Holding

Section 13(2) of the Bombay Rents Act is a proviso that overrides Section 13(1)(g); when a ground for eviction is established, eviction may be denied if the tenant proves greater hardship, and the court may order partial eviction.

Summary

The landlord (B.C. Bhutada) let the first floor of a building for residential use and part of the ground floor for non‑residential use to the tenant (G.R. Mundada), who also used a portion as a godown. The landlord sought eviction under the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 on the ground of reasonable and bona‑fide requirement for both the residential and non‑residential portions. The trial court rejected the petition; the appellate court allowed eviction of the residential part but denied eviction of the non‑residential part, finding greater hardship to the tenant. The High Court upheld that order. On appeal, the Supreme Court held that Section 13(2) of the Act is a proviso that overrides Section 13(1)(g) and that, even when a ground for eviction is proved, the court may deny eviction if the tenant proves greater hardship; the burden of proving comparative hardship lies on the tenant, and the court may order partial eviction where appropriate. Consequently, the Supreme Court set aside the denial of eviction of the non‑residential portion and remitted the matter to the appellate court to determine comparative hardship and the possibility of partial eviction.

Issues considered

Whether the tenant proves greater comparative hardship than the landlord in respect of the non‑residential portion, warranting denial of eviction.
Whether the burden of proving comparative hardship lies on the tenant under Section 13(2).
Whether a partial eviction can be ordered and, if so, to what extent.

Legislation cited

Bombay Rents, Hotel and Lodging House Rates Control Act, 1947s. 13(1)(g), s. 13(2)
Indian Evidence Act, 1872s. 101

Subjects

evictioncomparative hardshipBombay Rents Actlandlord‑tenantpartial evictionSection 13(2)bona fide requirementburden of proofrent control

Judgment

BADRINARAYAN CHUNILAL BHUTADA A
v.
GOVINDRAM RAMGOPAL MUNDADA

JANUARY 15, 2003

[R.C. LAHOTI AND BRIJESH KUMAR, JJ.) B

Rent Control and Eviction:

Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947-
Ss. l 3(/)(g) and 13(.2)-Eviction-Denial of eviction on the ground of C
comparative hardship even when ground of eviction made out-Propriety of-
Held, eviction can be denied if comparative hardship is proved against the
landlord even when ground of eviction is made out-Section 13(l)(g) has
overriding effect on 13(2)-Burden to prove availability of ground is on
landlord while to prove comparative hardship is on the tenant-Evidence Act, D
1872--Section 101.

Appellant-landlord let out first floor of a building to the respondent-
tenant for residential purpose and one portion of the ground floor for non-
residential purpose. In the premises of ground floor, the tenant was
running a shop and using one portion as godown for storing waste E
material.

Landlord filed petition for eviction of the tenancy premises on the
ground of bonafide requirement for occupation by himself and his family
in the residential portion and for business of his two sons in the non- F
residential portion and on other grounds. Trial Court rejected the petition
on all the grounds. Appellate court held that t.he bona fide requirement of
the landlord was made out for the premises, residential as well as non-
residential. Court allowed the eviction in respect of residential portion
holding that comparative hardship would be greater to the landlord.
However, it denied eviction in respect of non-residential portion holding G
that comparative hardship would be greater to the tenant. In the writ
petitions filed by both landlord and tenant, High Court refused to interfere
with the order of Appellate Court. It held that landlord failed to prove
comparative hardship with regard to non-residential portion.
H
329
330 SUPREME COURT REPORTS [2003] I S.C.R.

.A In appeal to this Court landlord contended that eviction order should
have been passed even in respect of the non-residential portion; that the
burden to prove comparative hardship which lay on the tenant had been
wrongly cast on the landlord; and that High Court failed to examine
whether partial eviction from the premises could have been ordered ..

·B Partly allowing the appeal, the Court
. · ..
HELD: 1.1. In spite of a ground for eviction u/s 13(l)(g) of Bombay
Rents, Hotel and Lodging House Rates (Control) Act, 1947 hav-ing been
made out, the Court may deny the relief of eviction if tlie issue as to
C comparative hardship is answered against the landlord and in favour of
the tenant. Thus in a way, Section 13(2) acts as a proviso to Section
13(1)(g); the former having an overriding effect on the latter. The burden
of proving availability of ground for eviction under Section 13(l)(g) lies
ori the landlord; the burden of proving greater hardship so as to deprive
the landlord of his established right to seek eviction lies on the tenant.
D [335-E, F)

1.2. Section 13(2) falls more appropriately within the domain of
equitable or social justice. Section 13(2) obliges the Court, in spite of the
finding as to reasonable and genuine requirement having beeri arrived at
in favour of the landlord, to weigh in scales placing the hardship which +
·E would result to the landlord .in case of denial of eviction in one balance
pan and the hardship likely to be suffered by the tenant in case of his being
evicted in the other and then find out judiciously which way the balance
tifts. An empty truism cannot be hardship. A failure of the landlord to
make out a case for eviction under Section 13(1)(g) is not a hardship to
landlord; so also on a case for eviction under Section 13(l)(g) having been
F made out the fact that the tenant will be liable to be evicted is not by itself
hardship to tenant. A mere wish or desire of the lantllord to acquire
possession over the tenancy premises cannot be said to be a bona fide and
reasonable requirement. Requirement implies an element of necessity. The
necessity is a necessity without regard to the degree of which it may be.
G For the purpose of Section 13(2) the degree of urgency or the intensity of
felt-need assumes significance. It is a judicious process of finding out, as
far as practi~able, and then making a comparative measure of the two
degrees, which is involved in arriving at a finding on comparative
hardship. [335-G-H; 336-A-C)

H 1.3. The family, the business background of the parties, the
B.C. BHUTADA v. G.R. MUNDADA 331
availability of accommodation with either parties or in the township, the A
extent of direness or pressing nature of the need for eviction as against
the direness of need or urge of the tenant to continue to occupy or cling
to the tenancy premises, with reasons therefor, assume relevance. The
Court may keep in view how the things would take shape in a reasonably
foreseeable future in either event The conduct of the parties, their mutual B
relationship may also be relevant. In spite of the availability of ground
for eviction being legally sustainable, for the purpose of deciding the issue
as to comparative hardship, the Court may take into consideration
availability of such other premises with the landlord, which though not
necessarily alternative to the suit premises, may still be available to
accommodate the proven requirement of the landlord. (336-C-E] C
1.4. If the Court is satisfied that the ends of justice would be met if
the tenant is not called upon to vacate the entire tenancy premises but
only a part of it, then the Court may order partial eviction so that the
requirement of the landlord is satisfied and the tenant is also not deprived
of his running business activity. It is expected of the parties to raise D
necessary pleadings, and the Court to frame an issue based on the
pleadings so as to enable parties to adduce evidence and bring on record ·
such relevant material as would enable the Court forming an opinion on
the issue as to comparative hardship and consistently with such finding
whether a partial eviction would meet the ends of justice. Even if no issue E
has been framed, the Court may discharge its duty by taking into
consideration such material as may be available on record.
(336-H; 337-A-C]

2. In view of the case for eviction u/s 13(1)(g) having been made out.
by the landlord, if the tenant would have been directed to be evicted at F
-":
least from the portions shown as 'godown' and 'waste material' in the
plan which portion of the premises has not been in use of business of the
tenant, the tenant would not have suffered any prejudice or hardship or
at least not much thereof. (339-A, BJ

Mst. Bega Begum and Ors. v. Abdul Ahad Khan (dead) by Lrs., and Ors., G
(1979( I sec 273 referred to.

Piper v. Harvey (1958) I All. E.R. 454, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 321 of
1999. H
332. SUPREME COURT REPORTS [2003] I S.C.R.

A From the Judgment and Order dated 7. 7.1999 of the· Bombay High -iii
Court in W.P. No. 1672 of 1990.

S.V. Deshpande, for the Appellant.

M.S. Nargolkar and Deepak and M. Nargolkar, for the Respondent.
B
The Judgment of the Court was delivered by

R.C. LAHOTI, J. A decree for eviction in a landlord-tenant litigation
upholdillg availability of ground for eviction u/s 13(l)(g) of the Bombay
Rents Hotel and Lodging House Rates (Control) Act, 1947 {hereinafter 'the
C Act' for short) but denying the relief of eviction based on the finding on issue
as to comparative hardship within the meaning of Section 13(2) of the Act
is under challenge in this appeal by special leave filed by the appellant- )>...
landlord.

The suit premises are situated in the city of Pune and are described in
D city survey as No. 573, Ravivarpet. The premises are the part of a building
having two wings and three floors, i.e. the ground floor and two upper floors.
The eastern wing is in the occupation of the landlord-appellant. The ground
floor is used as a shop. The first and the second floor are used as residence
for the appellant and this family. The western wing is in the occupation of
E the tenant-respondent who runs a shop on the ground floor and resides with
his family in the upper two floors. The appellant's family consists of the
appellant and his wife and four married sons, i.e. five couples who live as
joint family. They have nine grand children, as stated at the Bar during the
course of hearing. The suit property was purchased by the appellant in the
year 1973. In the year 1982 the landlord initiated proceedings in the court
F of Small Causes. Pune for recovery of possession over the premises as also
for recovery of arrears of rent and education cess. The grounds on which the
eviction was sought for were (i) default in payment of arrears, (ii) misuse of
the tenancy premises, and (iii) reasonable and bona fide requirement .of the
premises by the landlord for occupation by himself and his family members
G as residence in the upper floors and for the business of two sons of the
appellant on the ground floor. The Trial Court held against the appellant on
all the three ground for eviction. In an appeal preferred by the laridlord the
Appellate Court too held against the appellant, upholding the findings of the
Trial Court, so far as the grounds of default in payment of arrears and misuse
of the tenancy premises in concerned and on .both the grounds confirmed the
H findings of trial court. On the ground of requirement, the Appellate Court
B.C. BHUTADA v. G.R. MUNDADA [R.C. LAHOTI, l.] 333

held that, so far as the upper two floors are concerned, .reasonable and bona A
fide requirement of the landlord for occupation by himself and his family
members is made out and that the appellant would suffer great hardship if the
eviction is denied than the hardship which the tenant would suffer in the
event of eviction being ordered. So far as the ground floor of the tenancy
premises is concerned, the Appellate Court held that the reasonable and bona B
fide requirement of the landlord for running the business of his two sons in
the tenancy premises is made out but then the tenant would suffer greater
)I' hardship if evicted from the ground floor compared with the hardship which
the landlord would suffer in the event of the eviction being denied. On these
findings, the Appellate Court directed a decree for eviction being passed
from the residential portion of the tenance premises, i.e. the first and second C
floors but denied the eviction so far as the non-residential part of the tenancy
premises, i.e. the ground floor is concerned.

Feeling aggrieved by the decree of the Appellate Court, both the parties·
filed writ petitions in the High Court. The High Court has dismissed both the
writ petitions and refused to interfere with the decree of the Appellate Court. D
So far as the decree for eviction from the residential part of the premises is
concerned, the same has achieved finality in view of the tenant-respondent
having not appealed there against. The landlord has persisted in his claim for
eviction from non-residential part of the tenancy premises. This appeal by
special leave is, therefore, confined to the issue whether the decree for eviction E
should have been passed against the tenant-respondent from the non-residential
part of the tenancy premises, i.e. the ground floor also.

Clause (g) of sub-section (I) of Section 13 and sub-section (2) of
Section 13 which are relevant for the purpose of this appeal are extracted and
reproduced hereunder :- F
,.
13. When landlord may recover possession. (I) Notwithstanding
anything contained in this Act but subject to the provisions of sections
15 and 15A, a landlord shall be entitled to recover possession of any
premises if the Court is satisfied- G
xxx xxx xxx

(g) that the premises are reasonably and bona fide required by the
landlord for occupation by himself or by any person for whose
benefit, the premises are held (or where the landlord is a trustee H
334 SUPREME COURT REPORTS [2003] 1 S.C.R.

A of a public charitable trust that the premises are required for
occupation for the purposes of the trust;

xxx xxx xxx

(2) No decree for eviction shall be passed on the ground specified in
B clause (g) of sub-section (l) 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 passing the decree -I.
than by refusing to ·pass it.

C Where the Court ·is satisfied that no hardship would be caused
either to the tenant or to the landlord by passJng the decree in respect
of a part of the premises, the Court shall pass the decree in respect
of such part only.

xxx xxx xxx
D
The finding of fact arrived at by the Appellate Court and sustained by
the High Court is that the landlord and the tenant are both engaged in cloth
business, which is being run by the two in the respective ground floors of tbe ,,
eastern and western wings of the building. On the sons of the landlord having
E come up in age, they have started the business of dealing in electronic goods.
As there was ~o other independent accommodation available for the business
of electronic goods, the same had to be commenced and accommodated in
the shop in which the cloth business was being already carried on by the
landlord. Thus the two l:msinesses, both flourishing as the evidence reve.als,
have been squeezed into space of one shop. On the date of the instiiution of
F .the suit, .the. landlord-appellant an.d his seconq .son were Joo king after ·the
. cloth business while the electronic goods business was being looked after by
the eldest and the third son of the appellant. Although the two businesses are
·. being· run in .the same premises, the landlord and his sons felt suffocated on·
!Ccount of inadequate space for both the busiriesses. A pre-existing partition
on the ground floor had to be removed and the entire ground floor in the
G occupation of the landlord is beint! made. use of for commercial activity and
yet the SP!\Ce is insufficient. In. the electronic good shop, TV sets, refrigerators,
washing machines and other such items are required to be kept and.displayed
as in a showroom and for that purpose the available space is not enough. On
these facts, the finding as to genuine requirement was arrived at by the
H Appellate Court and upheld by the High Court arid rightly so in our opinion.
B.C. BHUTADA v. G.R. MUNDADA [R.C. LAHOTI, J.) 335

The only question which now survives for decision is the exercise of discretion A
under sub-section (2) of Section 13 of the Act.

A perusal of the judgment of the Appellate Court shows that the tenant
has been running his cloth shop in the suit premises since the times of his
father and is the only earning source of the tenant-respondent. The shop is
situated in a locality where mostly cloth shops are situated. The shop also B
carries some goodwill. On the contrary, the turnover of the cloth business, so
far as the landlord is concerned, is stated to be around I 0-12 lakhs rupees per
year. The turnover of the electronics business is stated to be around 7-8 lakhs
rupees per year. The tenant's evidence shows that he is having a lesser
turnover and lesser business. The High Court opined that if the tenant was to C
be vacated from his shop, he would be required to pay a huge premium of
Rs. 4-5 lakhs for availing other suitable business premises in the Kapadgunj
locality where the suit shop is situated. On the abovesaid facts and opinion,
the question of comparative hardship has been answered by the Appellate
Court in favour of the tenant-respondent. The same reasoning has found
favour with the High Court a.lso. D
A perusal of the scheme of the Act, so far as the ground of reasonable
and bona fide requirement by the landlord for occupation of residential or
non-residential premises is concerned, shows that clause (g) of sub-section
(I) of Section 13 contemplates a decree for eviction being passed on proof E
of availability of the ground according to law. In spite of a ground for
eviction u/s 13(l)(g) having been made out, the Court may deny tlfe reliefof
eviction ifthe issue as to comparative hardship is answered against the landlord
and in favour of the tenant. Thus in a way, Section 13(2) acts as a proviso
to Section 13(1)(g) the former having an overriding effect on the latter. The
burden of proving availability of ground for eviction under Section 13(1)(C) F
lies on the landlord; the burden of proving greater hardship so as to deprive
the landlord of his established r.ight to seek eviction lies on the tenant.

Sub-section (2) of Section 13 falls more appropriately within the domain
of equitable or social justice. Section 13(2) obliges the Court, in spite of the G
finding as to reasonable and genuine requirement having been arrived at in
favour of the landlord, to weigh in scales placing the hardship which would
result to the landlord in case of denial of eviction in one balance pan and the
hardship likely to be suffered by the tenant in case of his being evicted in the
other and then find out judiciously which way the balance tilts. An empty
truism cannot be hardship. A failure of the landlord to make out a case for H
336 SUPREME COURT REPORTS [2003] I S.C.R.

A eviction under Section 13(l)(g) is not a hardship to landlord; so also on a
case for eviction under Section 13( I )(g) having been made out the fact that
the tenant will be liable to be evicted is not by itself hardship to tenant A -j.,
mere wish or desire of the landlord to acquire possession over the tenancy
premises cannot be said to be bona fide and reasonable requirement.
Requirement implies an .element of necessity. The necessity is a rtecessity
B withoutregard to the degree of which .fr may be. For the purpose of Section
13(2) the degree of urgency or the intensity of felt-need assumes significance.
It is a judicious process of finding out, as far as practicable, and then making -y(
a comparative measure of the two degrees, which is involved in prriving at
a finding on comparative hardship.
c The family, the business background of the parties, the availability of
accommodation with either parties or in the township, the extent of direness
or pressing nature of the need for eviction as against the dieness of need or
urge of the tenant to continue to occupy or cling to the tenance premises, ,...
with reasons therefor, assume relevance. The Court may keep in view how
D ...
the things would take shape in a reasonably forseeable future in either event.
The conduct '.Jf the parties, their mutual relationship may also be relevant. In
spite of the availability of ground for eviction being legally sustainable, for
the purpose of deciding the issue as to comparative hardship, the Court may
take into consideration availability of such other premises with the landlord,
E which though not necessarily alternative to the suit premises, may still be ~
available to accommodate the proven requirement of the landlord. The fact
that the 'tenant could have had shifted to other premises or has missed the
opportunity of availing occupation of their premises .or is likely to part with
possession over other premises whereto his business can be or could have
been shifted are all.relevant factors for the purpose of Section 13(2) though
F may not be relevant for the. purpose of Section 13( l )(g). These are illustrative
factor,· incapable of being listed fully and precisely, which enter into the
thinking process leading to formulation of opinion on comparative hardship. ;.,...

The provisions of the Act do not bar a partial eviction being ordered-
rather contemplate a partial eviction specifically-which would of course depend
G
on answer to the question-whether it would be enough to :(iislodge the
tenant from only a part of the premises in his possession, and to what extent,
to satisfy the proved requirement of the landlord associated with consideration
of comparative hardship? If the Court is satisfied that:the ends of justice ' ,...._
would be met if the tenant is not called upon to vacate the entire tenancy
H premises but only a part of it, then the Court may order partial eviction so
B.C. BHUTADA v. G.R,. MUNDADA (R.C. LAHOTI, J.) 337
that the requirement of the landlord is satisfied and the tenant is also not A
deprived of his running business activity. Inasmuch as Section 13(2) entails
the consequence of the landlord being denied decree of eviction, wholly or
partly in spite of his having proved reasonable and bona fide requirement
within the meaning of Section 13( I )(g), the burden of proving availability of
grounds u/s 13(2) of the Act is on the tenant. It is expected of the parties to B
raise necessary pleadings, and the Court to frame an issue based on the
pleadings so as to enable parties to adduce evidence and bring on record such
Jlr relevant material as would enable the Court forming an opinion on the issue
as to comparative hardship and consistently with such finding whether a
partial eviction could meet the ends of justice. Even if no issue has been
framed, the Court may discharge its duty by taking into consideration such C
material as may be available on record.

The Act 11loes not lay down any guidelines or relevant factors based
whereon the question of comparative hardship is to be decided. A slight
indication is given in the first para of Section 13(2) that regard must be had
to (i) all the circumstances of the case, (ii) including the question whether D
other reasonable accommodation is available for the landlord or the tenant.
The expression 'other reasonable accommodation' as employed here does not
mean an accommodation suitable in all respects as the suit accommodation
is. The Legislalture has chosen it appropriate to leave the determination of
issue on sound discretion of the Court.
E
In Mst. Bega Begum and Ors. v. Abdul Ahad Khan (dead) by Lrs. Ors.,
[1979] I SCC 273 pari materia provision contained in J & K Rent Act came
up for the consideration of this Court. It was observed that it is no doubt true
that the tenant will have to be ousted from the house if a decree for eviction
is passed but such an event would happen whenever a decree for eviction is F
passed and merely because the tenant will be ousted from the premises where
he was running his activity cannot, by itself, be considered to be a hardship
and be a valid ground for refusing the landlord a decree for eviction. In
deciding the extent of the hardship, each party has to prove its relative
advantages or disadvantages and the entire onus cannot be thrown on plaintiffs
to prove that lesser disadvantages will be suffered by the defendants and that G
they were remediable. The owner of the property cannot be denied eviction
and compelled to live poorly merely to enable the tenants to carry on their
flourishing business activity at the cost of the landlord. The fact that there is
no other means for the landlord to augment his income except by getting the
tenancy premises vacated compared against the conduct of the tenant who H
338 SUPREME COURT REPORTS [2003] 1 S.C.R.

A having obtained the premises for a fixed number of years has overstayed and
enjoyed the premises for a long period of time are relevant factors not to
deprive the landlord from the possession over the tenancy premises ai'td .
recording a finding of no equity in favour of the tenants continuing in
possession any further. If the tenants prove that they will not be able to get
any accommodation anywhere in the city that may be a rel~vant consideration.
·B However, the tenant cannot insist on getting an alternative accommodation of
a similar nature in the same locality because that will be asking for the
impossible. What are to be weighed as relevant factors are the comparative
inconvenience, loss, trouble and prejudice.

C In Piper v. Harvery, (1958) I All.E.R. 454, the issue as to comparative
hardship arose for the consideration of Court of Appeals _under the Rent Act,
1957. Lord Denning opined: "When I look at all the evidence in this case and
see the strong case of hardship which the landlord put forward, and when I
see that the tenant did. not give any evidence of any attempts made by him
to find other accommodation, to look for another house, either to buy or to
D rent, it seems to me that there is only one reasonable conclusion to be arrived
at, and this is that the tenant did not prove (and the burden is on him to
prove) the case of greater hardship." _Hudson, L.J., opined: "The tenant has
not been able to say anything more than the minimum which every tenant can
say; namely, that he has in fact been in occupation of the bungalow, and that
E he has not at the moment any other place to go to. He has not, however,
sought to prove anything additional to that by. way of hardship, such as
unsucessful attempts to find other accommodation, or, indeed, 'to raise the
question of his relative financial incompetence as c_ompared with the landlord."
On such state of the case, the Court answered the issue as to comparative
hardship against the tenant and ordered his eviction.
F 1'
The learned counsel for the appellant submitted that the statutory
obligation case on the Court to weigh and assess the comparative hardship
has not been properly discharged and that has caused prejudiced to the
appellant. It was pointed out that the burden which lay on the tenant has beeh
wrongly cast on the appellant as the High Court has expres~ed during the
G course of its judgment that the appellant has adduced no evidence to show
that shops were available in the locality where the tenant could shift on
vacating the suit premises. It was also pointed out that the Appellate Court
and the High Court have completely failed to examine whether at least a
partial eviction from the tenancy premises could have been ordered. It has
H come in the evidence that some portions of the ground floor are being used
B.C. BHUTADA v. G.R. MUNDADA (R.C. LAHOTI, J.] 339
by the respondent as godown and for storing waste material, the area whereof A
is approximately 300 sq. feet as per the site plan available on record. In view
of the case for eviction u/s 13(1 )(g) having been made out by the landlord,
ifthe tenant would have been directed to be evicted at least from the portions
shown as 'godown' and 'waste material' in the plan which portion of the
premises has not been in use of business of the tenant, the tenant would not B
have suffered any prejudice or hardship or at least not much thereof. We find
merit in the submission so made.

In the peculiar facts and circumstances of this case, we are inclined to
have a specific finding being arrived at by the Appellate Court to meet the
~~~~- c
The appeal is partly allowed. The judgment and decree of the Appellate
Court and upheld by the High Court, to the extent to which eviction from the
non-residential premises (i.e. ground floor) has been denied to the appellant,
is set aside. The case is sent back to the Appellate Court. The Appellate Court
shall frame the following issues :- D
(i) Whether the defendant-tenant would suffer greater hardship in
the event of being evicted than the hardship which the plaintiff-
landlord would suffer in the event of eviction being denied?
(ii) Whether in the facts and circumstances of the case, a partial
eviction would meet the ends of justice and, if so, to what extent? E
The Appellate Court may record the findings on the abovesaid issues
on the material already available on record and after hearing the parties. If
the Appellate Court feels that the material already available on record is not
enough to arrive at findings on the abovesaid issues, the parties may be
afforded an opportunity of adducing additional evidence. Jn the latter case, · F
the parties shall adduce evidence in a time bound programme. The proceedings
shall be completed as expeditiously as possible and in any case within a
period of four months from the date of communication of this order.

No order as to the costs of this appeal. G
K.K.T. Appeal allowed.