M C SINDHI Vs. HEMANDASS

JUDGEMENT

(1.) THE suit for eviction on the ground of personal bonafide and reasonable necessity of the disputed shop has been decreed by the learned Additional District Judge No. 3, Kota, vide his judgment and decree dated 28. 10. 1994. This decree has been challenged in this Second Appeal. THE only submission of the counsel for the appellant is that question of partial eviction was not decided by the lower courts. Under these circumstances the case be remitted to the lower court by framing additional issue, regarding partial eviction. In support of his arguments, counsel for the appellant placed reliance on a judgment of Apex Court passed in Krishna Murari Prasad Vs. Mitar singh (1 ).

(2.) COUNSEL for the plaintiff respondent submits that the aforesaid judgment is not applicable to the facts of the present case. The said judgment was delivered under the Bihar Buildings (Lease, Rent and Eviction) Control Act (1982), hereinafter referred to as the (Bihar - Act ). The phraseology under the Rajasthan Act and Bihar Act is different. Further more the High Court in the aforesaid case of Krishna Murari (supra), rejected the plea of partial eviction on the ground that the premises consists of one shop which can not be divided. Under these circumstances the Apex Court allowed the appeal of the tenant and directed the trial court to examine the matter in the light of the requirement of proviso to clause (c) of sub-section (1) of s. ll of the Bihar Act. He submits that in the present case the dimension of the disputed shop is 10 X 10 and in case it is divided into two portions the plaintiff respondent would suffer hardship. He can not do his business of 'cut-piece' in a shop of 5 X 10 '.