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PETITIONER: REHMAN JEO WANGNOO

       Vs.

RESPONDENT: RAM CHAND AND ORS.

DATE OF JUDGMENT07/12/1977

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. GOSWAMI, P.K. TULZAPURKAR, V.D.

CITATION:  1978 AIR  413            1978 SCR  (2) 380  1978 SCC  (3) 539

ACT: Jammu and Kashmir Houses and Shop Rent Control Act, 1966, S. 11(1)(h)  Second Proviso to Explanation, Interpretation  of- Whether  mandatory  for  the courts to comply  even  in  the absence of specific pleading.

HEADNOTE: Under the second proviso to the Explanation to S. 11 (1) (h) of  J & K Houses and Shop Rent Control Act, 1966  the  court before  evicting the tenant from part only of the  premises, must  satisfy  itself after taking the  entire  evidence  to fulfil the reasonable requirement of the landlord. The High Court in second appeal held that the trial court as well as the first appellate court have taken this point into consideration  and  found that it would not be  feasible  to order  the eviction of the appellant only from a portion  of the suit premises and therefore dismissed the appeal. Granting  the special leave, allowing it and  remanding  the matter, the court. HELD:The  second proviso to the Explanations to  S.  11 (1)  (h)  of  the Jammu and Kashmir Houses  and  Shops  Rent Control  Act,  1966 mandates the court to  consider  whether partial  eviction as contemplated therein should be  ordered or  the  entire holding should be directed  to  be  evicted. This  aspect, therefore requires judicial exploration  after giving  opportunity to both side, to lead evidence  in  this behalf.   The  court must proceed on the  footing  that  the absence  of a specific pleading under the said proviso  does not  stand in the way of the obligation of the court to  act in compliance with the mandate of the statute. [381 A-B-D] R.  S.  Madan v. G. M. Sadiq, 1971, J & K Law  reports  260; over-ruled. Rehman Jeo Wangnoo v. Ram Chand & Ors.  Civil Second  Appeal No. 46 of 1975, J & K dated 30-9-1975 reversed.

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  2954  of 1977. Appeal by special leave from the Judgment and Order dated 1-

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11-1976 of the Jammu and Kashmir High Court in Civil  Second Appeal No. 46/75. Niren De and Altaf Ahmed for the Petitioner. Hardyal Hardy and R. P. Sharma for the Respondents.                            ORDER Delay  condoned and special leave granted on a point  raised by the, appellant under the proviso to the Explanation to s. 1  1 (1) (h) of the Jammu and Kashmir Houses and Shops  Rent Control Act, 1966 (for short, the Act). The only ground which we consider tenable and which has been urged  by the appellant before us turns on the,  failure  of the courts of 381 fact  in recording a finding as contemplated in the  proviso to  the Explanation to s. II (1) (h) of the Act.   Obviously an error has been com-mitted by the, High Court in  thinking that there is a concurrent finding of fact under the proviso aforesaid.   The trial court and the first  appellate  court have  really  not considered this question  on  the  merits; indeed evidence itself has not been taken on the score  that there  has  been no specific plea in that  behalf.   We  are satisfied that the proviso aforesaid mandates the, court  to consider whether partial eviction as contemplated the should be  ordered or the entire holding should be directed  to  be evicted.    This   aspect,  therefore,   required   judicial exploration  after giving opportunity to both sides to  lead evidence) in this behalf. We direct the first appellate court to go into the  question as to whether the reasonable requirement of the landlord may be  substantially ,satisfied by evicting the tenant  from  a part  only of the premises as contemplated in  the  proviso. If  after  taking evidence the court is satisfied  that  the entire  house  or premises must be vacated  to.  fulfil  the reasonable  requirement of the landlord, the  present  order will  stand.  If, on the other hand the court  finds,  as  a fact, that partial eviction will meet the ends of justice as visualised  in  the proviso, an appropriate  order  will  be passed on that footing.  The court will take up the case  on file pursuant to this order of remand and confine itself  to this  limited  issue,  give  opportunity  to  both  to  lead evidence on this sole question and dispose of the appeal  in accordance  with  law  within two months.   The  court  must proceed  on  the  footing that the  absence  of  a  specific pleading under the said proviso does not stand in the way of the  obligation of the court to act in compliance  with  the mandate of the statute.  There will be no-order as to  costs in this court. S. R.                          Appeal allowed and                                case remanded. 382