opinion, its answer depends upon the proper
interpretation of the definition of the word "family" as
defined in Section 3(g) of the Act. It reads as under:
“3(g) “Family”, in relation to a landlord or
tenant of a building, means, his or her-
(i) spouse;
(ii) male lineal descendants;
(iii) such parents, grandparents and any
unmarried or widowed or divorced or
judicially separated daughter or
daughter of a male lineal descendant, as
may have been normally residing with
him or her,
and includes, in relation to a landlord, any
female having a legal right of residence in
that building;”
25) Perusal of the afore-quoted definition would go to
show that family in relation to landlord or tenant of a
building would include (1) spouse (2) male lineal
descendants (3) such parents, grandparents,
unmarried or widowed or divorced or judicially
separated daughter or daughter of a male lineal
descendant as may have been residing with the
landlord. The definition further says, "Family”
includes in relation to landlord, any female having a
legal right of residence in that building.
26) The inclusive part of the definition, which is
enacted only for the benefit of “female” in relation to
the landlord, adds one more category of person in
addition to those specified in clauses (i) to (iii), namely,
“any female having a legal right of residence in that
building”.
27) A fortiori, any female, if she is having a legal right
of residence in the building, is also included in the
definition of “family” in relation to landlord regardless
of the fact whether she is married or not. In other
words, in order to claim the benefit of expression
"family", a female must have a "legal right of residence"
in the building. Such female would then be entitled to
seek eviction of the tenant from such building for her
need.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 9727 OF 2016
Gulshera Khanam Vs Aftab Ahmad
Dated:September 27, 2016
Citation: 2016 SCCONLINESC1001,(2016) 9 SCC414
2) This appeal is filed against the final judgment
and order dated 17.01.2012 passed by the High
Court of Judicature at Allahabad in Civil Misc. Writ
Petition No. 65612 of 2011 whereby the High Court
allowed the writ petition filed by the
respondent-tenant and set aside the order dated
04.03.1999 of the Prescribed Authority in U.P.U.B.
Case No. 13 of 1994 and order dated 24.08.2011 of
the Additional District Judge, Aligarh in U.P.U.B.
Appeal No. 07 of 1999.
3) Facts of the case need mention, in brief, infra
to appreciate the controversy involved in the appeal.
4) The appellant is the landlady of the shop being
Shop No. 6 situated on the Dodhpur Road, Aligarh,
Building No. 4/569B. The respondent is the tenant
in Shop No. 6 and doing business of selling
Footwear (shoes and sandals) in the name of Khan
Brothers on a monthly rent of Rs.100/-.
5) There are in all 7 shops in the building in
which suit shop in situated. Except Shop No.7, all
are occupied by different tenants. Shop No. 7 is in
occupation of the appellant wherein her daughter
Dr. Naheed Parveen is doing medical practice.
Initially, Shop No. 7 was occupied by the husband
2Page 3
of the appellant, Dr. Ahsan Ahmed, who was
practicing medicines in the said shop and after his
death, the said shop remained closed for about
two-three years and after that her daughter started
practicing medicines there.
6) According to the appellant, Shop No. 7 is about
16.9 ft. x10 ft. in area and is inadequate for running
clinic.
7) On 11.02.1994, the appellant personally
requested the respondent to vacate Shop No. 6 but
he did not vacate. Therefore, the appellant filed an
application under Section 21(1)(a) of Uttar Pradesh
Urban Buildings (Regulation of Letting, Rent and
Eviction) Act, 1972 (hereinafter referred to as “the
Act”) in the Court of the Prescribed Authority/Civil
Judge, Senior Division, Aligarh being U.P.U.B. Case
No. 13 of 1994 seeking release of Shop No. 6 in her
favour for her bona fide requirement and genuine
3Page 4
need in comparison to the need of the respondent. It
was alleged that the appellant’s daughter, who is a
doctor and running her private clinic in Shop No. 7
is finding it difficult and inconvenient to run the
clinic due to space constraint in Shop No. 7 and it is
for this reason she requires adjacent Shop No. 6 so
that both Shops, i.e., 6 and 7 could be used for
running the clinic in a comfortable manner. It was
also alleged that the appellant’s one son has done
his MBBS and is doing M.D. He too would do his
practice in the shop in question. It was alleged that
there would be no space constraint once both the
Shops (6&7) are clubbed together. It was further
alleged that the appellant has no other shop
available except Shop No. 6 which is most suitable
for expansion of clinic being next to Shop No. 7. It
was also alleged that the respondent is having his
own shops in the same area and hence even if he
4Page 5
vacates the shop in question, there will be no
hardship to him.
8) The respondent filed his written statement to
the application denying the need of the
appellant-landlady as bona fide or genuine. Parties
adduced evidence.
9) By order dated 04.03.1999, the Prescribed
Authority allowed the application and directed the
respondent-tenant to vacate the shop in question
within 3 months of the date of the order and to give
the vacant possession to the appellant-landlady and
also pay by way of damages two years’ rent amount
within 30 days from the date of the order. It was
held that the appellant’s need for using Shop No. 6
is bona fide and genuine and that it is required for
expansion of clinic run by the appellant’s daughter
in Shop No. 7 and her son. It was held that the
appellant has no other suitable shop in city where
5Page 6
her daughter/son can run their clinic. It was also
held that the respondent has other shops for
running his business in the same locality and,
therefore, there would be no hardship caused to the
respondent.
10) Felt aggrieved by the said order, the
respondent-tenant filed an appeal being U.P.U.B.
Appeal No. 7 of 1999 under Section 22 of the Act
before the Additional District Judge, Aligarh. By
order dated 02.02.2000, the appellate court allowed
the appeal and set aside the order dated 04.03.1999
on the ground that the Presiding Officer has no
jurisdiction to pass the order.
11) Against the said judgment/order dated
02.02.2000, the appellant-landlady filed C.M.W.P.
No. 10669 of 2000 before the High Court. The High
Court by order dated 18.02.2011 allowed the
petition and set aside the order dated 02.02.2000
6Page 7
and remanded the matter to the appellate Court for
deciding the same on merits in accordance with law.
12) Thereafter by order dated 24.08.2011, the
appellate court dismissed the appeal (U.P.U.B.
Appeal No. 7 of 1999) of the respondent-tenant and
confirmed the order dated 04.03.1999 passed by the
Prescribed Authority.
13) Feeling aggrieved by the said order, the
respondent-tenant filed C.M.W.P. No. 65612 of 2011
before the High Court.
14) By impugned judgment dated 17.01.2012, the
High Court allowed the writ petition and set aside
the order dated 04.03.1999 of the Prescribed
Authority and order dated 24.08.2011 dismissing
the appeal of the respondent-tenant. The High
Court held that firstly, the appellant’s daughter- Dr.
Naheed Parveen is not a member of family as
defined under Section 3(g) of the Act because she is
7Page 8
a married daughter whereas Section 3(g)(iii) include
only an “unmarried daughter”. Secondly, it was held
that for this reason, the appellant could not seek
eviction for the need of her married daughter; and
lastly, it was held that the appellant’s need is not
bona fide.
15) Against the said judgment, the
appellant-landlady has filed this appeal by way of
special leave before this Court.
16) Heard Mr. Salman Khurshid, learned Senior
Counsel, for the appellant and Mr. V.K. Garg,
learned senior counsel, for the respondent.
17) Mr. Salman Khurshid, learned counsel for the
appellant (landlady) while assailing the legality and
correctness of the impugned judgment of the High
Court urged three submissions.
18) His first submission was that the High Court
erred in allowing respondent's writ petition by setting
8Page 9
aside the order of the appellate court and the
Prescribed Authority and thereby erred in dismissing
the appellant's eviction petition filed under Section 21
of the Act.
19) His second submission was that the High Court
erred in holding that the married daughter of landlady
does not fall within the definition of an expression
"Family" as defined in Section 3 (g) of the Act. Learned
counsel urged that the High Court failed to notice that
the definition of "family" is an inclusive definition and
includes therein "any female having a legal right of
residence in the building (tenanted accommodation)".
Learned counsel pointed out that since it was an
admitted fact that the appellant's husband (Muslim by
religion) died intestate leaving behind daughter-Dr.
Naheed Parveen as one of his heirs, she inherited an
undivided but specific ownership right and interest in
the suit building as provided in Mahomedan Law of
inheritance. Learned counsel contended that the word
"female" used in the definition of family would,
therefore, include "daughter" regardless of the fact as
to whether she is married or not provided she is able to
show that she has an interest in the suit building
which, in turn, entitles her to claim a right of residence
in such building. It was urged that the daughter of the
appellant did inherit interest in the suit building as
one of the co-owners which, in turn, entitles her to
claim a right of residence in the suit building by virtue
of she being a female.
20) His third submission was that when two courts
below, i.e., Prescribed Authority and the first appellate
court after appreciating oral and documentary
evidence, held that the appellant's need was genuine
and bona fide and that she has no other suitable shop
of her own in the city where her daughter could shift
her clinic and lastly, since the respondent (tenant) is
10Page 11
having his more than one alternative suitable shop
near to the suit shop, the appellant is entitled to claim
the respondent’s eviction from the suit shop, the High
Court while hearing writ petition under Article 227 of
the Constitution of India had no jurisdiction to upset
the concurrent findings of fact. It was urged that these
concurrent findings were binding on the High Court.
Learned counsel further urged that it was more so
because the findings were neither perverse to the
extent that no average judicial person could ever reach
to such conclusion nor these findings were against any
provisions of law and not against pleadings or
evidence.
21) In reply, learned counsel for the respondent
(tenant) supported the reasoning and the conclusion
arrived at by the High Court and urged that the
impugned judgment does not suffer from any error.
22) Having heard the learned counsel for the parties
11Page 12
and on perusal of the record of the case, we find force
in the submissions urged by learned counsel for the
appellant.
23) Two questions arises for consideration in this
appeal, first, whether the High Court was justified in
reversing the concurrent findings of the two courts
below and thereby was justified in dismissing the
appellant's eviction petition filed against the
respondent under Section 21 of the Act by holding that
the appellant's need set up in the petition for her
daughter was not bona fide; and second, whether the
finding that the appellant's married daughter does not
fall within the meaning of the word "family" as defined
under Section 3(g) of the Act and, therefore, her need
cannot be considered under Section 21 of the Act for
granting eviction of the tenant is proper or not?
24) Coming to the second question first, in our
opinion, its answer depends upon the proper
interpretation of the definition of the word "family" as
defined in Section 3(g) of the Act. It reads as under:
“3(g) “Family”, in relation to a landlord or
tenant of a building, means, his or her-
(i) spouse;
(ii) male lineal descendants;
(iii) such parents, grandparents and any
unmarried or widowed or divorced or
judicially separated daughter or
daughter of a male lineal descendant, as
may have been normally residing with
him or her,
and includes, in relation to a landlord, any
female having a legal right of residence in
that building;”
25) Perusal of the afore-quoted definition would go to
show that family in relation to landlord or tenant of a
building would include (1) spouse (2) male lineal
descendants (3) such parents, grandparents,
unmarried or widowed or divorced or judicially
separated daughter or daughter of a male lineal
descendant as may have been residing with the
landlord. The definition further says, "Family”
includes in relation to landlord, any female having a
legal right of residence in that building.
26) The inclusive part of the definition, which is
enacted only for the benefit of “female” in relation to
the landlord, adds one more category of person in
addition to those specified in clauses (i) to (iii), namely,
“any female having a legal right of residence in that
building”.
27) A fortiori, any female, if she is having a legal right
of residence in the building, is also included in the
definition of “family” in relation to landlord regardless
of the fact whether she is married or not. In other
words, in order to claim the benefit of expression
"family", a female must have a "legal right of residence"
in the building. Such female would then be entitled to
seek eviction of the tenant from such building for her
need.
28) Coming to the facts of this case, it is not in
dispute that Dr. Ahsan Ahmad was the original owner
of the building in question. He died intestate and,
therefore, on his death, the appellant, two sons and
four daughters inherited the estate left by Dr. Ahsan
Ahmad, which included the building, in question.
29) Since Dr. Ahsan Ahmad was Mahomedan, his
entire estate including the building in question,
devolved on the appellant (wife), his two sons and four
daughters as per the shares defined in Hanafi Law of
Inheritance. The shares of the heirs which are defined
in the Table in Chapter VII titled "Hanafi Law of
Inheritance" (at page 66-A of Mulla-Principles of
Mahomedan Law-20th Edition) would show that
daughter is also entitled to claim her specific share in
her father’s estate. The daughter’s share is defined in
column Nos. 2, 3 and 4 at serial number 7, in the
table. It reads as under:
(1)
Sharers
(2)
Normal Share
(3)
Conditions under
which the normal
share is inherited
(4)
This column sets
out-
(A) Shares of
15Page 16
Sharers Nos.
3,4,5,8 and 12 as
varied by special
circumstances;
(B) conditions
under which
sharers Nos.
1,3,7,8,11 and 12
succeed as
Residuaries
Of one Of two or
more
collectively
(b)
7. Daughter 1/2 2/3 When no son [With the son
she becomes a
residuary: see
Tab. Of
Res.,No.1]
30) Dr. Naheed Parveen being the daughter,
accordingly, received her share and became co-owner
of the building along with other co-sharers. Being a
co-owner, she got a legal right of residence in the
building as provided under Section 3(g) of the Act. In
this way, she fulfilled the definition of “family” under
Section 3 (g) of the Act.
31) In the light of foregoing discussion, we are unable
to agree with the reasoning of the High Court and
while reversing the finding answer the second question
in appellant's favour and accordingly hold that the
appellant was entitled to claim eviction of the
16Page 17
respondent from the building in question for the need
of her daughter Dr. Naheed Parveen for running her
clinic as the daughter was having a legal right of
residence in the building in question.
32) This takes us to examine the first question as to
whether the High Court was justified in its writ
jurisdiction to reverse the concurrent findings of the
two courts below and was, therefore, justified in
holding that the appellant's (landlady) need for
expansion of clinic run by her daughter was not bona
fide.
33) The Constitution Bench of this Court settled the
law relating to exercise of jurisdiction by the High
Court while deciding revision in rent matters under the
Rent Control Act in Hindustan Petroleum Corpn.
Ltd. vs. Dilbahar Singh, (2014) 9 SCC 78, Justice
R.M. Lodha, the learned Chief Justice speaking for the
Bench held in para 43 thus: (SCC pp. 101-102)
17Page 18
“43. We hold, as we must, that none of
the above Rent Control Acts entitles
the High Court to interfere with the
findings of fact recorded by the first
appellate court/first appellate authority
because on reappreciation of the
evidence, its view is different from the
court/authority below. The
consideration or examination of the
evidence by the High Court in
revisional jurisdiction under these Acts
is confined to find out that finding of
facts recorded by the court/authority
below is according to law and does not
suffer from any error of law. A finding
of fact recorded by court/authority
below, if perverse or has been arrived at
without consideration of the material
evidence or such finding is based on no
evidence or misreading of the evidence
or is grossly erroneous that, if allowed
to stand, it would result in gross
miscarriage of justice, is open to
correction because it is not treated as a
finding according to law. In that event,
the High Court in exercise of its
revisional jurisdiction under the above
Rent Control Acts shall be entitled to
set aside the impugned order as being
not legal or proper. The High Court is
entitled to satisfy itself as to the
correctness or legality or propriety of
any decision or order impugned before
it as indicated above. However, to
satisfy itself to the regularity,
correctness, legality or propriety of the
impugned decision or the order, the
High Court shall not exercise its power
as an appellate power to reappreciate or
reassess the evidence for coming to a
18Page 19
different finding on facts. Revisional
power is not and cannot be equated
with the power of reconsideration of all
questions of fact as a court of first
appeal. Where the High Court is
required to be satisfied that the
decision is according to law, it may
examine whether the order impugned
before it suffers from procedural
illegality or irregularity.”
34) Coming now to the facts of this case, keeping in
view the principle of law laid down in the
aforementioned case and on perusal of the order of the
Prescribed Authority/Civil Judge and the first
appellate court, we find that both the courts properly
appreciated the facts and evidence adduced by the
parties and on that basis recorded all necessary
findings (detailed above) in favour of the appellant and
granted decree of eviction against the respondent. This
the Prescribed Authority/Civil Judge and the first
appellate court could do in their respective jurisdiction
and, in our opinion, both the courts rightly did it in
the facts of this case.
19Page 20
35) Likewise, when we peruse the impugned
judgment, we find, as rightly urged by the learned
counsel for the appellant, the High Court did not keep
in mind the aforesaid principle of law laid down by the
Constitution Bench in Hindustan Petroleum Corpn.
Ltd. (supra) so also the principle laid down by this
Court in relation to exercise of jurisdiction under
Article 227 of Constitution of India in the case of
Surya Dev Rai vs. Ram Chander Rai & Ors., (2003) 6
SCC 675 while deciding the writ petition and
proceeded to decide like the first appellate court. The
High Court as is clear from the judgment probed all
factual aspects of the case, appreciated evidence and
then reversed the factual findings of the appellate
court and the Prescribed Authority. This, in our view,
was a jurisdictional error, which the High Court
committed while deciding the writ petition. In other
words, the High Court, in our view, should have
20Page 21
confined its inquiry to examine as to whether any
jurisdictional error was committed by the first
appellate court while deciding the first appeal. It was,
however, not done.
36) In our considered opinion, the question in
relation to the bona fide need of the appellant's
daughter to expand the activities of running the clinic
was rightly held by the Prescribed Authority and the
first appellate Court in appellant’s favour by holding
the appellant’s need to be bona fide and genuine. We
find no ground on which the High Court could have
upset the concurrent finding on this question in its
writ jurisdiction under Article 227, which is more or
less akin to revisional jurisdiction of the High Court.
The High Court also failed to hold that finding of the
two courts were so perverse to the extent that any
judicial person could ever reach to such conclusion or
that the findings were against any provision of law or
were contrary to evidence adduced etc.
37) The High Court, in our view, should have seen, as
was rightly held by the two courts below, that the
appellant's daughter had been running her medical
clinic in shop No. 7 for quite some time. This fact was
not in dispute. Though a feeble attempt was made by
the respondent contending that after appellant's
daughter's marriage, she has started living in
Moradabad and, therefore, her need to run the clinic
and expand its activity is not bona fide but this plea
did not find favour with Prescribed Authority and the
first appellate Court and, in our view, this being a pure
finding of fact, was binding on the High Court in its
writ jurisdiction.
38) In our considered opinion, the appellant's need
for additional space for the expansion of clinic
activities for her daughter cannot be said to be unjust
or unreasonable in any manner. It is for the reasons
that, firstly, the suit shop No.6 is adjacent to Shop No.
7 and secondly, the need for expansion of clinic could
be accomplished effectively only with the use of two
shops, which are adjacent to each other. It is a well
settled principle laid down by this Court in rent
matters that the landlord is the sole judge to decide as
to how much space is needed for him/her to start or
expand any of his/her activity. This principle was
overlooked by the High Court while deciding the issue
of need. That apart, the High Court should have also
seen that the two courts below have recorded a finding
that the respondent was having his own shops in the
same area where he could shift his existing business
activity without suffering any comparative hardship.
39) In the light of aforementioned factual findings of
the courts below, in our view, there was no
justification on the part of the High Court to have
probed into any factual issues again in depth by
undertaking appreciation of evidence like a first
appellate court and reversed the findings.
40) In view of foregoing discussion, we are unable to
agree with the reasoning and the conclusion arrived at
by the High Court. The impugned judgment is,
therefore, not legally sustainable and is accordingly set
aside. As a result, the order dated 04.03.1999 of
Prescribed Authority in U.P.U.B. No. 13/1994 and
order dated 24.08.2011 of the Additional District
Judge, Aligarh in U.P.U.B. Appeal No. 7/99 are
restored. The respondent is, however, granted three
months’ time to vacate the suit shop from the date of
this order subject to furnishing of the usual
undertaking in this Court to vacate the suit premises
within 3 months and further, the respondent would in
addition to the directions given by the Prescribed
Authority also deposit all arrears of rent till date at the
same rate at which he had been paying monthly rent
to the appellant (if there are arrears) and would also
deposit three months’ rent in advance by way of
damages for use and occupation as permitted by this
Court. Let the undertaking, arrears of rent, damages
for three months and compliance of direction to
deposit damages by Prescribed Authority and the cost
awarded by this Court be deposited within one month
from the date of this order.
41) The appeal is accordingly allowed with cost,
which is quantified at Rs.10000/-, to be paid by the
respondent to the appellant.
………...................................J.
[J. CHELAMESWAR]
…...……..................................J.
[ABHAY MANOHAR SAPRE]
New Delhi;
September 27, 2016
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