Gulab C. Gupta, J.
1. This is plaintiffs second appeal Under Section 100, Civil Procedure Code against the judgment and decree, dated 30th October, 1984 passed by V Additional Judge to the Court of District Judge, Jabalpur in Civil Appeal No. 20-A of 1981, reversing the judgment and decree, dated 7-8-1981, passed by 8th Civil Judge, Class II, Jabalpur in Civil Suit No. 47-A of 1981, dismissing the appellant's suit for eviction of the respondents from the suit shop.
2. The shop in dispute is known as House No. 58, Sadar Bazar, Jabalpur and is admittedly in occupation of the respondents who are tenants thereof and are carrying on their dry cleaning business under the name and style of 'Sunshine Dry Cleaners'. There is no dispute that the appellant is the owner and landlord in relation to the suit house. She filed the suit for eviction of respondents on the ground that she needs the suit shop bona fide tailoring business of her son Mohd. Idrees for which she has no other alternative accommodation of her own in the City. It was also her case that the son was carrying on business in a small place which is situated in a lane and is otherwise inadequate for his business needs. The respondents denied the claim and submitted that not only the present shop of Mohd; Idrees was suitable for purposes of his requirements but they have another accommodation in their possession. Learned trial Judge on consideration of evidence adduced by the parties held that the appellant needed the suit shop bona fide for her son's business and that the present shop of her son cannot be treated as suitable alternative accommodation. On these findings the suit was decreed. The learned lower appellate Court was of the opinion that though the need of the appellant's son for business was real, the same can be satisfied by the present shop itself and therefore, there was no justification for eviction of the respondents. On these findings the decree passed by the trial Court was set-aside and suit of the appellant was dismissed. That is how the matter is before this Court for its consideration.
3. This Court while admitting this appeal for final hearing on 2-4-1985 framed the following substantial question of law for its consideration : -
'Whether the first appellate Court erred in law in reversing the decree passed by the trial Court for eviction of the defendants from the suit accommodation on ground specified in clause (f) of Section 12(1) of the M. P. Accommodation Control Act, 1961 ?'
Both the parties have been fully heard on the aforesaid question which is the only question requiring decision of this Court.
4. There are many misgivings about our rent laws. There is a sizable section of our community which includes lawyers and judges as well, who term it pro-tenant. Behind this thinking is the realization that between the landlord and tenant, the tenant is the weaker party and since Rent Laws are beneficial legislations, they are pro-tenant. This section does not hesitate in carrying the logic further and holds that our Rent Laws are anti-landlord. This, however, is not the correct view of the matter. That our Rent Laws are beneficent legislations is a fact beyond doubt. These laws are neither pro-tenant nor anti-landlord. These laws aim at solving a social problem i.e. housing, of national importance. Large number of our people require accommodation. Their economic condition does not permit them to build them for themselves and therefore, they necessarily depend on others. That their economically disadvantageous position should not result in their exploitation, is, of course, the concern of this law. To this extent the Rent Laws certainly protect tenants who are weaker of the two parties. But the need of the tenant would not be satisfied if those who have the financial capacity and resources to build houses do not build them. Under the circumstances, these Laws must also aim at encouraging landlords so that they continue to build and make them available for the benefit of those who are not able to build. The need of tenants and encouragement to landlord are therefore two aspects of the same problem and both have to be solved by our Rent Laws or else the problem will never be solved. That is why all our Rnt Laws guarantee availability of the tenanted premises to the landlord on his establishing bona fide requirement of the same. These laws, at the same time, protect a tenant from exploitation either by rack-renting or because of shortage of accommodation. They thus, serve a social cause and ensure social justice to both the parties. It is, therefore, not fair for any one to think that these laws are pro-tenant or anti-landlord. Indeed, these laws secure a rational synthesis of conflict between landlords and tenants by ensuring to both of them whatever is legitimately due to them. These very sentiments have been expressed by our Supreme Court in Amarjitsingh v. Khatoon Quamarain, AIR 1967 SC 741 in the following words : -
'The rent restricting Acts are beneficial legislations for the protection of the weaker party in the bargains of letting very often. These must be so read that they balance harmoniously the fights of the landlords and the obligations of the tenants. The Rent Restriction Acts deal with the problem of rack-renting and shortage of accommodation. It is in consonance with the recognition of the right of both the landlord and the tenant that a harmony is sought to be struck whereby the bona fide requirements of the landlords and the tenants in the expanding explosion of need and population and shortage of accommodation are sought to be harmonised and the conditions imposed to evict a tenant are that the landlord must have bona fide need and secondly he should not have in his possession any other reasonably suitable accommodation. ' (Para 18).
It would, therefore, be the obligation of this Court to keep this object and purpose of the Act in view and to consider facts and circumstances of this case in a manner that effectuates them properly.
5. Section 12(f) of the Act has many parallels in rent control legislations of other States and hence enough judicial guidance is available. In Hasmat Raj v. Raghunath Prasad, AIR 1961 SC 1711 the Supreme Court held that before a landlord can claim eviction of his tenant, he must prove his bona fide need as also the fact that he does not have any other suitable accommodation for that purpose. This has been recently approved in D. V. V. G. Satyanarayana v. Raghavish, AIR 1987 SC 406. There should, therefore, be no difficulty in holding that the landlord-plaintiff must prove his 'bona fide need' of the tenanted house and also that he does not have any other suitable accommodation of his own in the town or city for that purpose. In Mattulal v. Radehlal, AIR 1974 SC 1596, it was held that a finding about bona fide need must be based on objective facts and the Court cannot take irrelevant circumstances into consideration. This view has been recently approved in Govind v. Dr. Jeetsingh, AIR 1988 SC 365. In Mattulal's case (supra) the Court held that consideration, that the landlord has made no preparations for starting his business on the tenanted premises was wholly irrelevant. In Budhwanti v. Gulabchand, AIR 1987 SC 1484 the court held that when the lower appeal Court disturbs the finding of the trial Court on bona fide need on irrelevant consideration and erroneous assumption, the High Court would be well within its rights in setting aside in a second appeal a patently erroneous finding in order to render justice to the party affected by it. In this case the facts that tenant was a refugee from West Pakistan and had no shop of his own in the city, that from the point of view of comparative hardship the tenant would suffer more than the landlord and that the portion in occupation of the tenant was only a small part of the building, were held to be extraneous, amounting to misdirection. The High Court, had therefore, reversed the judgment. The Supreme Court approved the view taken by the High Court. In Hiralal Kapur v. Prabhu Chaudhary, AIR 1989 SC 852 it was held that in ascertaining the need of residence, in the case of a lawyer, the fact that a room has to be used as an office would not be sufficient to convert the need into the non-residential need. The Court emphasised application of pragmatic test and discarded the microlegal analysis of the provision. In Vinod Kumar v. Surjit Kaur, AIR 1987 SC 2179 the Court held that concurrent findings of facts are binding upon the High Court in second appeal only when 'findings have been rendered with reference to facts and not on the basis of non-existent material and baseless assumptions.' In this case the appellate authority had assumed that the tenant was claiming only a hall of the tenanted house and hence her requirement was not bona fide. This finding was set aside by the High Court in second appeal. The Supreme Court held that even though it was a finding of fact, it was not binding upon the High Court as it was based on erroneous assumption. It is, therefore, plain that the High Court is under obligation to ascertain whether the finding about bona fide requirement is a correct and reasonable finding and is not vitiated by erroneous assumptions and irrelevant considerations.
6. These requirements were also considered necessary to effectuate objects of the legislation and were read into it even though the provision did not specifically mentioned them. In Hameeda Hardware Stores v. B. Mohan Lal Sowcar, AIR 1988 SC 1060 the Supreme Court was considering Section 10(3)(a) of the T. N. Buildings (Lease and Rent Control) Act, 1960 which did not mention 'bona fide' while mentioning the 'requirement of the landlord.' The Court read this provision along with Section 10(3)(e) of that Act and held that unless the claim of the landlord based on his need was also 'bona fide' he cannot get a decree for eviction of his tenant. While emphasising its importance, the Court observed as under : -
'If the requirement of 'claim' being 'bona fide' as contained in Section 10(3)(e) is construed to mean that genuineness of the need of the landlord for the non-residential building is not to be considered and the circumstance that the landlord on the date of making the application is factually carrying on business and has no non-residential building of his own in his occupation in the city, town or village concerned is to be construed sufficient to make his claim bona fide, the tenancy of no non-residential building will be secure. It will be preposterous to attribute such an intention to the legislature. Such a contingency should be avoided as would be against the very object of the Act itself. The need of landlord should be genuine. That is the object of enacting clause (e) of Section 10(3) of the Act. When once we reach the above conclusion it is not enough that the landlord should merely desire to use or occupy the premises. What is necessary is that he should bona fide need them for his own use and occupation....'
The Supreme Court thus demonstrated its acceptance of the decisions in Mattulal's case (supra) and Phiroze B. Desai v. Chandrakant M. Patel, AIR 1974 SC 1059 and clarified that the law as contained in these decisions is the correct law.
7. Principles that can be culled out from these decisions are : -
(a) That the need of the landlord for the tenanted premises must be 'bona fide' i.e. real, genuine and just,
(b) that a finding of 'bona fide' need' must be based on objective facts, pleaded and proved in accordance with law,
(c) that the finding on 'bona fide need' must not be based on erroneous assumption and irrelevant considerations, and
(d) that though a finding on 'bona fide need' is a finding of fact, the High Court would be entitled to interfere with the same if it is based on erroneous assumptions and irrelevant considerations.
8. The facts of this case may now be examined in the context of these principles.
Since the question of available alternative accommodation is relatable to the need, it may first be ascertained as to what is the size and extent of business for which the suit accommodation is claimed. A perusal of the plaint (para 2) indicates that it is claimed that the appellant's son Mohd. Idrees is carrying on his tailoring business in a premises which are unsuitable and inadequate for his requirement. These allegations are, of course denied in the written statement. Appellant as P. W. 1 deposed that her son has 3-4 sewing machines and employed 2-3 servants. According to her, the present accommodation is wholly inadequate for this purpose and even customers have to keep standing outside. She was extensively cross-examined but remained firm on this point. In cross-examination she explained that her son has two sewing machines and one button-hole making machine and employed two persons for the purpose. The plaintiffs husband, Mohd. Yasin (P. W. 2) has also deposed that his son has 3 sewing machines for stitching and one machine for making borders. (Para 19). In cross-examination he was asked several questions about the dimensions of the present shop but nothing was asked about machines and persons employed for the purpose. Mohd. Idrees (P. W. 3) states that he has 4 machines and 3 or 4 persons are employed by him in connection with his business. (Para 3). Though he was cross-examined about the availability of shop nothing was asked to him to doubt his statement about number of machines and persons employed for his business. Defendant Chandanlal (D. W. 1), however, states that Mohd. Idrees has only one machine and he has not seen any servant employed by him. (Para 6). In cross-examination (Para 34), he admitted that he cannot see the appellant's son's shop from his shop and therefore, he cannot say as to who works in that shop. In spite of that he insisted that it was his feeling that no one is employed by the appellant's son. Unfortunately, for this witness the other witnesses of the defendants do not support him. Gurubux Singh (D. W. 4) deposes that 3-4 machines are used in the shop of Mohd. Idrees who also employed one servant for the purpose. This witness admits in cross-examination that 3-4 machines are in use in the shop. From this evidence, it is apparent that appellant's son uses 3-4 machines in connection with his business. Since these machines need persons to operate, there is no difficulty in believing the appellant's evidence that at least two persons are employed by him to run these machines. If the appellant's son needs these machines and persons in connection with his business, it will require consideration if the present accommodation in his possession is sufficient for the purpose. Learned appeal Judge has wrongly and unjustifiably held that the shop in possession of Mohd. Idrees is 10'-9' x 16'. Apparently he was somehow out to reach the conclusion that the present shop was adequate and therefore, conveniently ignored evidence regarding size and dimension of the shop. Both the parties have filed their maps wherein the shop in possession of appellant's son has been shown. Map, Ex. P-32 indicates that the shop is 10'-9' on east side and 3'-9' at the west side. Its northern length, of course is 16-1' but it is only 13'-8' on southern side. Channanlal, D. W. 1 admitted these measurements in his cross-examination. (Para 23). It is, therefore, clear that the learned appeal Judge has taken non-existing facts into consideration and has committed a mistake similar to one appearing in Vinod Kumar's case (supra) obliging this court to interfere with the finding for doing justice between the parties. Can a tailor using 4 machines and employing two servants conveniently carry on business in this shop? Can this available shop be treated as reasonably suitable accommodation to satisfy his needs? This Court is unable to answer this question in affirmative and is of the opinion that the present shop is wholly inadequate for the purpose. The requirement of the appellant's son is for business and not for stroing these machines or material. In a business where machines are used, enough space has to be made available for movement etc. There has to be some place for cutting cloth. There has also to be a cabin for trial of clothes by customers, a show cause for displaying tailored clothes and some space for stroing material. If a person has the business enough to run 4 machines, he must also require some place to take measurements etc. of his customers. Almost every one has the experience of going to a tailoring shop and would be able to appreciate the aforesaid basic requirements. The present accommodation, from all reasonable standards is wholly inadequate for these purposes. The fact that the appellant's son is somehow carrying on business in the absence of any better accommodation cannot by itself be a ground for holding that the present accommodation is suitable and adequate. This Court is, therefore, unable to agree with the finding of the learned appellate Court and is pleased to set aside the same. In the opinion of this Court the appellant has established that he needed the suit premises bona fide for his present business. This Court regrets that the learned lower appellate Court has not correctly noted dimensions of the shop and has recorded his conclusions on the basis that the available shop was of 10'-9' x 16' size. It would add to the credit of our system of administration of justice if senior Judicial Officers like the appellate Judge deal with matters little more seriously and sincerely.
9. In the context of aforesaid, the location of the shop may also be noticed with a view to ascertain its suitability. A perusal of the map, Ex.P-1 sufficiently indicates that the suit shop is located on the main road whereas the shop of the appellant's son is located on the side lane. What is stated to be lane in this map is described as street No. 1 in the map, Ex.P-32.The road on which the suit shop is located is mentioned as Kings Way in Ex.P-32. Kings Way is admittedly the main road and therefore, the suit shop is situated on the main road. It is also clear that the shop in possession of the appellant's son is situated on a side street or lane. It should not take much discussion to distinguish between a road and street. A shop on the main road is, without doubt, more valuable than a shop located on a side street. It is, therefore, unfair to treat two situations as being similar and having the same importance. In the context of situation of suit shop on the main road, the distinction between street and lane is really not of much consequence. Now if a landlord prefers his shop on the main road for his own business, his preference cannot be held to be unreasonable. Even if the size of the shop situated on the main road and the shop situated on the lane be the same, the situation of one on the main road would make difference for the business. Main road shop would, without doubt, have more business utility than the shop on the side lane or street. The purpose of the inquiry is to ascertain whether the requirement of the appellant's son of the suit shop is bona fide and to consider in this context whether the available shop would be able to satisfy that requirement. Considering the situation of the available shop and its comparison with the suit shop, the suit shop is without doubt better for business This is however not to say that a decree for eviction can be given on the basis of situation alone. The proper approach would be to consider the extent of requirement, extent of availability of the place and its situation and then judge the reasonableness of the claim of the appellant's son. In such a situation the location of the shop will also require consideration. If a landlord cannot reasonably carry on his business in the available premises and for that purpose seeks the tenanted premises, the tenanted premises will be given to him even if it be little bigger than his requirement. Learned lower appellate Court has not considered this circumstance in its proper perspective and seems to be thinking that since the appellant's son had carried on his business on the side street since 1970, he had forfeited his right to carry on business on the main road. There may be several reasons why a person may continue his business on the side lane and may like to shift on the main road after some time. What has to be considered is his present requirement and reasonableness thereof. The fact that a landlord has suffered inconvenience for long cannot be a justification for requiring him to continue suffering inconvenience in future as well. This Court is, therefore, of the opinion that the learned lower appellate Court has relied upon a wholly extraneous matter for deciding such a vital question. This Court is of the view that situation of the shop on the side lane, itself, is a handicap for the business and adds to the unsuitability of the said accommodation. It shows the reasonableness of the appellant's son's demand to the shop situated on the main road as that will, without doubt serve business interest of appellant's son much better. In this view of the matter the fact that several other persons are carrying on tailoring business in the side street is not factor affecting the bona fide requirement. There are several constraints and unless persons in occupation of those shops have been examined, it would be difficult to say why they are continuing their business in that locality. It is also difficult to accept that if all those who have their shops in this side lane had the choice of shifting to a shop on the main road, they would not like to do so.
10. Learned lower appellate Court has unnecessarily dealt with future expansion of business of appellant's son, as that is not relevant for deciding a claim like the present one. It is the need at the present which requires consideration and not the future need. Under the circumstances, it was obligatory on the part of the learned lower appeal Judge to ascertain the extent of present requirement of the appellant's son. For this purpose the requirement of appellant's son to accommodate his 4 machines and men working thereupon together with other necessary requirements of a tailoring business, should have received attention. This Court had already considered the evidence in this regard into consideration and feels that the need of the appellant's son is real and bona fide, judged in the context of his present requirement.
11. Since the present shop of the appellant's son is the only shop in possession of the appellant and this shop is not found suitable to satisfy the bona fide need, it must be held that a case for respondent's eviction Under Section 12(l)(f) of the Act has been made out. There is no dispute that the appellant has no other accommodation of her own in the city.
12. In view of the discussion aforesaid, this Court is unable to sustain the impugned judgment and decree and is pleased to set aside the same. As a necessary consequence the decree for eviction passed by the learned trial Judge, is restored. Considering the fact that the respondents are having their business thereupon since long, it is directed that in case they give a written undertaking to the satisfaction of the trial Court that they would hand over vacant and peaceful possession of the suit shop by or before 31st December, 1988 and would also pay damages at the rate of rent payable by them till the date of delivery of possession, they will not be evicted from the suit shop in execution of this decree. The respondents must for the benefit, furnish the undertaking before the trial Court within one month from today. The appeal succeeds and allowed as aforesaid with costs. Counsel's fee as per rules.