NARSINHA NARAYAN SHIRODKAR Vs. VASANT GANPAT SHINDE

JUDGEMENT

(1.) THIS is a Petition directed against the Judgment dated 29-11-1994 in Civil Appeal No.254 of 1993 on the file of VI Addl. District Judge, Thane. Heard both sides.

(2.) THE Respondent-Landlord filed eviction suit against the Petitioner-tenant on the ground of requirement of the premises bonafide. After trial, the trial Court accepted the landlord's case and granted eviction. An Appeal filed by the tenant was unsuccessful, hence he has approached this Court by way of this Writ Petition.

(3.) ANOTHER contention urged was that both the Courts below have not considered the question of partial eviction and the issue may be framed and the suit may be remanded to the trial Court. It is true that the Court under the Rent Act has a statutory duty to find out whether partial eviction is feasible or not. In the very nature of thing partial eviction is a question of fact depending upon the number of members in the landlord's family, the number of members in the tenant's family and the extent of accommodation and whether the premises can be divided into two parts conveniently. All these matters cannot be decided without sufficient evidence and that too for the first time before this Court in a Writ Petition under Article 227 of the Constitution of India. The impugned orders do not show that any grievance was made on these grounds either before the trial Court or before the Appellate Court. at the time of hearing, the learned Counsel for the Respondents stated that there are nine members in the landlord's family. A sketch of the suit premises is available in the paper book which show that there are two rooms, one living room and one bed room. By any stretch of imagination it is not practicable and convenient to divide the suit premises in two parts having a living room, kitchen, bath room etc. Hence in the circumstances, the theory of partial eviction is not possible in this case and further this theory was never pleaded in the trial Court nor raised in the Appellate Court and no evidence is available on this point. No ground is made out to interfere in the decree for eviction passed by the Courts below.