GUNA WATI Vs. RUGH NATH RAYU
LAWS(J&K)-1982-5-6
HIGH COURT OF JAMMU AND KASHMIR
Decided on May 10,1982

Guna Wati Appellant
VERSUS
Rugh Nath Rayu Respondents

JUDGEMENT

- (1.) THIS case involves the determination of the scope of the proviso to the explanation to sub -Section (h) of Section 11 (1) of the Houses and Shops Rent Control Act. 1966 (shortly the Act). The events leading up to this point may be shortly stated: The appellant brought a suit for the eviction of the respondent from a shop situated in Srinagar city. Her contention was that she wanted to convert the shop into a room in order to supplement her residential accommodation which was inadequate. The trial court found that the requirement pressed by the appellant was not reasonable. The first appellate court affirmed the finding. The matter came up in second appeal to this court. One of the contentions raised before the learned Single Judge hearing the second appeal was that the proviso to Explanation to Section 11 (1) (h) of the Act made it obligatory on the court to consider whether partial eviction of the tenant could satisfy the requirement of the landlord and since this was not done, the finding of the courts below, although it was concurrent, was vitiated. The argument was sought to be supported by the judgment of the Supreme Court in the case of Rehman Joo Wangoo Versus Ram Chand and ors (AIR 1978 S. C. 412). The learned Single Judge repelled the plea on two grounds: firstly that no specific plea in this regard had been raised in the plaint and no issue had been framed nor any evidence lead by the parties on the question of partial eviction. Secondly, that even if it were assumed that the absence of the specific plea would not stand in the way of the landlord, it was not necessary to go into that question because any submit determining would be an idle exercise so long as it has not found that the landlord did not reasonably require the property for his own occupation. The learned Single Judge observed that the judgment of the Supreme Court was distinguishable in as much as in that case it was found by the courts below that the landlord required the property for his own occupation and it was in this context that their Lordships of the Supreme Court expressed the opinion that the courts below ought to have gone into further question whether partial eviction of the tenant would satisfy the requirements of the landlord. The stand taken by the learned Single Judge did not satisfy the appellant who asked for leave to appeal under the letters patent in order to enable her to seek adjudication on the true scope of the proviso to the explanation to sub -Section (h) of section 11 (1) of the Act. The learned Single Judge was pleased to grant the leave and that is how the matter has come up before us. The explanation and the previso appended thereto appearing under sub -cl. (h) of Section 11 (1) of the Act, reads as under : "(h) Where the house or shop is reasonably required by the landlord either for purposes of building or re -building, or for his own occupation or for the occupation of any person for whose benefit the house or shop is held: Provided that all sub -tenants in the house or shop are made parties to the suit and allowed opportunity of contesting claim to decree for ejectment. Explanation: The court in determining the reasonableness of requirement for purposes building or rebuilding shall have regard to the comparative public benefit or disadvantage by extending or diminishing accommodation, and in determining reasonableness of requirement for occupation shall have regard to the comparative advantage or disadvantage of the landlord or the person for whose benefit the house or shop is held and of the tenant: Provided where the court thinks that the reasonable requirement of such occupation may be substantially satisfied by evicting the tenant from a part only of the house or shop and allowing the tenant to continue occupation of the rest, and the tenant agrees to such occupation, the court shall pass a decree accordingly and fix a proportionately fair rent for the portion in occupation of the tenant, which portion shall henceforth constitute the house or shop within clause (3) or clause (5) of Section 2 and the rent fixed shall be deemed to be the fair rent fixed under Section 8."
(2.) A bare reading of these provisions would make it clear that in ordering eviction on the basis of the personal requirement of the landlord, the court ought to consider two things; firstly, whether the landlord requires the property reasonably for his own occupation. Secondly, that if the requirement for such occupation is reasonable, then, whether it can be substantially satisfied by ordering the partial eviction of the tenant. Thus the question of partial eviction would arise only if the court comes to the conclusion that the requirement for personal occupation pleaded by the landlord is reasonable. In the present case, the subordinate courts concurrently found that the requirement of the landlord was not reasonable and the learned Single Judge did not find any fault with this finding. Consequently, it could not be reasonably pleaded that the lower courts had committed an error of law in not going into the question of partial eviction. However, we should not be understood as laying down that a specific plea with regard to partial eviction is necessary to be raised in the plaint. In our opinion it would be necessary for the court to go into that question even in the absence of such plea provided, of course the main question whether the property is reasonably required by the landlord for his own occupation is replied by the court in the affirmative. This is really the sense of the judgment of the Supreme Court in the case of Rehman Joo Mangoo (supra). In that case the plaintiff had not raised any specific plea about the partial eviction in the plaint, but the Supreme Court still remanded the case for investigation of that question only because it found that the courts below had come to the conclusion that the requirement for personal occupation pleaded by the landlord was reasonable. In this view, the argument to the contrary of the learned counsel for the appellant, has no merit in it and is hereby repelled.
(3.) LEARNED counsel next contended that the first appellate court had relied upon the report of the Commissioner which did not, constitute evidence in the eye of law. This point does not, however, arise from the leave granted by the learned Single Judge. We, therefore, refrain from going into this point. The result, therefore is that this appeal fails. It is dismissed accordingly. We, however, leave the parties to bear their own costs.;


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