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1992 SCC OnLine Mad 103 : (1993) 1 LW 331
Madras High Court

19th March, 1992
C.R.P. No. 2764 of 1991
MISHRA, J.
S.V.M. Nagavairavasundaram
v.
1. S. Bageerathan
2. N. Subbarayalu Mr. Veeranath Rao,
Pondicherry Buildings (Lease and Rent Control) Act, Ss. 10(3)(e) and 1O(3)(c)and 18 —
Finding based on satisfaction of court that claim of landlord is bona fide would be necessary before
eviction can be ordered — Even if claim is bona fide, hardship caused to tenant by granting eviction
should not outweigh the advantage to the landlord if the requirement is for additional
accommodation under S. 10(3)(c).
S. 18, and C.P.C., O. 41, R. 5, and O. 21, Rr. 24 and 29 — Execution — Application for stay pending
an appeal or a revision — Powers of revisional court — Stay and postponement of execution —
Reasonable attitude of the court passing the decree would be to postpone execution for a reasonable
time to enable J.D. to apply to appellate court/revisional court for a stay of the execution
proceedings — Considerations — Scheme of the law under O. 41, R. 5, C.P.C.
C.P.C., O. 41, R. (5) and O. 21, Rr. 26 and 29 — See Pondicherry Buildings etc. Act, Ss. 10(3)(e)
and 10(3)(c) and 18, etc.
A mere glance, at the provision in Clause (e) of Sub-S. (3) to S. 10 of the Pondicherry Buildings
Page: 332
(Lease and Rent Control) Act would convince a person 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 Clause (c) of sub-S. (3) of S. 10 of the Act.
Para 7
AIR 1977 S.C. 1483;
AIR 1977 S.C. 1520;
AIR 1981 S.C. 1690;
AIR 1986 S.C. 1643;
AIR 1974 S.C. 1059;
100 L.W. 278 (Chandurkar, C.J.);
100 L.W. 774;
98 L.W. 25 (S.C.);
1981-3-S.C.C. 36; and
1981-3-S.C.C. 103 - Referred to.
What follows from the authoritative pronouncements of the Supreme Court as regards the
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
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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.
Para 12
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 sub-
lessee as alleged by the first respondent landlord. It is a fit case which should be remitted to the trial
Court (Rent Controller) for a fresh hearing and disposal in accordance with law. Its hearing should be
on questions and principles as indicated above and after affording adequate opportunity to the parties
to lead further evidence.
Para 18
Held :
Further: 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 revisional 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 R. 24 of O. 21.
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 41 of the Code, to enable the judgment-
debtor to apply to any Court having appellate jurisdiction in respect of the decree or the execution
thereof 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.
Para 21
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 revisional Court taking a different view from 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
Page: 333
to apply to the appellate Court/revisional Court for a stay of the execution proceedings. Rule 5(2) of
Order 41 and Rule 26 of Order 21 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/revisional 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 for a reasonable time the execution
proceedings.
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 or order which is appealable/revisable. If the decree is transferred or sent to
another Court for execution, 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 decree is transferred for execution may
stay for a limited period of time 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 revisional Court. If these provisions
are ignored and in spite of applications in this behalf the Court passing the decree or the Court to
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which the decree is transferred for execution gives no care to 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 care to proceed with the execution of the decree,
an impression is created that the Court has almost acted at the behest of the decree-holder.
Para 22
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 quo 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 practical to restore status quo ante. These observations are made 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.
Para 22
C.R.P. allowed/Case remanded.
Mr. T.R. Mani for T.M. Hariharan and P.R. Balasubramaniam for Petitioner.
Mr. R. Gandhi, for Ravi Chandrababu, C.N.C. Ezhil Arasi M. Baskar, for 1st
Respondent.
ORDER
The 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 Buddings (Lease and Kent Control)
Act, hereinafter referred to as the Act, impleading the tenant N. Subbarayalu and the
petitioner calling him a sub-tenant. The trial Court found in favour 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.
3. Facts that seem to be undisputed are,
Page: 334
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 sublessee, petitioner herein. He desperately needed
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expansion of his 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
premises 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.
4. 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 stuated side by side. It is also
admitted by the appellant that the petitioner landlord has Died 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 have 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 is
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
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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 sarees. 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
Page: 335
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 fulfil 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.”
5. 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
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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.
6. 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 therefrom”, 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
date as may be specified by the controller and if the Controller is
Page: 336
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 failing under Clause (c) of sub-S. (3) of S. 10 of the Act.
7. A Bench of the Supreme Court in Smriti Martland v. District Judge, Kumaum1 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
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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 filing 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 bypassed 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.”
8. In another judgment in Purushottam Das v. Addl. District and Sessions Judge,

Allahabad2 , 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 take 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.”
9. In Bhaichand Ratanshi v. Laxmishanker Tribhovan3 , 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), S. 3(1), Schedule I,
para (h): Sims v. Wilson 1946 2 All ER. 261: Fowle v. Bell (1946 2 All ER 668: Smith
v. Penny
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Page: 337
(1946) 2 All ER 672, Chandler v. Strevett (1947) 1 All ER 164) and Kelley v. Goodwin
(1947) 1 All ER 810). 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.”
10. In Om Prakash v. Bhagwan Das1 , 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 Called to fulfil 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.
11. The judgment of the Supreme Court in the case of Phiroze Bemanji Desai v.
Chandrakant M. Pate2 , 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
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paragraphs of the said judgment.
“Now, the decision of the District Judge was based on two findings recorded by him in
favour 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 first respondent by passing a decree for
eviction than what would be caused to the appellant by refusing to pass it. 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 bad 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 floor 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 revisional power under S. 29, sub-
S. (3), to interfere with this finding by 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
Page: 338
reached by the District Judge. That was clearly outside the scope and ambit of the
revisional power of the High Court under S. 29, sub-S. (3).
xx xx xx
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. ER 810) but it can no longer be
regarded as correct after the decision of this Court in Central Tobacco Co. v. Chandra
Prakash Civil Appeal No. 1175 of 1969 D/- 23.4.1969 — (reported in A.I.R. 1969 NSC
88). This Court speaking through Mitter, 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
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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 entirely 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 Navsari
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 favour, 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.”
12. 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
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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
Page: 339
to him.
13. M.N. Chandurkar, C.J., in Yousuff Sait & Sons v. A. Shafeeq Ahamed1 , 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 to 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 is neither any pleading nor
any evidence.”
14. A learned single Judge of this Court in Veera Manikandan v. A.K. Chakrapani2 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 neighbouring 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, v. V.R.M. Mohammed V. Ibrahim
Naina3 . 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 oh 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 Godown Street, wanted to close down this business in
Godown 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 ordered eviction. The Supreme Court found that since subsequent to the
initiation of eviction
Page: 340
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 M.M. Quasim v. Manohar Lal Sharma1 and Hasmat
Rai v. Raghunath Prasad2 .
15. 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, it 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.
16. 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 and lord 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.
17. 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. If 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 con
Page: 341
eluded opinion.
18. 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 sublessee 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.
19. 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 await. 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 Dasara. 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 caveator 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 caveator, and at
430 PM, stay of the execution was ordered. It is said that the demised premises was
broken open and delivery effected at 2.30 PM, 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 notwithstanding the events leading to the grant of the
order of stay.
20. 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 Code of Civil Procedure, 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 far 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
Page: 342
of an appealable decree before the expiration of the time allowed for appealing
therefrom, the Court which 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 parte order for
stay of execution pending the hearing of the application.”
It is this power which extends to the Court exercising revisional 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 therefrom and the Court which passed the
order may on sufficient cause being shown order the execution to be stayed.”
21. 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 revisional 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 thereof 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
Page: 343
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 Code of Civil Procedure 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.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
22. 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 revisional 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/revisional Court for a stay of the execution proceedings. Rules 5
(2) of Order 41 and Rule 26 of Order 21 afore quoted in the Code of Civil Procedure 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/revisional 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 for 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
part gives power to the Court which passed the decree to stay the execution, 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 or order which is appealable/revisable. If the decree is transferred or sent
to another Court for execution, 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 decree is transferred for execution may stay for a limited period of time 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 revisional 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 care to 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 care to proceed with the execution of the decree, an impression
Page: 344
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 quo 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 s 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 favourably consider the application of the petitioner for restitution.
5) There shall be however no order as to
RR/VCS
———
1 AIR 1977 S.C. 1483
2 AIR 1977 S.C. 1520
3
AIR 1981 S.C. 1690
1 AIR 1986 S.C. 1643
2 AIR 1974 S.C. 1059
1
100 L.W. 278
2
100 L.W. 774
3 98 L.W. 25 S.C.
1
1981 3 S.C.C. 36
2 1981 3 S.C.C. 103
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1992 SCC OnLine Mad 103 : (1993) 1 LW 331

Madras High Court

C.R.P. allowed/Case remanded.

3. Facts that seem to be undisputed are,

expansion of his business premises, and thus additional accommodation could be

On the question of compelling necessity of additional accommodation for expansion of

“Coming to the second point it is an admitted fact that the landlord/petitioner is

not so satisfied he shall make an order rejecting the application:

8. In another judgment in Purushottam Das v. Addl. District and Sessions Judge,

9. In Bhaichand Ratanshi v. Laxmishanker Tribhovan3 , the Supreme Court interpreted

10. In Om Prakash v. Bhagwan Das1 , the Supreme Court, however, observed:

paragraphs of the said judgment.

extent of indicating that having obtained additional accommodation in the same

(2) Where an application is made for stay of execution

Rule 29, of Order 41 of the Code reads as follows:

1990, for which purpose he had already moved an application on 4.9.1991. He

1) The judgments of the Courts below are set aside;

5) There shall be however no order as to

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