PANCHAL SHANKERLAL MATHURDAS Vs. RANCHHODLAL GOVINDLAL
LAWS(GJH)-1966-4-1
HIGH COURT OF GUJARAT
Decided on April 26,1966

PANCHAL SHANKERLAL MATHURDAS Appellant
VERSUS
RACHHODLAL GOVINDLAL Respondents

JUDGEMENT

B.J.DIVAN - (1.) The petitioner in this Civil revision application is the original defendant and the opponents are the original plaintiffs. Plaintiffs are the joint owners of a building situated at Ahmedabad and the defendant is their tenant on the ground-floor of that building. The plaintiffs are related as opponent No. 2 is the widow of the deceased brother of opponent No. 1 and hence are joint owners of this particular property. The two joint owners are residing on the upper floor of the house and the tenant is occupying the shop premises on the ground-floor. The tenant is a silversmith manufacturing storing and selling silver ornaments in this shop which is situated in the front portion of the suit house for about 14 years. On the first floor there are three rooms and a loft occupied by the landlords. The landlords filed a suit in the Court of Small Causes at Ahmedabad for evicting the tenant on the ground of reasonable and bona fide requirement of the landlords and also on the ground of arrears of rent and sub-letting At the hearing of the suit the grounds of sub-letting and arrears of rent were given up and the only ground which was pressed by the landlords was of reasonable and bona fide requirement for their own use and occupation. The learned trial Judge in the Small Causes Court Ahmedabad framed the necessary issues; he found that the plaintiffs reasonable and bona fide requirement of the suit premises for residence was established. As required by sec. 13(2) of the Bombay Rents Hotel and Lodging House Rates (Control) Act 1947 (hereinafter referred to as the Acts) the learned Judge also framed an issue about the balance of hardship and on that issue he held that a decree for partial possession should be passed in favour of the landlord. He directed that the front portion of the shop should be kept in the possession of the tenant and the rear portion of the shop should go to the landlords and he also directed that a wall partitioning the two portions should be erected by the plaintiffs within six months of the decree and the tenant was directed to give all facilities for constructing the said wall. The learned trial Judge also fixed the rent to be paid by the tenant after the wall was erected and the possession of the rear portion of the suit premises was handed over to the landlords.
(2.) Against this judgment and decree both the landlords and the tenant went in appeal and both the appeals were heard together by the learned Judge in the City Civil Court at Ahmedabad as after the setting up of the City Civil Court at Ahmedabad the appeals against the judgments of the Small Causes Court in connection with Rent Act matters were transferred to the City Civil Court. The learned Judge in the City Civil Court held that the plaintiffs had proved their reasonable and bona fide requirement for the suit premises and he further held that no case for interference in the decree passed by the lower Court was made out. He therefore dismissed both the appeals and directed each party to bear its own costs of the appeal. The present Civil Revision Application has been filed by the tenant against this judgment and decree of the learned Judge in the City Civil Court whereby he confirmed the judgment and decree of the trial Court.
(3.) It is well settled law that under the ordinary law of the land whenever a landlord sues his tenant for eviction the Court can only pass a decree for evicting the tenant fully from the premises rented to him or can refuse to pass decree for eviction but there cannot be a decree for partial eviction of a tenant under the ordinary law of the land. The reason behind this rule is obvious. When the relationship of landlord and tenant has been terminated either by efflux of time or by a notice to quit or in any manner contemplated by law the tenant is not entitled to continue in possession of any part of the premises rented to him and if no legal defence is open to him the Court is bound to hand over possession of the leased premises to the landlord in entirety and not partially. To this general principle of law an exception has been engrafted by sec. 13(2) of the Act. Sec. 13(2) provides that no decree for eviction shall be passed on the grounds specified in clause (g) of sub-sec. (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 because by passing the decree than by refusing to pass it and the second paragraph j of that sub-section says that where the Court is satisfied that no hardship I 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. Thus a decree for partial eviction can be passed under second paragraph of sec. 13(2) of the Act. Since this paragraph engrafts an exception to the general rule of law it must be construed strictly and before a Court can pass a decree for partial eviction the conditions laid down in that paragraph must be satisfied. Before any decree for partial eviction can be passed the Court must satisfy itself that by passing such a decree no hardship is going to be caused either to the landlord or to the tenant. Unless that satisfaction is reached by the Court the decree for partial possession cannot be passed. In the instant case both the Courts below have come to the conclusion that the landlords have established their case of reasonable and bona fide requirement of the suit premises at least so far as plaintiff No. 1 is concerned. Plaintiff No. 2 had not stepped into the witness box and the learned trial Judge held that as the plaintiff No. 2 had not stepped into the witness box it cannot be said that she had established her reasonable and bona fide requirement. The learned Judge in the City Civil Court deferred from this view but he also held that the reasonable and bona fide requirement of the plaintiffs had been established on the facts and circumstances of the case. The learned Judge in the trial Court on the consideration of the facts before him came to the conclusion on the issue of hardship as follows; I do not consider the question of hardship as defendant is not ordered to vacate the entire suit premises. He is a silver-smith and his requirements will be met by front portion of the shop measuring 10-8 in length and 9-5 in breadth. With respect to the learned trial Judge this was an erroneous approach. It was obligatory on him to consider in view of the issue that he had framed whether greater hardship was going to be caused by passing the decree for eviction than by refusing to pass it and unless he came to a specific conclusion on that issue he could not have passed any decree for eviction As regards the decree for partial eviction which he actually passed nowhere has the learned trial Judge recorded his finding that by the arrangement which he was proposing viz. awarding possession of the rear portion of the suit premises to the landlords no hardship was going to be caused either to the landlord or to the tenant.;


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