Mitter, J. - (1.) This is an appeal by special leave from a judgment and order of the Mysore High Court on a Revision Petition filed under Section 50 of the Mysore Rent Control Act, 1961.
(2.) The facts are as follows. The respondent before us was the landlord (hereinafter referred to as the petitioner) of the appellant and had filed a petition for eviction of the tenant on the ground of bonafide and reasonable requirement. He was a partner of Chandra Bhavan Boarding and Lodging situate close to the premises in which the appellant was a tenant. He appears to have been carrying on a flourishing business as a hotelier. Formerly there were two businesses which were separated in 1962 According to the petitioner the hotel building though constructed recently had no space which could be used as a godown and the materials required to be stored for the purpose of running the hotel were being kept in the godown of Bombay Chandra Bhavan, Avenue Road. The appellant has been carrying on business in this premises for over twenty years. It was in possession of the entire building but in terms of a compromise it gave up the first and second floors of the building which are now in the possession of the landlord. There was evidence to the effect that these two floors were being used by the landlord for purpose of the hotel. There was further evidence that one room which had been vacated some six months before the present ejectment proceedings by a tin smith was being utilised as an additional kitchen. The portion in possession of the appellant measured approximately 60 x 17. The learned Munsif who beard the petition in the first instance was unable to hold that the petitioner bonafide required the space occupied by the tenant and he dismissed the petition. On appeal, the District Judge was not satisfied that the petitioner had placed sufficient material before the court to satisfy that the premises which were already in his occupation was not sufficient for him to serve as a godown. He however observed that: "When the landlord wants to occupy a part of his own building. ..... there is nothing intrinsically malafide about it, But it is not enough if the bonafides are proved. The petitioner must further prove the reasonable requirement. . . . ." On the evidence he held that the landlord had failed to satisfy the court that he reasonably required the premises. In the result he dismissed the appeal.
(3.) Section 50 of the Mysore Rent Control Act, 1961 (here in after referred to as the Act) gives the High Court power to call for and examine the records relating to any decision given or proceeding taken by the District Judge for the purpose of satisfying itself as to the legality or correctness of such decision, order or proceeding and it further empowers the High Court to pass such order as it thinks fit. The learned Judge of the High Court examined the evidence and differing from the finding at the District Judge came to the conclusion that the landlord had proved that he reasonably required the premises for his own use and occupation. The High Court held that the burden of proving that eviction would cause greater hardship on the tenant lay on him and took the view that he had not discharged that burden. Counsel for the appellant contended first that it was not open to the High Court in exercise of its revisionary jurisdiction to differ from the concurrent view of the two lower courts and, secondly, it had wrongly placed that burden of proof of greater hardship on the tenant and this vitiated its ultimate conclusion. As the revisionary powers are couched in very wide terms we are not inclined to accept the first contention. To appreciate the second point urged, it is necessary to note provisions of the Act which are as follows : "21 (1). Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or other authority in favour of the landlord against the tenant ; Provided that the court may on an application made to it, make an order for the recovery of possession of a premises on one or more of the following grounds only, namely :-- (a) to (g) ********** (h) that the premises are reasonably and bona fide required by the landlord for occupation by himself or any person for whose benefit the premises are held or where the landlord is a trustee of a public charitable trust, that the premises are required for occupation for the purposes of the trust : ********** " Sub-section (4) of this section provides that "No decree for eviction shall be passed on the ground specified in Clause (h) of the proviso to Sub-section (1) if the Court is satisfied that, having regard to all the circumstances of the case including the question whether other reasonable accommodation is available for the landlord or the tenant greater hardship would be caused by pass the the decree than by refusing to pass it. If the Court is satisfied that no hardship would be caused either to the tenant or to the landlord by passing the decree in respect of a part of the premises, the Court shall pass the decree in respect of such part only. Explanation ..............." In dismissing the petition the learned Munsif remarked "The petitioner is admittedly in possession of certain portion of the building used as a godown or a store room. The respondents are not in possession of any other building If they are evicted, it is they that will be put to greater difficulty to store a large quantity of articles..... His (the petitioners) business can still be run while the respondent has to close down his business. We cannot lose sight of the fact that it is very difficult to secure premises for business purposes in a business locality. Therefore I say that greater hardship is likely to be caused to the respondent if they are evicted than to the petitioner." The learned District Judge held that in the view taken by him the question of comparative hardship did not arise for consideration and even if it did he was inclined to concur with the trial court on the facts of the case that greater hardship would be caused by passing a decree for eviction. He said: "The petitioner makes a vague statement that he requires the premises for purposes of godown. He is already in possession of godown. He has been managing with it and he does not place any material as to how his business suffers or to what extent it suffers if the possession of the premises is not restored to him. On the other hand, the respondent has deposed that his business would suffer a great set back if the premises are changed." In discussing the question of hardship the learned Judge of the High Court started with the observation that: "the respondent has not produced satisfactory evidence to prove that greater hardship would be caused to him than to the landlord if an order of eviction is passed. The evidence on record is meagre to sustain the findings of the courts below on this point." Relying on an earlier decision of the High Court in Madhadevappa v. Mallavva he proceeded to consider the evidence on the basis that "the burden of proving that greater hardship would be caused to the respondent-tenant was on the tenant" and ultimately held that he had not discharged that burden.;