S. C. AGRAWAL, J. - (1.) THIS second appeal by the tenant, Riyaz Mohammad, arises out of a suit for eviction filed by the respondent, Rameshwar, in respect of a shop situate at Mantharon-Ka-Rasta at Jaipur. The respondent has sought eviction of the appellant on the ground of bonafide and reasonable personal necessity to carry on Kirana business. The said suit was dismissed by the Addl. Munsiff & Judicial Magistrate, First Class No. 4, Jaipur City, Jaipur, by his judgment and decree dated 24th February, 1981, on the view that the respondent had failed to establish reasonable and bonafide personal necessity for the premises. The said judgment and decree of the Addl. Munsiff was reversed in appeal, by the Addl. District & Sessions Judge, No. 6, Jaipur City, who, by his judgment dated 30th September, 1982, passed a decree for eviction against the appellant and in favour of the respondent.
(2.) ONE of the questions which has been raised by the appellant in this appeal is whether it was necessary for the courts below to give findings with regard to section 14 (2) of the Raj. Premises (Control of Rent & Eviction) Act, 1950 (hereinafter referred to as 'the Act') and to give a finding whether reasonable necessity could be satisfied by partial eviction. Shri R. M. Lodha, the learned counsel for the appellant has placed reliance on the decision of the Supreme Court in Rahaman Jeo Wangnoo Vs. Ram Chand (1 ). In support of his submission that it was incumbent upon the courts below to consider the question as to whether the reasonable necessity of the plaintiff could be satisfied by partial eviction. Shri Lodha has also placed reliance on the decisions of this Court in Bhawani Singh Vs. Achal Singh (2) and Sima Sandesh Vs. Gian Kaur (3 ). Shri A. K. Bhandari, the learned counsel for the respondent has, however, urged that the question of partial eviction was not raised by the appellant in the written statement and since no issue has been framed in that regard and no evidence has been adduced on the same it cannot be permitted to be raised for the first time in second appeal. Shri Bhandari has also urged that principle of partial eviction can have no application in the present case where the premises consists only a shop. In Rahaman Vs. Ramchand (supra) the Supreme Court was considering the proviso to the explanation to Section 11 (1) (h) of the J. and K. Houses and Shops Rent Control Act, 1966 which made provision with regard to partial eviction. The Supreme Court has observed as under: - "the trial court and the first appellate court have really not considered this question on the merits; indeed evidence itself has not been taken on the score that there has been no specific plea in that behalf. We are satisfied that the proviso aforesaid mandates the court to consider whether partial eviction as contemplated therein should be ordered or the entire holding should be directed to be evicted. This aspect, therefore, required judicial explanation after giving opportunity to both sides to lead evidence in this behalf. " The aforesaid observations indicate that even though no special plea in that behalf had been raised and no evidence had been adduced in that regard, the Supreme Court held that because the proviso mandates the court to consider whether partial eviction as contemplated therein should be ordered or the entire holding should be directed to be evicted and that aspect required judicial explanation after giving opportunity to both sides to land evidence in that behalf. The aforesaid observations of the Supreme Court have been followed by this Court in Bhawani Singh Vs. Achal Singh (supra) wherein also no plea with regard to partial eviction was taken in the written statement and the point was raised for the first time in second appeal. This Court, after setting aside the decree of the courts below, remanded the matter to the appellate court, for consideration of the said question. Similarly in Seema Sandesh Vs. Smt. Gian Kaur (supra) no plea with regard to partial eviction was taken in the written statement by the tenant and the point was raised in the second appeal but this Court permitted the said point to be raised and after setting the decree and decree of the courts below remanded the matter to the first appellate court for going into the said question. In view of the aforesaid decisions it must be held that merely because the appellant did not raise the question of partial eviction in the written statement and no issue has been framed in that regard and no evidence has been adduced by the parties, would not preclude the appellant from raising that question before this Court in as much as it is incumbent upon the court to consider the said question in view of the second paragraph of Sub-section (2) of Section 14 of the Act. As regards the submission of Shri Bhandari that the principle of partial eviction cannot apply to a shop it may be stated that in Satwant Kaur Vs. Dhund Singh (4), this Court had passed a decree for partial eviction in respect of a shop and the said judgment of this Court was affirmed by the Supreme Court. It cannot, therefore, be said that the principle of partial eviction can have a no application in cases where the premises is only a shop. Taking into consideration the fact that this plea has been raised for the first time in second appeal and no evidence has been recorded in this regard. I consider it just and proper to frame the following additional issue and obtain the finding of the first appellate court on the same, so that this appeal may be decided in the light of the said finding: - "whether the reasonable requirement of the plaintiff would be substantially satisfied by evicting the defendant from a part only of the premises as contemplated in second paragraph of Sub-section (2) of Section 14 of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950?"
(3.) THIS issue is remitted to the court of Additional District & Sessions Judge No. 6, Jaipur City, Jaipur for recording a finding on this issue after affording an opportunity to both the parties to adduce their evidence. The finding may be sent to this court within a periof of six months from the date of the receipt of the record. The parties are directed to appear before the Additional District & Sessions Judge No. 6, Jaipur City, Jaipur on 26th April, 1989. The record may also be sent. .;