become necessary to know that
negotiations with N. Subbarayalu notwithstanding, and his inducted a tenant originally, not of any consequence, when the landlord accepted rent
from Thirumurugan Enterprises, it became a tenant, and thus as partner, the petitioner became a tenant; but what followed was a dissolution of the
said partnership and creation of a new business in the name and style of Nagarajan Traders and since the landlord accepted rent from Nagarajan
Traders as well, it became a tenant in its own right. Evidence in this behalf is inadequate and insufficient for any concluded opinion.
16. For the reasons as above, I am inclined to interfere with the impugned judgment, and set aside both the findings recorded by the trial court. On
the facts of this case, however, it will not be possible to reject the petition of the landlord and to say that he does not have a bona fide requirement
or that the hardship of the tenant outweighs the advantage to the landlord. It is also not possible to say that the petitioner herein is not a sublease as
alleged by the first respondent landlord. It is a fit case, in my opinion, which should be remitted to the trial Court (Rent Controller) for a fresh
hearing and disposal in accordance with law. Its hearings should be on questions and principles as indicated above and after affording adequate
opportunity to the parties to lead further evidence.
17. Before I part with this judgment, I must take notice of certain events that took place after the appellate order and before the interim order was
passed by this Court. The appeal in the Court of appeal below was dismissed on 3.9.1991. The petitioner filed a copy of application on 4.9.1991.
Landlord applied for execution on 9.9.1991. The Court ordered the execution petition to be posted to 31.10.1991. It seems however, that
charges were called for on 1.10.1991 and were deposited the same day. The landlord applied to advance the execution. On 11.10.1991, which
was the last working day before the Pooja holidays, execution petition was taken up. Petitioner herein filed objections stating copy, application
was still pending, and vacation was likely to intervene, and the execution should a wait. On 15.10.1991, certified copy of the order was delivered
saying 11.10.1991 was the date on which copies were made ready. It is, however, alleged that the appellate authority was on leave from
7.10.1991, 12.10.1991 and 13.10.1991 were Saturday and Sunday. 14.10.1991 was a holiday for Disarray. The District Judge attended Court
only on 15.10.1991 as Vacation Judge. It was on that day, that the counsel for the petitioner pressed the copy of application and got it signed. The
landlord, however, entered caveat before the filing of the revision petition in this Court, On 20.10.1991, the petitioner served on the Counsel for
the caveat or with papers in the revision petition. This Court reopened after pooja holidays only on 21.10.1991. On that day, the revision petition
was filed and numbered. On that day the landlord filed E.A.No.153 of 1991 in the executing Court to break open locks and E.A.No.154 of 1991
for police aid for eviction. The Court ordered for both without any notice to the petitioner tenant. This Court, however, on 23.10.1991 ordered for
motion to be entertained after notice to the caveat or, and at 4:30 P.M., stay of the execution was ordered. It is said that the demised premises
was broken open and delivery effected at 2:30 P.M., on 23.10.1991 itself. On 24.10.1991, the revision petition was admitted and the stay
directed to continue. The landlord filed a petition to vacate the stay on 11.11.1991. This Court entertained, however, a petition of contempt of
Court and ordered notice to the Officer concerned, who had effected execution to the decree not with standing the events leading to the grant of
the order of stay.
19. I am not entering into the question whether there has been a contempt of Court and whether there has been any denial of the right to possess
the property in view of the order of stay to the petitioner. I shall fail however, in my duty if I do not notice any obvious attempt to overreach any
defeat the very purpose of the revision petition in this Court by securing delivery of possession of the demised premises before the order of stay
became effective. Execution of an order of eviction under the Act is to be in the manner of execution of a decree of a Civil Court. (See S.18 of the
Act). Order 21 of the CPC hereinafter called the Code, contains various prescriptions as to execution of a decree of Court. The appellate Court''s
power to stay execution or any proceeding is spelled out in Order 41, Rule 5 of the Code, which reads as follows:
5(1)An appeal shall not operate as a stay of proceedings under a decree or order appealed from, except so for as the Appellate Court may
order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the Appellate Court may
for sufficient cause order stay of execution of such decree on such terms and conditions as the Court deems fit and may, when the appeal is against
a preliminary decree, stay the making of a final decree in pursuance of the preliminary decree or the execution of any such final decree, if already
made
(2) Where an application is made for stay of execution of an appealable decree before the expiration of the time allowed for appealing there from,
the Court who passed the decree may on sufficient cause being shown order the execution to be stayed.
(3) No order for stay of execution shall be made under sub-Rule (1) or sub-Rule (2) unless the Court making is satisfied.
(a) That substantial loss may result to the party applying
For stay of execution unless the order is made;
(b) That the application has been made without unreasonable delay; and
(c) That security has been given by the appellant for the due performance of such decree or order as may ultimately be binding upon him.
(4) Subject to the provisions of sub-Rule(3), the Court may make an ex pane order for stay of execution pending the hearing of the application.
It is this power which extends to the Court exercising re-visional power under S. 115 of the Code. It was this power exercised by this Court that
on 23.10.1991, stay was ordered ex parte and again continued by the order dated 24.10.1991 by this Court. Sub-Rule(2) of Rule 5 of Order 41
of the Code, is a provision under which an application could be made for stay of execution of an appealable decree before the expiration of the
time allowed for appealing there from and the Court which passed the order may on sufficient cause being shown order the execution to be
stayed.
19. Courts in India cannot suffer in the illusion that the word ""appeal"" in various sub-rules of Rule 5 of Order 41 of the Code is confined to
appealable decree only and that in cases where a revision application can be taken, such power cannot be exercised. The re-visional Court has got
all the powers of the appellate Court and that of the original Court. The process of execution is issued in accordance with Rule 24 of Rule 21 of
the Code, and Rule 26 says:
The Court to which a decree has been sent for execution shall, upon sufficient cause being shown, stay the execution of such decree for a
reasonable time, to enable the judgment-debtor to apply to the Court by which the decree was passed, or to any Court having appellate
jurisdiction in respect of the decree or the execution thereof, for an order to stay execution, or for any other order relating to the decree or
execution which might have been made by such Court of first instance or Appellate Court if execution had been issued Thereby, or if application
for execution had been made thereto.
(2) Where the property or person of the judgment debtor has been seized under an execution, the Court which issued the execution may order the
restitution of such property or the discharge of such person pending the result of the application.
(3) Before making an order to stay execution or for the restitution of property or the discharge of the judgment-debtor, the Court shall require such
security from, or impose such conditions upon, the judgment-debtor as it thinks fit.
Rule 29, of Order 41 of the Code reads as follows:
Where a suit is pending in any Court against the holder of a decree of such Court, or of a decree which is being executed by such Court on the
part of the person against whom the decree was passed, the Court may, on such terms as to security or otherwise, as it thinks fit, stay execution of
the decree until the pending suit has been decided.
What does follow from these provisions? A decree undoubtedly gives a right to the decree-holder and thus makes him entitled to a process for the
execution of the decree by the Court which passed the decree or the Court to which the decree is sent for execution. However, the Court passing
the decree may, if a proper cause is made out, stay the execution and/or postpone the execution subject to the conditions that are indicated in Rule
26 of Order 21 or Sub-rule (2) of Rule 5 of Order 4 of the Code, to enable the judgment-debtor to apply to any Court having appellate
jurisdiction in respect of the decree or the execution there of for an order of stay of execution or for any other order relating to the decree or
execution which might have been made by the Court of first instance or the appellate Court. If there is a valuable right of a judgment-debtor, that
according to him, has fallen in jeopardy on account of a wrong order or decree and he has a remedy available by way of appeal or revision, should
he be denied the benefit of such provision under which he can apply and ask for stay of execution of the decree? If we test this on the facts of the
instant case, what is available to us is the filing of execution petition on 9.9.1991 followed by a petition on 7.10.1991 to advance the execution
petition, which it appears on 9.9.1991 was posted for 31.10.1991. The petitioner in the meanwhile had not been provided with a copy of the
appellate order in M.A.No.39 of 1990, for which purpose he had already moved an application on 4.9.1991. He however, learnt about the
execution petition, it seems, and filed objections on 11.10.1991 on various grounds praying for postponing the execution of the decree to enable
him to move the High Court in revision. It seems, ignoring the prayer and without saying that the prayer was not granted, the execution Court
ordered for delivery of the property to the decree-holder on 11.10.1991 itself. Some holidays intervened, and the District Judge was absent on
leave for some days. Certified copies of the orders became available only on 15.10.1991 and the petitioner could file the revision in this Court not
before 21.10.1991. It is indeed a matter of concern why when an application was filed on behalf of the petitioner in the Court concerned, it did not
see sufficient cause to stay the execution of the decree to enable the petitioner to apply to this Court in revision, especially when all steps were
being taken by the petitioner to get the revision petition and the petition for stay under Order 41 Rule 5 of the CPC heard and disposed of by this
Court. All that had to happen has already happened in the instant case. The facts afore-mentioned tell the story. Hurriedly the delivery of
possession was taken and the petitioner thrown out of the occupation of the building. Any observations however in the instant case as to the
procedure that a Court executing a decree should adopt is not going to aid the petitioner. Still I feel some such observations are necessary which
should guide the Courts in the matter of execution of decrees and exercise of jurisdiction in accordance with law in this behalf. A decree-holder
shall be too eager to reap the fruits of the decree and he shall leave no stone unturned to achieve his object of getting the decree satisfied. Any
judgment or decree even if appealable further is final subject to appeal or revision and since there is always a chance of the appellate or re-visional
Court taking a different view than the view taken by the Court passing the decree, it would be reasonable to postpone the execution for a
reasonable time to enable the judgment-debtor to apply to the appellate Court re-visional Court for a stay of the execution proceedings. Rules 5(2)
of Order 41 and Rule 26 of Order 21 afore quoted in the CPC are such provisions which provide forums to the judgment-debtor for seeking a
stay of the execution of the decree for a reasonable time to enable him to apply to the appellate Court re-visional Court for a stay of the execution
of the decree. He, of course has to show sufficient cause and once such cause is shown, the Court to which the decree is sent for execution or the
Court that passed the decree shall be obliged to stay tor a reasonable time the execution proceedings. Order 41, Rule 5, is in two parts. The first
part gives power to the appellate Court to stay the execution of the decree. The second par gives power to the Court which passed the decree to
stay the exclusion, in case it is satisfied that substantial loss may result to the party applying for stay of execution unless the order is made and the
application has been made without any reasonable delay and security has been given by the applicant for the due performance of such decree or
order as may ultimately be binding upon him. The scheme of the law thus is that it is open to a judgment debtor to apply to the Court which passed
the decree for a stay within a reasonable time to enable him to appeal or move in revision against the decree of order which is appealable resizable.
If the decree is transferred or sent to another Court for exclusion, the decree-holder can apply in the transferee Court as well and the transferee
Court for the reasons as indicated in Rule 26 of Order 21 may stay the execution. In any case, the Court passing the decree or the Court to which
the directs transferred for execution may stay for a limited period of lime to enable the judgment-debtor to appeal against the decree or order or
move in revision and to enable him to obtain orders of stay under Order 41, Rule 5 C. P. C. or otherwise in exercise of the inherent powers of the
appellate, or re-visional Court. If these provisions are ignored and in spite of applications in this behalf the Court passing the decree or the Court to
which the decree is transferred for execution gives no create the circumstances under which the decree or order is sought to be impugned before
the superior Court and either makes no order at all as in the instant case or makes orders without due can be proceed with the execution of the
decree, an impression is created that the Court has almost acted at the behest of the decree-holder. The view I express in this behalf is fully borne
out by the facts of this case. It is for this reason that I think it is necessary to state that it will be always reasonable for the Court passing the decree
to stay the execution thereof for a reasonable time and or the Court to which the decree is transferred for execution. A reasonable time to enable
the party to move against the decree in appeal or revision will enhance the interest of justice and cause no serious injury to the decree-holder. If,
however, no such time is granted and the decree is hurriedly executed as has been done in the instant case, a serious question shall always arise
whether to restore the status to ante as it obtained before the execution of the decree and that will involve the consequence that a restitution
proceeding creates, namely, to find out what was the status quo ante obtaining before the decree was passed and how far it is practicable to
restore status quo ante. These observations I make in the hope that the Courts below shall avoid such embarrassment. The instant case is a glaring
example how for the reason of the hurry shown by the Court below, the judgment- debtor-petitioner has been thrown out of a property and in
spite of order of stay granted by this Court he is out of possession of the property. In the revision petition he has succeeded in showing that the
impugned decree has not been passed in accordance with law. Yet it seems he is put out of possession unless restitution is ordered.
On the facts of the instant case since I have come to the conclusion that the decree has not been passed in accordance with law and it is a fit case
in which the case should be remitted to the original Court of Controller for further hearing and disposal in accordance with law, I hereby order as
follows:-
1) The judgments of the Courts below are set aside;
2) The case is remitted to the Court of Rent Controller for a decision in accordance with law and in the light of the observations made in this
judgment;
3) The Controller shall dispose of the matter as quickly is possible, preferable within a period of two months;
4) If there is any delay in the disposal of the Matter, it shall however be open to the petitioner
to apply to the Court for restitution; in case, there is a likelihood of a delay in the disposal of the
matter and the petitioner applies for restitution, the Controller shall favorably consider the application of the petitioner for restitution.
5) There shall be however no order as to cost.
