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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 1398-1399 OF 2011

MEHMOODA GULSHAN                   …   APPELLANTS (S)

VERSUS

JAVAID HUSSAIN MUNGLOO    …   RESPONDENT(S)

J U D G M E N T

KURIAN, J.:

1. Whether  the  requirement  of  the  landlord  for  own

occupation  could  also  mean  occupation  by  a  member  of  the

family,  in  this  case,  the  son,  is  the  short  question  arising  for

consideration.

2. Appellant filed Civil Suit No. 42 of 2000 seeking eviction of

the respondent from the premises let out to him on 15.11.1997

for  a  period  of  eleven months.  The said  tenancy  was  verbally

extended for a further period of eleven months though it was the

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contention  of  the  respondent  that  the  said  extension  was  for

eleven  years.   Since,  the  premises  was  not  vacated  after  the

extended period of eleven months, the suit was filed for eviction.

3. Besides the ground on expiry of the period, it was the case

of the appellant that the premises was required for her own use.

To quote from paragraph-5 of the plaint:

“5. xxx xxx xxx xxx xxx  

i. That the plaintiff has been deserted by her husband namely : Ch. Mohd Khatai who has  arranged  2nd marriage  in  the  state  of Bangalore,  leaving  behind  the  plaintiff  and two  sons  namely  Shujat  Huyder  aged  27 years unemployed and Waseem Hyder aged 15 years, presently reading in 9th class.

ii. That  the  plaintiff  has  no  source  of income after  the  desertion  by  her  husband and elder sons being of 27  years old is still unemployed because of the fact, that the son of the plaintiff namely Shujat Hyder is simply a matriculate.

iii. That the plaintiff being a house lady and intends  to  use  the  rental  premises  by observing  his  elder  son  to  start  his  own business  as  such  the  plaintiff  requires  the rental premises for her son who can support the family in the long run.

iv. That the plaintiff has no other source of income except to use the rental premises by observing her elder son for starting his own business in the rental premises.

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v. That the son of the plaintiff cannot claim any Govt.  service because of the fact he is simply a matriculate and he is at the verge of crossing the age limit.

vi. That the plaintiff cannot absorb her son in any private institution, he only alternative is to start his business in the rental premises.

vii. That  the  plaintiff  requires  the  rental property for  her  personal  use,  enabling her elder son to establish the business therein.

viii. That  the  plaintiff  has  a  liability  of  her sons, as such requires the rented property for establishing own business therein.”

4. The following issues were framed by the trial court:  

“1. Whether  the  defendant  was  bound  to  hand over  the  possession  of  the  suit  premises  to the plaintiff after  the period of  tenancy was over on 13.11.1999? OPP.

2. Whether  the  plaintiff  requires  the  suit premises for her unemployed son?... OPP

3. Whether the plaintiff has rented the premises for period of 11 years, as such is stopped from claiming  the  eviction  before  the  stipulated period?... OPD

4. What  is  the  comparative  advantage  and disadvantage of the parties?... OPP/OPD

5. Whether the requirement of the plaintiff will be  satisfied  by  partially  affecting  the defendant from suit premises?... OPD

6. To what relief the plaintiff is entitled to?”

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5. Since we are concerned mainly with the requirement on

the ground of own occupation, we confine references only to the

consideration of issues 2 and 4.   

“Issue No.2: With regard to issue no.2 whether the plaintiff require the premises for  her unemployed son.

There is  ample evidence on the file lead by the plaintiff as well as admitted in cross examination by the defendant that the husband of plaintiff has married with a Hindu girl at Cochin and he is residing with his second wife there. The plaintiff has two sons both of them are idle. The elder one being of the aged of about 30 years is not doing any work and that way is idle. It is also on the record that he is not qualified so that he may aspire for any government job nor has it been proved by the defendant that he is associated with the business of his father at Kochin. Every parent has a cherished desire to get his or her ward settled in some job so that he can have  a  sustenance  in  his  life.  The  plaintiff  does  not possess  any  commercial  building  other  than  the  suit premises where her son could start any business for his sustenance.  Though it is settled law on the subject that there is a difference between desire and requirement. Requirement means when objectively seen there must be the necessity with the party to require the premises for his own use. It is not a sheer desire only whether the landlord may show his intent to occupy the premises. So there is a difference between the two situations and while differentiating the two situations the evidences on the file is sufficient to prove that the son of the plaintiff is in his 30s and is still  idle. In these hard times, the family  requirements  cannot  be  met  by  mere  rent  of Rs.5000/-  which defendant is  paying.  So in the given circumstances, it has been proved by the plaintiff that plaintiff requires the suit premises for her unemployed son. The defendant has though tried to controvert this

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position but have not been able to convince the court that the son of the plaintiff is in any manner associated with the business of his father at Cochin. So this issue is also decided in favour of the plaintiff.

Issue No.4: With  regard  to  issue  no.4  of comparative advantage and disadvantage of the parties, the law on the subject is very clear that we have to take into  account  while  comparing  the  advantages  and disadvantages of the respective parties the interests of the person for whose benefit the house and shop is held whether  he  being  landlord  or  the  tenant.  The explanation to clause (h) of the J&K Houses and Shop Rent Control Act contains specific provisions regarding the weighing and measuring the relative hardship which may  be  caused  to  the  tenant  or  landlord  in  case  of granting or refusing a decree for eviction. The principle of law enacted with the expansion is to the effect that the law will lean in favour of the person to whom the greater inconvenience and hardship is caused and would grant the relief to the landlord only when his hardships are likely to exceed the hardships which may be caused to  the  tenant.  Thus,  the  question  of  comparative advantage and disadvantage has an important bearing on the question of granting or refusing the relief.  The question  of  balance  of  convenience  or  principle  of comparative advantage and disadvantage will come up only when the court is satisfied that the premises are reasonably required by the landlord or any person for whose behalf the house or shop is held. But before this is to be decided, the court has to find and determine two things i.e. I) reasonable requirements of the landlord or the person for whose benefit the house or shop is held; II)  comparative  advantage  and  disadvantage  of  the landlord or any person and the tenant and these two ingredients must coexist.  So what is to be seen while comparing these two aspects, we have to consider the reasonable requirement of the landlord or ejectment of his tenant.  The question of requirement always differs from case to case depending on the facts of its  own. While comparing advantages and disadvantages of the

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parties, we have to apply our mind objectively firstly to this aspect whether requirement of the landlord is real and is only not a desire, but there is some compulsion that he requires the premises for his own use and it is also to be seen whether by eviction the defendant may not be put to such a disadvantage in which he cannot be compensated.  So,  the  need  of  the  landlord  must  be pressing one and real. Applying this test to the facts of the  instant  case  and  taking  stock  of  the  evidence recorded by the defendant as well as by the plaintiff, it is  not  disputed.  It  is  also  in  the  evidence  that  the landlords is not having any source of income other than the rent received through Rent controller and naturally speaking the amount of Rs.5000/- per month is so paltry amount in these hard times when every item of the day to day needs is so costly that hardly she cannot sustain her family. Thus in the given situation it is the landlord whose  need  is  more  pressing  and  real  an  is  put  to disadvantage in comparison to the disadvantage which would be caused to the defendant by eviction because the machinery installed can be removed with much case and he can get on rent any other alternative premises in the  vicinity  and  that  will  not  put  to  jeopardy  the interests of the defendant. Therefore, the comparative advantage  and  disadvantage  is  also  in  favour  of  the landlord. Hence, this issue is also decided in favour of the plaintiff.”

6. Issue  No.  5,  on  partial  eviction,  was  also  answered  in

favour of the plaintiff. Thus, by judgment dated 12.12.2007, the

suit was decreed.

7. Aggrieved, the respondent filed Civil First Appeal No. 228

of 2007 before the High Court of Jammu and Kashmir at Srinagar.

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The learned Single Judge, by judgment dated 04.08.2009, allowed

the appeal. According to the learned Single Judge:

“From  the  pleadings  it  would  appear  that  the premises is required for the son of the respondent. The respondent’s case before the trial court was that  her  son was unemployed and that  the suit premise was required for him. The trial Court, as noticed above, found that the respondent has two sons both of them are alive. The elder one of the age of 30 years, is not doing any work and that way is idle. The trial Court has further found that the son of the respondent is not qualified so that he may aspire for any government job. On going through the evidence it  would,  however,  appear that  the  findings  are  based  on  either  the statement  of  the  plaintiff  or  her  witnesses.  The best witness in these circumstances, to depose on the  personal  requirement  was  the  son  of  the respondent himself but he has not been examined as witness before the trial Court. No explanation has been given for his non examination.”

8. It was also held that:

“There  is  nothing  in  the  statement  of  the respondent  which  could  even  indirectly  suggest the nature of the business that her son intends to carry on this property,  his resources to carry on the  business  and  his  aptitude  and  physical strength  and  other  facts  requisite  for  such  a purpose.  Thus the evidence is  so vague that  no reliance can be placed on it.

Reasonable requirement is a question of law but whether  the  landlord  has,  in  a  suit  for  eviction under Section 11 (h) of the J&K Houses and Shops

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Rent Control Act, proved it or not is essentially a question of fact. Onus to prove is on the plaintiff. While judging the requirement of a landlord (or the person for  whose use the shop is  required),  the court has to take into account a variety of factors such as the social status of the concerned person, the standard of his living, his habits, his comforts, the state of his health, the number of his family members,  the  nature  of  business  he  intends  to start  and the suitability of the property for  such business,  the  resources  he  has  got  to  run  the business  and  the  like.  If  the  very  person  who needs the shop for his use is reluctant to appear before the Court, the Court would not extend any help to him and would not grant any relief in his favour.”

9. Aggrieved, the appellant filed intra-court appeal as Letters

Patent Appeal No. 175 of 2009 leading to the impugned judgment

dated 23.10.2009. The Division Bench concurred with the learned

Single Judge and held that the appellant has failed to prove that

the premises was required for  own occupation,  and hence,  the

appeal.

10. Heard Mr. V. Giri, learned Senior Counsel appearing for the

appellant and Ms. Diksha Rai, learned Counsel appearing for the

respondent.  

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11. Section 11(1)(h) of the Jammu and Kashmir Houses and

Shop Rent Control Act, 1966 (hereinafter referred to as “the Act”),

is the relevant provision:

“Section 11(1)(h) “… where the house or shop is reasonably required by the landlord either for the purposes 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;”   

12. The main ground on which the appellant was non-suited in

the first appeal and the intra-court appeal is that the appellant

has  failed  to  establish  her  reasonable  requirement  for  own

occupation. Having not examined the son who intends to do the

business,  according to the High Court,  the requirement of  own

occupation was not established.  

13. We fail  to  understand  the  approach  made by  the  High

Court. It has clearly come in evidence of the appellant that her

one son is  unemployed and in  view of  unemployment,  he was

frustrated.  The  appellant’s  husband  had  contracted  second

marriage  and  he  had  deserted  the  appellant.  The  appellant

herself was unemployed with no source of income. The appellant,

hence, prayed that the property be returned to her so that her

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son can look after the family. In cross-examination, she denied the

suggestion that the son was doing business with his father. It had

also  been  stated  further  that  “except  the  premises  and  the

residential  house, the plaintiff has no other property”. The trial

court has meticulously analyzed and appreciated the reasonable

requirement of the premises for the business to be managed by

the  son  of  the  appellant  especially  in  her  peculiar  family

circumstances.  In  our  view,  trial  court  has  appreciated  the

evidence in  the  right  perspective and held  that  it  is  not  mere

desire  but  genuine  need.  The  finding  of  the  trial  court  was

challenged mainly on the ground that the son, for whose benefit

the eviction is sought, has not been examined.

14. Mere non-examination of the family member who intends

to do the business cannot be taken as a ground for repelling the

reasonable  requirement  of  the  landlord.  Under  the  Act,  the

landlord  needs  to  establish  only  a  reasonable  requirement.  No

doubt,  it  is  not  a  simple  desire.  It  must  be  a  genuine  need.

Whether  the  requirement  is  based  on  a  desire  or  need,  will

depend on the facts of each case.  

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15. In  Bega  Begum  and  others v.  Abdul  Ahad  Khan

(dead) by Lrs. and others1, this Court has taken the view that

the requirement only connotes an element of genuine need. To

quote from paragraph-13:

“13. Moreover, Section 11(h) of the Act uses the words  “reasonable  requirement”  which  undoubt- edly postulate that there must be an element of need as opposed to a mere desire or wish. The dis- tinction 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 im- possible or extremely difficult for the landlord to get a decree for eviction. Such a course would de- feat the very purpose of the Act which affords the facility of eviction of the tenant to the landlord on certain specified grounds. This appears to us to be the general  scheme of  all  the Rent  Control  Acts prevalent in other States in the country. This Court has considered  the  import  of  the word “require- ment”  and  pointed  out  that  it  merely  connotes that there should be an element of need.”

16. Bega Begum (supra) has also considered the scope and

ambit  of  the  expression  “reasonable  requirement”  at

paragraph-17:

1 (1979) 1 SCC 273

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“17. This brings us to the next limb of the argu- ment of the learned Counsel for the respondents regarding the interpretation of Section 11(1)(h) of the Act. Section 11(1)(h) of the Act runs thus:

“11(1)(h…  where  the  house  or  shop  is reasonably required by the landlord either for purposes of building or rebuilding, or for his own occupation or for the occupa- tion of any person for whose benefit the house or shop is held;

Explanation.—The Court in determining the reasonableness of requirement for purposes of building or rebuilding shall  have regard to the comparative public benefit or disadvantage by extending  or  diminishing  accommodation,  and in  determining  reasonableness  of  requirement for occupation shall have regard to the compar- ative advantage or disadvantage of the landlord or  the person for  whose benefit  the house or shop is held and of the tenant.”

It was submitted by Mr Andley, learned Counsel for the  respondents  that  the  words  used in  Section 11(1)(h) are “that the house should be required by the landlord for his own occupation or for the occu- pation of any person for whose benefit the house or  shop  is  held”.  It  was  argued  that  the  words “own occupation” clearly postulate that the land- lord must require it for his personal residence and not for starting any business in the house. We are, however, unable to agree with this argument. The provision is meant for the benefit of the landlord and, therefore, it must be so construed as to ad- vance 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 con-

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templates  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 of the same family.”

17. In  Joginder  Pal v.  Naval  Kishore  Behal2,  after

extensively referring to all the decisions of this Court and some

other High Courts, it was held that in interpreting “own use”, the

court should adopt a practical and meaningful approach guided

by  realities  of  life.  The  guidelines  are  being  summarized  at

paragraph-33:  

“33. Our conclusions are crystallised as under:

(i) The words “for his own use” as occurring in Sec- tion 13(3)(a)(ii) of the East Punjab Urban Rent Re- striction Act, 1949 must receive a wide, liberal and useful meaning rather than a strict or narrow con- struction. (ii) The expression — landlord requires for “his own use”, is not confined in its meaning to actual phys- ical user by the landlord personally.  The require- ment not only of the landlord himself but also of the  normal  “emanations”  of  the  landlord  is  in- cluded therein. All the cases and circumstances in

2 (2002) 5 SCC 397

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which actual physical occupation or user by some- one else, would amount to occupation or user by the landlord himself, cannot be exhaustively enu- merated. It will depend on a variety of factors such as interrelationship  and interdependence — eco- nomic  or  otherwise,  between  the  landlord  and such person in the background of social, socio-reli- gious and local customs and obligations of the so- ciety or region to which they belong. (iii) The tests to be applied are: (i) whether the re- quirement  pleaded and proved may properly  be regarded as the landlord’s own requirement; and, (ii) whether on the facts and in the circumstances of a given case, actual occupation and user by a person other than the landlord would be deemed by the landlord as “his own” occupation or user. The answer would, in its turn, depend on (i) the nature and degree of  relationship  and/or  depen- dence between the landlord pleading the require- ment as “his own” and the person who would actu- ally  use  the  premises;  (ii)  the  circumstances  in which the claim arises and is put forward; and (iii) the intrinsic tenability of the claim. The court on being satisfied of  the reasonability  and genuine- ness of claim, as distinguished from a mere ruse to get  rid  of  the  tenant,  will  uphold  the  landlord’s claim. (iv) While casting its judicial verdict, the court shall adopt a practical and meaningful approach guided by the realities of life. (v)  In  the  present  case,  the  requirement  of  the landlord of the suit premises for user as office of his chartered accountant son is the requirement of landlord “for his own use” within the meaning of Section 13(3)(a)(ii).”

18. Joginder Pal (supra) was followed in many subsequent

decisions and one close to the dispute in the instant case is Ajit

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Singh and another v. Jit Ram and another3. It has been held

at paragraph-19:

“19. From the aforesaid decision of this Court (in Joginder  Pal  case),  it  is  therefore  clear  that  this Court has laid down authoritatively that a non-resi- dential premises, if required by a son for user by him  would  cover  the  requirement  of  the  words used in the section i.e. “for his own use” in refer- ence to a landlord. …”

19. In C. Karunkaran (dead) by Lrs. v. T. Meenakshi4, one

issue which arose for consideration was whether non-examination

of the person for whose need the building was required was fatal.

It was held that “mere non-examination of the person for whose

need the building was required by itself was no ground to non-suit

the landlady”. To quote:

“…  Mere  non-examination  of  the  person  for whose need the building was required by itself was  no  ground  to  non-suit  the  landlady.  In  a number of decisions, [this fact is acknowledged by the  first  appellate  court  also],  it  has  been held  that  it  is  not  necessary  to  examine  the person  for  whose  need  the  premises  are required.  It  depends  on  the  facts  and circumstances of each case. …”.  

3 (2008) 9 SCC 699 4 Civil Appeal No. 2773 of 2002 decided on 06.10.2005

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20. In  Gulraj  Singh  Grewal v.  Dr.  Harbans  Singh  and

another5, this Court had an occasion to see whether a landlord

can be non-suited on the ground of non-examination of the son

for whose benefit the premises is sought to be vacated. This Court

held  that  in  case  the  need  has  otherwise  been  established  in

evidence, the non-examination is not material. At the best, it is

only a matter of appreciation of evidence. To the extent relevant,

paragraph-8 reads as follows:

“8. Learned counsel for the appellant submitted that the personal need found proved is only of respondent 2, son of respondent 1, who did not enter the witness-box and, as stated in an affi- davit filed in this Court, even he is carrying on his profession at a place about 25 kms. away from  Ludhiana,  in  our  opinion,  this  finding  of fact is unassailable. The High Court has clearly observed that no meaningful argument could be advanced  on  behalf  of  the  appellant  to  chal- lenge this finding of the appellate authority. Re- spondent 1 who is the father of respondent 2, has supported and proved the need of respon- dent 2, who also is a landlord. The fact that for want of suitable accommodation in the city of Ludhiana, respondent 2 is at present carrying on his profession at some distance from Ludhiana is not sufficient to negative the landlord’s need. In these circumstances, the non-examination of respondent 2 also, when respondent 1 has ex- amined  himself  and  proved  the  need  of  the landlord, is immaterial and, at best, a matter re-

5 (1993) 2 SCC 68

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lating only to appreciation of evidence, on which ground this finding of fact cannot be reopened. … .”

21.  Thus,  the  question  is  whether  there  is  a  reasonable

requirement by the landlord of the premises. This would depend

on whether  the landlord has been able  to  establish  a  genuine

element of need for the premises. What is a genuine need would

depend  on  the  facts  and  circumstances  of  each  case.  Merely

because the landlord has not examined the member of the family

who  intends  to  do  business  in  the  premises,  he  cannot  be

non-suited in case he has otherwise established a genuine need.

The need is a matter of appreciation of evidence, and once there

is no perversity in the appreciation of evidence on the need, the

said  finding  of  fact  cannot  be  reopened.  It  may  be  crucially

relevant to note that the eviction is not sought on the last limb of

Section 11(1)(h)  of the Act namely,  “for  the occupation of any

person  for  whose  benefit  the  house  or  shop  is  held”.   The

premises sought to be evicted is not held for the benefit of the

son alone; but the whole family. It is for the own occupation of the

landlord. It has been established in the facts of this case that the

landlord was not happy and content with the paltry rent received

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from the premises. The landlord intended to engage her son in

the business at the premises. It is for the landlord to decide as to

the  best  use  the  premises  should  be  put  to.  There  is  nothing

wrong on the part of a landlord in making plans for a better living

by  doing  business  engaging  her  son.  Having  regard  to  the

background of the son who is unemployed and undereducated,

the  appellant  was  able  to  establish  that  business  was  the

available option and the tenanted premises was the only space

available.  Thus,  the  genuine  need  for  the  premises  has  been

established.  Unfortunately,  the  High  Court  has  missed  these

crucial aspects.

22. The  appellant  having  established  a  reasonable

requirement  of  the  tenanted  premises  for  own  occupation,  is

entitled  to  succeed.  Therefore,  the  appeals  are  allowed.  The

judgment  of  the  learned  Single  Judge  in  the  first  appeal  and

confirmed in the intra-court appeal by the Division Bench, which

is  impugned in  these appeals,  is  set  aside.  The judgment  and

decree of the trial court is restored. The respondent is granted a

period of three months to surrender vacant possession.

23. There shall be no order as to costs.

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…...…..………………….J.             (KURIAN JOSEPH)

...……..………………….J.             (A.M.  KHANWILKAR)

NEW DELHI; FEBRUARY 17, 2017.

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