SATYA BRATA SANYAL, J.

(1.) How Car the question "reasonably and good faith" required, as occurring in Section 11 (c) of Bihar Buildings (Lease, Rent and Eviction) Control Act, is justiciable in a Court of Law, falls for decision in this second appeal, which is at the instance of plaintiff-landlords who have failed in the Courts below to obtain eviction of their tenant on this ground.

(2.) The case of the plaintiff-landlord is that in order to start their own business, they acquired the disputed premise on 3-7-1973 for a sum of Rs. 45,000/-, in which building, the respondent is holding a shop from before, as a tenant on a monthly rent of Rs. 60/- only. The plaintiffs further case is that they have no independent business of their own, and they have no control over the affairs of the Hindu undivided family business, i. e., M/s. Mahadeo Bastra-lya, belonging to several members of their family. The disputed shop is near the tail-way station and according to them most suitable to fulfill their need and, therefore, they paid a higher price in its acquisition. The plaintiffs dont possess any vacant premise to start the proposed independent business. Plaintiffs thus bona fide and in good faith require the disputed premise,

(3.) On the other hand, the respondents case is that since the plaintiffs have their own joint family business, and they have not separated from the said business, the plaintiff cant be said to require the premise bona fide and in good faith. Respondents further case is that they are holding shop since 1943 in the disputed premise, which is their only source of livelihood.

(4.) The Courts below found that the plaintiffs live with their father and two other brothers, and also participate in the family business. Plaintiffs have, therefore, interest in the profits of the said business. The Courts below further found that plaintiffs father being half blind and the other brother being partially disabled, the management of the family business cant be exclusively in their band. Plaintiffs version, that the disputed shop was purchased by their own fund, was not accepted. On the contrary it was held that the fund was provided by their father. On the basis of the aforesaid finding it was held that the plaintiffs do not require premise bona fide and in good faith.

(5.) Mr. Rajgarhia, learned counsel appearing for the appellant vehemently contended, that the appellants being motivated to start a new business of their own, acquired the disputed premise at a high price. As to who provided the fund for it, whether they have share in the family business, whether they also participate in the management of the said family business are altogether irrelevant considerations, more particularly when the family business is owned by 4 brothers, father, mother and aunt. According to learned counsel the Courts below adopted a wrong legal approach and thus arrived at wrong legal finding even if the facts found are sacrosanct The plaintiffs are in need of the property, which cannot be by any standard said to be whimsical and capricious desire. It is not the requirement of law, according to the learned counsel, that the plaintiffs have to be unemployed and shelterless to establish bona fide need. The very fact that they have no other vacant premise suitable to start a business of their own is enough to obtain eviction on the ground of personal necessity.

(6.) Mr. Sharma, appearing on behalf of the respondents, strenuously urged that this Court should refrain from interfering in second appeal, the finding recorded by the Courts below on the question of personal necessity. He further contended that the law has to be interpreted in the background of social and economic condition. In the instant case appellants have some business to sustain them but the respondents have none except the present one to provide them livelihood. Courts should not shut its eyes to the spirit and intendment of Rent Restriction Act which was enacted to fetter the unfettered right of re-entry.

(7.) I will first take up the objection of the respondents questioning this Courts jurisdiction to interfere with the impugned judgments under Section 100, C. P. C. In the case of Hasmat Rai v. Raghunath Prasad (AIR 1981 SC 1711 [LQ/SC/1981/258] ), the Supreme Court, while considering the case of personal necessity, observed that the finding of fact arrived at, ignoring incontrovertible admitted position which would non-suit the plaintiff if upheld would be travesty of justice. This would be an impermissible approach to the facts of the case, even if the facts found by the Courts below are accepted as sacrosanct. In this case the landlord subsequent to the suit acquired possession of another premise, sufficient to satisfy his requirement. This was ignored by the Court below while decreeing the suit for eviction, by failing to bear in mind that requirement must continue throughout the progress of litigation and not merely on the date of initiation of proceeding. Similarly, Damadilals case reported in AIR 1976 SC 2229 [LQ/SC/1976/231] (Damadilal v. Parashram), the Supreme Court while considering the question of bona fide requirement, under M. P. Accommodation Control Act observed, that a finding of bona fide requirement if arrived by ignoring important and relevant evidence, the finding is bad in law.

(8.) In my considered opinion, if the Courts below apply wrong legal test to the facts found and/or adopt wrong Jegal approach to a case, and thus arrive at a finding, a case for interference under Section 100, C. P. C. is made out It has, therefore, to be seen whether in the instant case, the approach of the Courts below to non-suit the plaintiff was legal and valid. In other words, whether the Courts below applied wrong legal test to the admitted facts, while deciding the question of bona fide requirement, i. e., whether the Courts below misdirected themselves in law.

(9.) This takes me to the circumstances leading to the enactment of Rent Acts. In the words of Supreme Court, the law was enacted in all the States "to fetter the unfettered right of re-entry" which is the time honoured notion. (Hasmat Rai v. Raghunath Prasad, AIR 1981. SC 1711) (supra). It is a "piece of social legislation aiming at easing the problem of accommodation, protecting the tenants from eviction inspired by profit hunting motives and providing certain safeguards for the tenants and saving them from great expense, inconvenience and trouble. But the does not completely overlook the interest of the landlord and has under certain conditions granted a clean right to the landlord to seek eviction on proof of grounds "mentioned under different State Acts". All thes have tried to strike "a just balance between the genuine need of the landlord on one hand and great inconvenience and trouble of the tenant on the other" (Bega Begum v. Abdul Abad Khan, AIR 1979 SC 272 [LQ/SC/1978/295] ). In the words of Lord Greene, M. R., the Rent Restriction Acts are Acts for protection of tenants and not Acts for penalising the landlords. The approach to a case, therefore, should be that the "should not operate in such a way as to penalise landlords instead of being, what they truly are, merely Acts for the protection of tenants". (See 1942 (2) All ER 653, Cumming v. Danson). One of the enabling grounds for re-entry under the Bihar Build- ings (Lease, Rent and Eviction) Control Act, 1947, is the personal requirement of landlord, as engrafted under Section 11 (c) of the Act, which reads as follows :--

"Where the building is reasonably and in good faith required by the landlord for his own occupation or for the occupation of any person for whose benefit the building is held by the landlord."

(10.) Good faith has been defined under the Bihar and Orissa General Clauses Act, 1912. It reads as follows :--

"A thing shall be deemed to be done in "good faith" where it is in fact done honestly, whether it is done negligently or not."

The term "bona fide" has bee.n explained in the law Lexicon of British India by Mr. P. Ramanatha Aiyar as follows :--

"In good faith; without fraud or deception; honestly as distinguished from bad faith; openly; sincerely. That we say is done bona fide, which is done really, with a good faith, without any fraud or deceipt (Tomlins Law Dictionary)." The word "requirement" however, has not been denned. But this word has come for judicial interpretation from time to time by the Supreme Court as well as by the various High Courts. In the case of Bega Begum v. Abdul Ahad Khan (supra), it was held by the Supreme Court that the words "reasonable requirement" which undoubtedly postulate that there must be "art element of need as opposed to a mere desire or wish. The distinction between desire and need should doubtless be kept in mind but not so as to make even the genuine need as nothing but a desire. The connotation of the term "need" or "requirement" should not be artificially extended nor its language so unduly stretched or strained so as to make it impossible or extremely difficult for the landlord to get a decree for eviction. It does not require a hair splitting distinction between desire and need but the necessity must be genuine and reasonable". In AIR 1974 SC 1059 [LQ/SC/1974/25] (P. B. Desai v. C. M. Patel), while interpreting the word "requirement" in Section 13 (1) (g) of the Bombay Rents, Hotel and Lodging House Rates Control Act, the Supreme Court observed that the Court below misdirected itself in regard to the true meaning of the word "requirement" because the correct meaning of the said word will be an "element of need" before a landlord can be said to require premises. In that context it was held that while considering the question of reasonable and bona fide requirement "what is necessary to be considered is not whether the landlord is juridically in possession of other premises, but whether, they were available to him for occupation, so that he cannot be said to need the premises in question. If a person is in occupation of the other premises on leave and licence, they are obviously not available to the landlord for occupation and cannot be taken into account for negativing the, need of the landlord for the premises in question" In the case of Hasmat Rai (supra) while examining a case of personal requirement, the Court came across the admitted fact that there was one vacant premise came to be available with the landlord for its convenient occupation, and in that background the Supreme Court observed "this requirement must continue throughout the progress of litigation and must exist on the date of the decree". In AIR 1963 Raj 234 [LQ/RajHC/1963/77] (Govind Ram v. Abdul Wahab), while considering the need the Court held that the landlord cannot occupy his own property whenever it suits his sweet will or pleasure to do so, but at the same time, the landlord has not to prove and establish "absolute" or "dire" _ necessity, for the occupation of the property in dispute for his own or his family purposes and the need is "not to be motivated by any extraneous considerations of greed or any other similar factor". Similar was the view expressed in AIR 1967 J and K 141 (Punun Mal v. Durga Singh) where it was held "reasonable requirement would mean a rational requirement according to the dictates of reason and not excessive or immoderate". It should not be whimsical and capricious desire nor the landlord is to estabish a dire necessity in the sense that the plaintiff "landlord should be on the road side or absolutely shelterless" before he can be given possession of his own property from a tenant. In the case of M/s. Sant Ram Das v. Karam Chand reported in AIR 1963 Punj 1 (FB), it was held that the word "requirement" as used in Section 13 (3) (a) (i) (a) of the East Punjab Urban Rent Restriction Act (sic), while interpreting the word "requirement", observed "the needs in fact must exist and the extent of the need would depend upon the size of the family, the social status of the person concerned and social habits and style of living of the family".

"In (1979) 1 Ren CR 602 (605) (Ajit Singh v. Inder Sara.n), while dealing with the Delhi Rent Control Act, 1958, it was observed that the "need of a reasonable person in the position of the owner having regard to the totality of circumstances such as the extent of the family of the owner, the standard of living to which the family is used, his social status, the pattern of life relevant to that status, the social conditions and any peculiar requirement of the family. All these have to be considered in the wider context of the socio-economic conditions obtaining in the country and the Court is not required "to weigh the requirements in a fine scale", even while keeping the landlord confined within reasonable limits, having regard to all the relevant circumstances. It was also held that the expression "bona fide" implies an element of honesty or, to put it differently, the absence of any ulterior motivation. "The words, therefore, signify an honestly felt need of an owner and, therefore, incorporate a concept which is both objective as well as subjective". In AIR 1959 Cal 181 [LQ/CalHC/1958/26] (Krishna Das v. Bidhan Chandra) where the plaintiff after having a dwelling house in a noisy and disturbing locality could not get his much-needed rest in that house after the days strenuous work, he felt the necessity of removing himself from that residence and thus motivated purchased the disputed premises in defendants occupation as tenant, for his residence, in quiet locality and sought ejectment on the ground of reasonable requirement, a Division Bench of that Court held that "reasonable requirement is a relative term". What is reasonable requirement for A may not be so for B and, again, what may not be reasonable requirement for A may well be reasonable requirement for B. The status of the plaintiff, the nature of his work or avocation, the state of his health etc. are relevant considerations for judging his requirement and the reasonableness of it", jt was also held that the plaintiff has already deposited a good sum for the purchase of the property and, if he, otherwise reasonably requires a change of residence, insistence on the purchased property for that purpose would not affect the genuineness or the reasonableness of that requirement and the suit was decreed. In the case reported in AIR 1957 Cal 357 [LQ/CalHC/1956/164] (Carrara M. and T. Co, v. Charu Chandra), white considering the bona fide and reasonable requirement the Court held that the Sand-lord cannot go for a rented house when he has a house for himself. In AIR 1969 Guj 110 [LQ/GujHC/1967/152] (Kasturbhai and Bros. v. Firm Mohanlal), a Division Bench of that Court held that the word "requirement" could not be equated with a mere desire or claim. But it must be more than a mere desire or a claim or a demand but "which is surely less than a. compelling or absolute necessity". The need should be genuine, honest and reasonable in the circumstance of the case while considering Bombay Rents, Hotel and Lodging House Rates Control Act, similar was the view expressed in AIR 1976 Bom 70 [LQ/BomHC/1975/283] (Janba v. Rajeshkumar) where it was held "the law does not require landlord to establish absolute need or absolute requirement without which he shall have no shelter". In AIR 1953 Nag 271 (Nara-yanrao v. Mt. R. D. Swame), while considering the case of requirement in C. P. and Berar Letting of Houseg and Rent Control Order, a Division Bench of the said Court held that "it may be that he wants to extend his business to earn more money or even to free himself from the shackle of the Rent Control Order. Even 30, what he wants is within the law and as such he is, when he made the application, entitled to have the premises vacated". That was a case where the landlord wanied to occupy the premises for carrying on his business of a hotel-keeper and the Court found that he was actually carrying on that business and that he intended to extend his business and for that purpose he needed the premises in question. The Additional Deputy Commissioner has found as a fact that the petitioner does need the premises but curiously enough he had come to the conclusion that his need is not bona fide. It was in that context held that "if the landlord wanted to extend his business to earn more money the need would be a genuine need." In AIR 1952 Nag 313 (Ramnath v. Extra Assistant Commr.), a Division Bench of the said Court held "even the intention to start a business is a need". In AIR 1960 Madhya Pradesh 345 (Damodar v. Nand-ram) a Full Bench of the said Court held that a tenant is liable to be ejected from the shop in his occupation on the ground that his "landlord requires it for continuing or starting his own business unless it can be shown that any other non-residential accommodation in occupation of the landlord is suitable for the purpose of continuing or starting the landlords own business". If the landlords business has in fact grown and there is a felt need, to be determined objectively, for additional accommodation for the purpose of continuing the extended business, Ihe tenant is liable to be ejected. In (198!) 1 Ren CR 580 : (AIR 1982 NOC 50) (Delhi) (Ram Prakash v. Mohinder Singh) while considering the bona fide re- quirement under Section 14 (1) (e) of the Delhi Rent Control Act, 1958, it was observed that The landlord is entitled to make himself more comfortable in his own property and the tenant cannot dictate the terms, mode and space of living to the landlord. The only requirement of law appears to be that the need of the landlord must be bona fide and he must not have any oblique motive or unreasonable intention to obtain eviction of the tenant. The need of the landlord must have an element of necessity".

(11.) The law on the subject has been summarised by Lord. Greene M. R. in Cum-mings case (supra). while considering "rea sonable needs" under Section 3 (1) of Rent Restriction Act of England thus : "The duty of the Judge is to take into account ali relevant circumstances as they exist at the date of the hearing. That he must do in what 1 venture to call a broad, common sense way as a man of the world, and come to his conclusion giving such weight as he thinks rigsht to the various factors in the situation bearing in mind that the is meant for projection of tenants and not an act for penalising the landlord. In my opinion, while seeking eviction on the ground of personal necessity if the need be honest and genuine without being motivated by oblique and extraneous considerations, the Court should decide the question bearing in mind the concept incorporated in the section which is "both objective as well as subjective" and refrain from resorting to "hair splitting distinction between desire and need". The Court should further bear in mind that while asking for eviction the landlord is "not seeking an indulgence from the Court". The requirement must be rational according to the dictates of reason and the need must be honestiy felt.

(12.) Applying the legal test, aforesaid, I find that the Courts below have completely misdirected themselves in law in finding absence of bona fide requirement. The Courts below did not find that the plaintiffs really dont intend to start a new business of their own or expand their existing business and the eviction is sought, for the purpose of letting out the premises, at a higher rent. The Courts below also did not find that the plaintiffs possess any other suitable mid vacant premise, which can satisfy, the need canvassed before it. The only matter which weighed with the Courts below is ihat the plaintiffs have an ances- tral business in the management of which they also participate, therefore, the plaintiffs do not need to have a separate premise for starting their own business. In short, the approach of the Courts below is, one must be unemployed, before he can require a premise for starting a business and one must be absolutely shelterless before he can require a house for. residence. This approach is impermissible in law while adjudicating a case of bona fide requirement Can it be said the need to start a business of own is irrational, capricious and whimsical because, the person derives some benefit out of joint family business Further the Courts below based their judgment on irrelevant consideration, namely, the fund was provided to the plaintiff, by the joint family. How fund was raised to purchase the property cant have any rational basis for determination of the question posed before it. In my opinion, once the need is established by the plaintiffs, the Courts have no jurisdiction to probe further into the matter and try to weigh and balance it according to its social philosophy. The "need" is not justiciable thereafter. The only jurisdiction exercisable by Court in that situation is to find out whether the need could be fulfilled from the eviction of the entire premise or from a part of it. Here also the Court is required to see whether the two businesses can be carried on from the same premise and the premise can be shared for the purpose of two separate businesses smoothly, conveniently and profitably. I am, therefore, of the opinion that the legal conclusion and inference, drawn by the Courts below from sancrosanct fact, is completely vitiated in law. The only legal conclusion that flows from uncontroverted fact in the background of law discussed above, is a need of the plaintiffs to do business of their own.

(13.) In spite of my aforesaid conclusion this case has to go back to the Court of appeal below to find out whether the need of the plaintiffs could be fulfilled by partial eviction of the defendant, from the disputed premise. The Courts below have not at all applied their mind to this aspect, which is mandatory requirement 01 law.

(14.) In the result, the appeal is allowed and remanded back to the Court of Appeal below to dispose of the appeal in the light of the observations made above. As considerable time has akeady lapsed since the institution of the suit, the appeal should be disposed of within three months from the date of receipt of this order and records of the case from this Court There will, however, be no order for cost.