KEWAL KRISHAN Vs. MAST RAM ABROL

JUDGEMENT

(1.) THIS appeal is under section 100 of the Code of Civil Procedure. Sh. Mast Ram Abrol, the respondent herein brought a suit for ejectment of the appellants and respondents 2 to 4 from the shop which he had leased to late Ram Saran on a monthly rent of Rs.30/ - in the year 1974. The original tenant (Late Sh. Ram Saran) it is admitted died sometime in the year 1979 -80 and is survived by the appellants and the respondent 2 to 4. The landlord sought ejectment of the tenant on the ground of default in the payment of rent and personal necessity. The trial court of Munsiff, Jammu decreed the suit on 27 -02 -1990 holding that the tenants were guilty of default in the payment of rent and also the shop is reasonably required by the landlord for his personal use and the occupation. The First Appellate Court (1st Additional District Judge, Jammu) concurred with the finding of the trial court that the shop was reasonably required by the landlord and his requirement was comparatively greater than that of the tenant. The appellate court, however, reversed the finding on the question of default as according to it notice calling upon the tenant to pay or deposit arrears of rent in terms of proviso to clause (i) of sub -section (1) of section 11 of the J&K Houses and Shop Rent Control Act (for short the Rent Control Act) had not been served upon all the tenants. However, it confirmed the finding that the tenants were in arrears of rent and in case it is found that notice was validly served, a decree for ejectment would follow.

(2.) THE only ground which has been urged by the learned counsel appearing for the appellants is the failure of the trial court and the first appellate court in recording a finding as contemplated in the proviso to the explanation section 11(1)(h) of the Rent Control Act. Mr. Pangotra learned counsel appearing for the appellants submits that in the absence of any finding that the requirement of the landlord could be satisfied by partial eviction, the judgment and decree impugned is liable to be set aside and the plaintiffâ„¢s suit dismissed. In support of this he placed reliance on the decision of Apex Court in Raman Jee Wangnoo Vs. Ram Chand & othersâ„¢, AIR 1978 SC 413; and Krishna Murari Prasad Vs. Mitar Singhâ„¢, AIR 1994 Sc 489. Mr. Sharma, learned counsel appearing for the landlord, however, argued that the partial eviction is possible only when the premises admit of division and the tenant is willing to occupy part of the portion. Since the appellants nowhere pleaded that they are willing for partial eviction, therefore, trial court was justified in not considering the question of partial eviction. The Appellate Court, according to him, rejected a similar argument on the ground that no evidence was produced by the tenant.

(3.) IT is clear that issue with regard to the partial eviction has not been framed. It is also not disputed that no evidence was led by the parties as to whether the premises are capable of being divided and if so divided the requirement of the landlord can be satisfied by partial eviction. The appellants are, therefore, prejudiced by the absence of the issue. The law is now settled that such a issue is necessary so as to return a finding. In Raman Jeeâ„¢ case (supra) their Lordships held as under: -