Guna Wati vs Rugh Nath Rayu

This case involves the determination of the scope of the proviso to the explanation to subsection (h) of Section (11) 1 of the Houses and Shops

Rent Control Act 1966 (shortly 'the Act'). The events leading up to the 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 the shop into a room in order to supplement her

residential accomodation which was inadequate. The trial court found that the requirement by the appellant was not reasonable. The first appellate

court affirmed the funding. 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 provise 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 landlords 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 judgement of the Supreme Court in the case of Rehman Joo Wangoo

Versus Ram Chand and ors (AIR 1978 S.C. 413. The learned Single Judge repelled the plea on two rounds: firstly thai no specific plea in this

regard had been raised in the phJnt and no issue had been framed nor any evidence led 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, still it was not necessary to go into this

question because any such determination would be an idle exercise so long as it had been found that the landlord did not reasonably require the

property for his own occnpation. The learned single Judge observed that the Judgement 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 content 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 letlers patent in order to enable her to seek adjudication on the trueescope of the proviso to the explanation to

SubSection (h) of Section 11 (1) of the Act. The learned Single Judge was pleased to grant the leave and that is how the matter had come up

before us. The explanation and the proviso appended thereto appearing under subcl. (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 rebuilding, or for his own occupation or for

the occupation of any person for whose benefit the house or shop is held :

Provided that all subtenants in the house or shop are made parties to the suit and allowed opportunity of contesting claim to decree ejectment.

Explanation. The court in determining tht reasonableness of requirement for purposes of building or rebuilding shall have regard to comparative

public benefit or disadvantage by extending or diminishing accomodation, and in determining reasonableness of requirement for occupation shall

have regard to the comparative advantage or dis advantage 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 occuption, the court shall pass a

decree accordingly and fix a proportionally 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 3 and the rent fixed shall be deemed to be the fair rent fixed under Section 8.

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 accupation pleaded by the

landlord is responsible. 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 opienion, it would be necessary for the court to go into that question

even in the absence of such place provided, cf 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 judgement of Supreme Court in the case of Rehman Joo Manjoo

(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.

Learned counsel next contended that the first appellate court had relied upon the report of the Commissioner which did not constitute evidence

iu 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.