NAND KISHORE SHARRAF Vs. DISTRICT JUDGE MATHURA

JUDGEMENT

(1.) THIS is a tenant's writ petition filed against judgment of the District Judge, Mathura dated 11.1.1977 dismissing the appeal filed by the tenant against the order of the Prescribed Authority. Vishwanath Shorawala, respondent no. 3, is the owner of a building situated in Mohalla Gali Tawalia, Mandi Ram Das, Mathura. One of the shops of the said building had been let out to the petitioner. An application under section 21 (1) (a) of U. P. Act No. XIII of 1972 was filed by the landlord for the release of the aforesaid shop against the petitioner on the ground that the same was required by the landlord for his son M. P. Shorawala who was desirous of having his office in the aforesaid shop. The landlord further alleged that the tenant had constructed a big house on the main road of Mandi Ram Das and that on the ground floor of the said building had constructed a hall. It was claimed by the landlord that the tenant had shifted his old Sarrafa business in that hall and the disputed shop had been closed. The application was contested by the tenant. He claimed that the need of the landlord was not genuine. The landlord had several properties in the City, two of which bearing nos. 443 and 345 were situated at Deeg gate and being financially well off the landlord could construct a decent office room at any of these two places. The tenant asserted that in addition to the aforesaid building, the landlord had a three storeyed residential house where M. P. Shorawala could have his chamber. According to his case there was enough accommodation in the residential building for meeting the professional require ments of his son. It was alleged that the application was mala fide inas much as the sole purpose and object of filing the same was to get the tenant evicted so that the landlord could let out the premises at the enhanced rent. Both the parties adduced evidence in support of their respective cases. The Prescribed Authority held that the accommodation used by the landlord was not sufficient and that the premises in question was required by him for his son. He also held that as the tenant had constructed a house he was not likely to suffer any hardship. In appeal filed by the tenant, the findings of the Prescribed Authority were affirmed. Against the aforesaid judgments, the tenant has filed the present writ petition. The main question that arises for decision in the present writ petition is whether the findings given by the courts below holding that the need of the landlord was bona fide was correct. Undisputedly, the question of bona fide requirement of a premises by a landlord is one of fact. I would have no difficulty in dismissing the writ petition on this ground but since the view of the learned Additional District Judge holding that the need of the landlord was bona fide suffer from a manifest error, it is not necessary to question the same. While dealing with the question of bona fide requirement of the premises by the landlord, the learned District Judge observed that : "A person owning several houses would need at least a store-room to keep extra luggage and other paraphernalia required for annual white washing, repairs etc. That space is also a necessity and not a luxury. What place would be more suited for professional work would depend upon the liking and aptitude of the individuals and the choice differs from man to man. One of the Advocates may like to sit in a busy market full of noise and activities and successfully carry on his professional work unmindful of the noise, the other who is tempera mentally different may need a more peaceful and quite atmosphere and prefer a place away from the din and bustle of the busy town. No hard and fast rule can therefore be laid down as to what accommodation will be suited for carrying on the legal profession to a particular individual. For his own reasons the landlord's son Sri M.P. Shoruwala does not find it possible to carry on his professional work in a portion of his residential house. That does not mean that he wants to evict the tenant on a false pretext." The finding given above would show the ground on which the learned District Judge held that the need of the landlord was genuine. The question of bona fide requirement of the premises by a landlord is not to be decided on the basis of his subjective satisfaction of the tenant. As held by the Supreme Court in Mattulal v. Radhe Lal, A. I. R. 1974 S. C. 1594 "mere assertion on the part of the landlord that he requires the non-residential accommodation in the occupation of the tenant for the purpose of starting or continuing his own business is not decisive. It is for the court to determine the truth of the assertion and also whether it is bona fide. The test which has to be applied is an objective test and not a subjective one. The word 'required' signifies 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, the burden being upon him that he genuinely requires the non-residential accommodation for the purpose of starting or continuing his own business." The law enunciated by the Supreme Court would show that while deciding an application filed by a landlord seeking eviction of a tenant, objective decision on the question of bona fide requirement has to be taken by a court. It cannot surrender its decision merely on the fact that since the landlord demands his premises, he is entitled to get it as of right. The demand of a landlord can be capricious, unfair and absurd. THIS is for a court to decide that he requires it genuinely for his occupation and that the application was not actuated by oblique or malicious intention. Mere ipse-dixit of a landlord cannot be' relied upon. In this view of the matter, it appears to me that the whole approach made by the learned District Judge was erroneous. He did not examine the need of the landlord himself and wrongly held that as the premises in dispute was required by him, the applica tion had to be allowed. That apart, it had come in evidence that the landlord had a room on the ground floor, which was in his use as a store-room for keeping extra luggage and other goods needed for annual white-washing. The court below did not give any cogent reason for holding as to why that room could not be used by the son of the landlord for the purposes of his chamber. It was wrong in holding that simply because the landlord did not want to convert the same into an office, that alone was sufficient for holding that the premises in dispute was required by the landlord for his son. As already observed above, the question of bona fide requirement of the premises does not depend on the whims and capricious of a landlord. The Act was made for the purposes of protecting the tenant from eviction. The court below was, therefore, not right in holding that simply because the son of the respondent wanted to use the shop as an office, that he was entitled to his possession. Since the eviction of a tenant is to be granted to a landlord only when his need is bona fide, suoh an approach cannot be made. A court is required to make a reasonable approach to such a problem. It must address itself about the genuineness of the need set forth by a landlord in the application and to decide whether the same is un-reasonable or bona fide. In considering the question of bona fide requirement of a landlord the nature and character of the landlord's accommodation at the time when the petition is filed and the size, scope and character of his requirements are relevant. In considering all these things, a court is also to bear in mind that the demand of the landlord is not unreason able. In considering reasonableness, he must act in a broad; commonsense way as man of the world, and come to his conclusion giving such weight as he thinks right to the various factors in the situation. Accordingly, a court dealing with an application filed under section 21 (1) (a) is required to consider the need objectively and should not surrender its judgment to the desire of the landlord mentioned in the application. Another argument raised by the learned counsel for the petitioner was that apart from the room situated on the ground floor of the residential house, the petitioner had accommodation available with him on the first floor where he could start his office. Admittedly, the aforesaid portion of the house had been previously let out to Shri J. P. Garg, Advocate. He had established his office in that portion. The Prescribed Authority, however, held that if Shri J. P. Garg, Advocate had done well in his profession, he would have not shifted his office from there. In this view of the matter, the view taken by the learned Prescribed Authority was that the room was not fit and suitable for establishing the office of an Advocate. In the appeal, the learned District Judge, however, did not go into this question. The case of the landlord was that since the aforesaid point had not been argued in the appeal, the petitioner was not entitled to raise the said point in the writ petition. THIS was controverted by the petitioner. The parties have also filed the affidavits of the lawyers who appeared for them in the appeal in proof of their respective versions. In view of the fact that I am setting aside the judgment of the learned District Judge on the point indicated above, I need not go into the correctnes s of the two versions given by the parties on the fact whether the aforesaid point had been pressed in appeal. The appellate authority may now consider the said aspect of the matter. Apart from the above, it may also be pointed out that the finding of the courts below about the bona fide requirement of the premises by the landlord was largely influenced from the fact that since the tenant had shifted his business to his own house, the premises was not required by the tenant for his own use. The fact that the tenant had shifted his business to his house was disputed by him. Without going into the said question it might suffice to point out since the fact that the tenant does not need the premises, is not a proper or relevant consideration for deciding the question of bona fide requirement, the judgment of the court below holding that the need of the landlord was bona fide is liable to be set aside. In the result the writ petition succeeds and is allowed. The judgment of the learned District Judge dated 11.1.1977 is set aside and he is directed to decide the appeal afresh. The petitioner will be entitled to cost of the writ petition from respondent no. 3