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PETITIONER: NASIRUL HAQUE

       Vs.

RESPONDENT: JITENDRA NATH DEY

DATE OF JUDGMENT24/08/1984

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA THAKKAR, M.P. (J)

CITATION:  1984 AIR 1799            1985 SCR  (1) 638  1984 SCC  (4) 498        1984 SCALE  (2)383

ACT:      Finding of  Facts-High Court  calling for  a finding of facts from  the trial  court bypassing  the appellate court- Whether conclusive  and immune  from the  scrutiny of Highly Court in a second appeal.      Bihar Buildings  (Lease, Rent  & Eviction) Control Act, 1977-Proviso to sec. 12 (1) (c)-Partial Eviction-Scope of

HEADNOTE:      In  a  second  appeal  filed  by  the  appellant-tenant against an  eviction order,  the  High  Court  remanded  the matter to  the trial  court and  called for a finding on the question  of   partial  eviction.   The  trial  court  while recording its  finding was  of the view that the question of partial eviction  should be  considered in  the light of the requirement of the landlord-respondent as deposed to by him. The High  Court accepted  the finding  of  the  trial  court without   scrutinising   it   and   dismissed   the   appeal accordingly. Hence this appeal by special leave.      Allowing the appeal. ^      HEID: (1)  The High  Court should  have scrutinised the finding of  the trial  court with  special reference  to the question of partial eviction even on facts as the finding of the trial  court standing  on  its  own  (not  confirmed  by appellate court) is not conclusive on facts even in a second appeal. This  is so  because the High Court had called for a finding  of   facts  from  the  trial  court  bypassing  the appellate court and thus deprived the right of appeal to the District Judge  (last court  on facts)  which might not have agreed with the trial court. [640 A-B]      (2) The High Court as well as the trial court failed to take into  account the  Proviso to section 12 (1) (c) of the Bihar Buildings  (Lease, Rent  & Eviction) Control Act 1977, which provides, inter alia, that 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 building  and allowing  the tenant  to continue occupation of  the  rest  and  the  tenant  agrees  to  such occupation, the  Court  shall  pass  a  decree  accordingly. Therefore, the court has, to determine; 639

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    (i) the  extent of  the  premises  which  the  landlord "reasonably" requires.  Determine it  objectively and not on the basis  of his ipse dixit or his mere desire to occupy as much as  he wants;  and (ii) whether such requirement as the court  considers   reasonable,   will   be   ’substantially’ satisfied  (not   fully  satisfied)   by  ordering   partial eviction. [639 G-H]      The Court remanded the case to the High Court to decide the question afresh after considering the evidence on record in the light of the aforesaid observations. [640-F]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 3482 of 1984.      Appeal by  Special Leave  from the  Judgment and  Order dated the  8th May,  1984 of  the Patna High Court in Second Appeal No. 182 of 1978.      Jayanarayan, Miss S. Agarwal D.S. Mehra and R. P. Singh for the Appellant.      Lal Narain Sinha and D. P. Mukharji for the Respondent.      The Judgment of the Court was delivered by FAZAL ALI.  J. After  hearing counsel for the parties we are clearly of  the view  that the  judgment of  the High  Court cannot be sustained for two reasons. Firstly, the High Court had earlier  remanded the case to the trial court and called for a  finding from  the trial  court  on  the  question  of partial  eviction.  The  trial  court  while  recording  its finding was  of  the  view  that  the  question  of  partial eviction  should   be  considered   in  the   light  of  the requirement of  the landlord  as deposed to by him. In doing so, the  High Court  failed to take into account the proviso to Section  12 (1)  (c) of the Bihar Building (Lease, Rent & Eviction) Control  Act of  1977, which in terms enjoins that what is  necessary to  be  considered  is  the  ’reasonable’ requirement  of   the  landlord  and  whether  it  would  be ’Substantially’ satisfied by evicting the tenant from a part only of  the premises. The Court has therefore, in the first instance, to  determine the extent of the premises which the landlord "reasonably" requires. Determine it objectively and not on  the basis  of his  ipse dixit  or his mere desire to occupy as much as he wants. But the Court has to furthermore apply a  test as  to whether  such requirement, as the Court considers reasonable, will be ’substantially’ satisfied (not fully satisfied)  by ordering  partial eviction.  This vital aspect has been 640 altogether overlooked  by the  trial court.  Secondly, since the High  Court had  directly called  for a finding from the trial court  itself, the  High Court should have scrutinized the said  finding with  special reference to the question of partial eviction  even on  facts as the finding of the trial court standing on its own (not confirmed by appellate court) is not  conclusive on facts even in a second appeal. This is so because  the High  Court had called for a finding of fact from the  trial court bypassing the appellate court and thus deprived the  right of  appeal to  the District  Judge (last court on  facts) which,  for aught  we know,  might not have agreed with  the trial  court and  may have  considered  the question from the point of view indicated by us, viz, giving full effect  to the  concept of  reasonable  extent  of  the requirement   from   the   perspective   of   ’substantials’ satisfaction  of   such  requirement  as  considered  to  be reasonable objectively.  Only in  case  the  District  Judge

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would have  agreed with  the finding of the trial court then it may  have become  a finding  of fact which was binding on the High  Court in second appeal. Besides the question as to the connotation  of the  word  ’substantial’  was  itself  a substantial point  of law  there being  no decision  of  the Patna High  Court on  this specific  point.  Other  Acts  in various States  do not  embody the  concept of "substantial" satisfaction. These  decision would therefore be of no avail in the  context of  the facts  of the present case. In these circumstances, it  cannot be  said that  the finding  of the trial court,  which is  not the  final court  on  facts,  is conclusive and  immune from  the scrutiny  of the High Court even in  a second  appeal. We  therefore, allow  appeal, set aside the  decree of  the High  Court and remand the case to the  High   Court  to   decide  the   question  fresh  after considering the  evidence on  record in  the  light  of  the aforesaid  observations.   The   appeal   is   disposed   of accordingly.      In the  meantime there  will be  stay of dispossession. The High  Court is  requested to expedite the hearing of the case. M.L.A.                                        Appeal allowed 641