AB RASHID BAKSHI Vs. DEVKI DURRANI

JUDGEMENT

(1.) THIS civil revision petition is directed against the judgment of the learned District Judge, Srinagar, in civil appeal No. 21 of 1978, remanding the case to the trial court under Order 41 Rule 25 C. P. C. and directing the court to determine as to whether reasonable requirement of the plaintiff petitioner can be substantially satisfied by evicting the tenant -respondent from a part of the shop in dispute.

(2.) TO put in brief the facts of the case are that in a suit for ejectment in respect of a shop as described in the plaint, the trial court of the Sub Judge (J. S. C. C.) Srinagar, passed a decree for eviction against the tenant -respondent herein. An appeal was taken before the District Judge, Srinagar. An argument was raised before the learned lower appellate court that the trial Judge had omitted to frame an important issue in the suit as to whether partial eviction from the suit premises would meet the requirements of the plaintiff -respondent. It was submitted that the trial court was bound to consider this important question in the light of the proviso 2 to Section 11 cl. (h) of the Jammu and Kashmir Houses and Shops Rent Control Act, which mandates the court to determine as to whether a partial eviction from the suit premises would meet the genuine requirements of the plaintiff -landlord. This argument found favour with the appellate Judge who remitted this issue to the trial court for its finding thereon, with the direction that it will afford reasonable opportunity to the parties of adducing such additional evidence as they deem fit. The court, however, rejected the request made by the defendant -respondent to seek leave to amend the written statement in the trial court. Aggrieved by this order, the plaintiff -landlord has come up in revision before this court. Along side the tenant defendant has also filed a revision petition against the order of the appellate court declining to accede to the request of the tenant defendant to make an application for leave to amend the written statement in the trial court. J:

(3.) SHRI S. P. Gupta appearing for the petitioner -landlord has submitted that the order of the lower appellate court in remitting the issue to the trial court for its decision is palpably wrong as the court had started on wrong premises. He has submitted that where the landlord claims eviction of the tenant on the ground of personal necessity, then the court after deciding the question of personal requirement has also to consider the comparative advantages and disadvantages of the parties for making an order of eviction. If the court decides the question of comparative advantages and dis -advantages in favour of the landlord and finds that the landlord is .entitled to the recovery of the suit premises then, what the court has further to consider it .whether partial eviction from the suit premises would satisfy the requirement of the landlord. In the instant case, the appellate court has without determining the first two aspects proceeded to consider the third requirement of law, i. e. partial eviction and in this way has mis -directed itself. It is further submitted that the court below should not have remitted the question to the trial court for its determination. There was material on the record on the basis of which the appellate court could itself determine this question and pass appropriate order. No wherein the written statement or .in his arguments has the defendant pleaded that he was not able to get any shop for carrying on his business. The defendant was already in possession of some shops and partial eviction from the suit premises was, therefore, not a proposition which had any merit and carried any weight. Reliance is placed, on A I. R. 1979 S. C. 272, A.I.R, 1966 Patna, 422, and 1013 P. C. 3 and unreported judgment of this court rendered by Kotwal J. in Subash Chander Vs. Kishori Lal decided on 22 -9 -1979.