T S SETHURAMAN Vs. J NAGALAKSHMI

JUDGEMENT

(1.) THE tenant who suffered order of eviction before the authorities below has filed the C.R.P.No.563 of 1997.

(2.) THE landlady filed R.CO.P.No.479 of 1992 on the file of the learned Rent Controller /XVI Judge, Court of Small Causes, Madras under Sections 10(2)(l) and 10(3)(c) of the Act 18 of 1960. According to the landlady she had leased out the ground floor bearing Door No.66 Scheme Road, Kamdar Nagar, Madras-34 to the respondent/tenant, except in room both attached on a monthly rent of Rs. 1,600. According to the landlady the tenant has not paid the rent from July 1991. In para 5 of the petition, the landlady has stated that since her husband had fallen down and had a fracture in his hip, and he was in the hospital for treatment, he requires periodical checkup in the hospital, and so the petitioner wants to settle at Madras. For that purpose, the above eviction petition was filed. THE tenant contested the said petition by filing a counter wherein he has stated that he has paid the arrears and there was no arrears at all. It is the specific case of the tenant that the requirement of the building for additional accommodation is not bona fide.

(3.) ADMITTEDLY, in this case even the evidence is not available and also the authorities below have not at all discussed about the same, by framing any issues. Merely because the relative hardship has not been alleged, it cannot be said that the requirement of the landlady is not bona fide. But the authorities below merely on the basis of the requirement of the landlady proceeded that the landlady has pleaded the hardship. Such an approach is contrary to law and cannot be sustained. In Phiroze Bamanji Desai v. Chandrakanti N. Patel, 1974 (I) S.C.C. 661, the Apex court has held as follows:- "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 but it can no longer be regarded as correct after the decision of this Court in M/s. Central Tobacco Co. v. Chandra Prakash. This Court speaking through Mitter, J., pointed out in that case, while discussing Section 21(4) of the Mysore Rent Control Act, 1961, and what was said there must apply equally in relation to Section 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 of all further obligation under Section 21, sub-section (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, should 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 building, etc., and Section 21 specifically enumerates the grounds which alone will entitle a landlord to evict his tenant. Clause(h) of Section 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 due evidence to that effect. It is only after shifting 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 at by him on the question of greater hardship was vitiated by a mistake of law." From the above it cannot be said that the burden shifts on the tenant to prove the relative hardship.