Ajesh Gupta and Others vs Bhupinder Singh

Sunil Hali, J.—A shop, situated at Link Road, Jammu, was given on rent to the appellants in the year 1969 on a monthly rent of Rs. 120.

Suit for eviction was filed in the year 1982 and after a lapse of 19 years the trial Court passed the order of eviction. The order of the trial Court

has been affirmed by First Appellate Court approximately after a period of eight years. The decree has been passed on the basis of personal

necessity of the plaintiff. Both the Courts below have, after appreciating the evidence, held that the necessity of the plaintiff was more than that of

the, appellants.

The appellants have contested the orders of the two courts below mainly on the ground of non-framing of issue of partial eviction for determining

whether the requirement of the plaintiff could be satisfied by partial eviction from the premises.

It was contended by Mr. Gupta that in terms of the judgment of the Apex Court, it was mandatory on the part of the trial court to frame an issue

of partial eviction.

I have heard learned Counsel for the parties.

Issues are framed only where the parties are at variance. The trial Court, in its judgment, has categorically stated that both the parties to the

dispute have admitted that their need cannot be satisfied by partial eviction of the suit shop; The appellants have also not pleaded the same in their

written statement. It has come on the record that need of neither of the parties can be met by partial eviction of the defendants. This being the

position, the question of framing issue with respect to partial eviction did not arise. There is no other issue which has been canvassed before this

Court.

This appeal has, as such, no merit. It is, accordingly dismissed in limine. It is, however, directed that for a period of four months the decree shall

not be given effect to. The appellants will vacate the suit premises by 30th of April, 2010 and handover the possession of the shop to the

respondent.