REHMAN JEO WANGNOO

RAM CHAND AND ORS.

December 7, 1977

B rv. R. KRISHNA IYER, P. K. GOSWAMI AND v. D. TULZAPURKAR JJ.]

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

Under the second proviso to the Explanation to S. ll(!)(h) of J & K Hou1es 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 (I )(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 sides 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 AB-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.

F CIVIi. APPELLATE JURISDICTION: Civil Appeal No. 2954 of 1977.

Appeal by special leave from the Judgment and Order dated 1-11-1976 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. 11 ( 1) (h) of the Jammu and Kashmir Houses and Shops Rent Control Act, 1966 (for H 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 ot

. \ REHMAN JEO v. RAM CHAND (Knshna Iyer, J.) 381

fact in recording a finding as contemplated in the proviso to the Expla- A nation to s. 11(1.) (h) of the Act.

Obviously an error has been committed by the Hi&JI 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 B therein. should be ordered or the entire _holding should be directed to be evicted.

Tiris aspect, therefore, iequfres judicial exploration after giving 0pportunity to both sides to lead. evidence in this behalf.

We direct the first appellate court to go into the quest.ion as to whether the reasonable requirement of the landlord may be substantially

sf1.(isfted by evicting the tenant from a p; ut only of the premises as c cODtemplated 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 partia, J evicti6n will meet the ends of justice as visualised in 1the 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 D 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 tile 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.