IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.2118 of 2007 RADHA KRISHNA DUMREWALA & ANR Versus JIWAL MAL KOTHARI ----------- 5 15.12.2008 Heard counsel for the defendants-tenants- petitioners as also counsel for the plaintiff-landlord- opposite party. This Court on perusal of the impugned judgment in the connected Eviction Suit would find that the court below has committed jurisdictional error in shifting the onus of proving the personal necessity on the defendant- tenant. It is well settled that plea of personal necessity in a suit for eviction is taken by the plaintiff-landlord and it is he who has to prove such personal necessity. The defendant-tenant can only question such personal necessity of the plaintiff-landlord by seeking to displace the plea raised by the landlord. In the impugned judgment, however, the court below has held that it is the defendant-tenant who has failed to prove that the plaintiff-landlord did not require the house for his own personal necessity. Such erroneous approach obviously has resulted into miscarriage of justice. This Court is also not satisfied with the manner in which the court below has dealt the question of partial eviction while decreeing the suit in favour of the plaintiff- - 2 - landlord. As a matter of fact there is no discussion of any evidence on the issue of partial eviction and the issue of partial eviction has been decided on mere ipsi-dipsi by the court below. Such causal effort for deciding the crucial issue of partial eviction by itself would be sufficient to set aside the impugned judgment decreeing the suit for eviction against the defendant-petitioner. This Court, however, must note that the real objection of the petitioner against the impugned decree of eviction was based only on the aforementioned two grounds, namely, the personal necessity and the partial eviction. Counsel for the petitioner did not address this Court on any other issue and as such this Court would not find the remaining portion of the impugned judgment to be bad wherein the issue of relationship of landlord and the tenant has been decided in the light of the evidence on record. The submission of counsel for the petitioner that no fresh evidence would be required for recording the findings on the question of personal necessity and/or partial eviction, is also not opposed by counsel for the plaintiff-landlord, who in fact had tried to refer those evidence for sustaining the findings of the court below even in respect of personal necessity and/or partial - 3 - eviction. This Court, however, cannot undertake this exercise of reappraising the evidence specially when it has already came to a conclusion that both the issues of personal necessity and the partial eviction has been dealt with and decided by the court below in a perfunctory manner. The moment onus of the personal necessity was shifted by the court below on the defendant-tenant; it must be held that the trial court itself had not appraised the evidence on record in a proper and effective manner. Moreover, when the court below has also failed to refer to any evidence even on the question of partial eviction which there is little option for the superior court including this Court exercising revisional power, but to remit the matter back for reconsideration. That being so, the impugned judgment and the decree passed by the court below is set aside and the matter is remitted back to the trial court which would rehear the parties and pass a fresh judgment after considering the evidence on record, both on the issue of personal necessity and the partial eviction strictly in accordance with law. As the eviction suit has remained pending for the last twenty years the same must be disposed of as expeditiously as possible but not later than six months - 4 - from the date of receipt/production of a copy of this order. Let original records of the court below be sent back forthwith. Bibhash/Abhay (Mihir Kumar Jha, J.)