1 S.B. CIVIL SECOND APPEAL NO.325/2007 Mehboob Ali vs Habiban & Ors. DATE OF ORDER : 17.12.2007. HON'BLE MR. PRAKASH TATIA, J. Mr.Sajjan Singh, for the appellant. Mr.Manoj Bhandari ] Mr.PS Rathore ], for the respondents. <><><> Heard learned counsel for the parties. The decree for eviction of the appellant was passed by the trial court vide judgment and decree dated 22nd April, 2003 after considering the question of partial eviction and the appellate court dismissed the appeal vide judgment and decree dated 25th May, 2007 that too, after considering the question of partial eviction, which is required to be decided by the court under Section 14(2) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as the Act of 1950). After going through the reasons given in the impugned judgments of both the courts below, I do not find that any substantial questions of law are involved in this appeal so far as decree for eviction on the ground of personal bonafide necessity is concerned. So far as contention of learned counsel for the appellant-tenant that the court may pass decree for part of the premises, which will satisfy the need of the appellant- defendant and the plaintiff both, learned counsel for the 2 appellant submitted that the suit premises is bigger shop having length of two arms; one arm of 27' 6” and second arm in the back side 31'. Width of the shop at one arm is 7' 6” and at another arm more than 10'. In view of the fact that the appellant is running a tea stall and the plaintiff-respondent will have his grocery and bangle shop in the rest of the part, therefore, the suit premises can be divided in two parts. Learned counsel for the appellant submitted that both the courts below have not considered this aspect in proper perspective and should have decided the issue keeping in mind the spirit behind the Section 14 (2) of the Act of 1950 as it is a beneficial legislation and the Hon'ble Supreme Court in the case of Jivram Ranchhoddas Thakkar & Anr. Vs. Tulshiram Ratanchand Mantri & Ors reported in AIR 1977 SC 1357 while considering the relevant provisions of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 observed that this is a human problem and the court is required to decide it according to the legal guidelines set out in Section 13(1) of the Bombay Act. Taking a humanist approach, the Hon'ble Supreme Court felt that it was right to adopt a course of 'live and let live' by the landlord and tenant in the fact of said case. In the said case, the decree for only part of the premises was granted in favour of the landlord leaving part of the premises for the tenant for his own purpose in the tenancy. According to learned counsel for the appellant in view of the above reasons, the courts should have decided the issue of partial eviction after considering over all circumstances of the case and not merely on the basis of 3 pleas taken by the plaintiff and defendant. I considered the submissions of learned counsel for the parties and perused the record. It appears from the pleadings that defendant in his written statement clearly stated that partial eviction of the premises is not possible and in case, the suit premises is divided in part then he cannot run his business. The statement of the defendant in the trial court is also to the same effect, but it appears that when the trial court decreed the suit of the plaintiff for whole of the premises and decided the issue of partial eviction against the defendant after considering the fact that defendant's business may create nuisance for the business which is likely to be run by the plaintiff, held that the partial eviction is not possible then the appellant in appellate court submitted an application under Order 14 Rule 2 CPC and submitted a map of the shop for saving part of the premises with the plea that suit premises may be divided and decree for eviction may not be passed for whole of the premises. It is clear that appellant-tenant wants to back out from his own admission made in the pleadings, which is that in case, the suit premises divided and part of the premises is given to the appellant-tenant then his need cannot be fullfiled and he clearly admitted that he cannot run his business in part of suit premises. His evidence is also in support of his plea, still the appellant wants to submit that the court should have granted relief to the defendant asking him to keep the part of the premises with 4 him. The argument is based on assumed interpretation of Section 14(2) of the Act of 1950 and it has been suggested that even if the person, who is the best judge of his need states that his need cannot be satisfied from the part of the premises can be asked to keep part of the premises on rent. This plea cannot be entertained. The parties are required to take all appropriate pleas, which they can take in the facts of the case, which includes taking alternate plea. In this case, there is no plea of the defendant that part of the premises can satisfy the need of the plaintiff and the defendant. It will be worthwhile to mention here that plaintiff's case is that in case, the suit premises is divided in parts and if the decree is passed for the part of the premises then his need will not be satisfied. Virtually the plaintiff's said case was accepted by the defendant by admitting that even need of the defendant cannot be satisfied from the part of the premises. In that situation, the plaintiff could not have led evidence in support of his case so as to show that even if the defendant need can be satisfied from a very smaller portion of the premises, then the plaintiff cannot spare smaller or smallest portion from the premises which is required for business of plaintiff. Further, when according to the appellant himself the court can look into all surrounding circumstances for passing appropriate order in favour of the defendant and could have granted decree for part of the premises in favour of the plaintiff then the defendant-appellant cannot say that the courts could have looked into all surrounding 5 circumstances and assumed certain facts in favour of the defendant alone and could not have drawn inference in favour of the plaintiff. In this case, the trial court as well as appellate court considered all surrounding circumstances and nature of the business of the plaintiff and the defendant and observed that in the business of the plaintiff the customers will be ladies and girls whereas in the business of the defendant, the customers will be the persons who may sit in the tea hotel of the defendant, which may cause nuisance. In view of the above reasons, I do not find that the courts below have committed any error of law so as to constitute a question of law much less than substantial questions of law. Hence, the appeal of the appellant is dismissed. (PRAKASH TATIA), J. c.p.goyal/-