Patna High Court
Bharati Pustak Kendra And Ors. vs Chhedi Lal Daruka on 3 July, 1992
Equivalent citations: 1993(1)BLJR281
Author: B.N. Agrawal
Bench: B.N. Agrawal
JUDGMENT Nagendra Rai, J.
1. The defendants have filed the present revision application against the judgment and decree dated 22nd May, 1990, passed by Subordinate Judge II Darbhanga, in Eviction Suit No 2 of 1986 by which he has decreed the suit for eviction filed by the plaintiff-opposite party against them on the ground of personal necessity with regard to the suit premises under Section 11(1)(c) of the Bihar Buildings (Lease, Rent and Eviciion) Control Act, 1982 (hereinafter to be referred to as the Act).
2. The plaintiff-opposite party btought the aforesaid suit for eviction of the petitioners from the two eastern most shops on the ground-floor (which are presently amalgamated into one) and eastern most one room on the first floor being portions of Holding No. 200 situate at Tower Chowk, Katki Bazar in the town of Darbhanga, described in Schedule 'A' of the plaint.
3. Admittedly, the defendants were inducted as tenants in the suit premises by the father of the plaintiff Bhagwan Das Daruka and in partition between Bhagwan Das Daruka and his sons, the suit premises fell in the share of the plaintiff and the defendants accepted him as landlord.
4. The plaintiff's case, in brief, is that he is the head and karta of the Family consisting of himself and his three sons, namely, Dilip Kumar Daruka, Deepak Kumar Daruka and Dinesh Kumar Daruka and in that capacity he has filed the present suit. He and his sons are the owners of the suit premises and defendants are month to month tenants of the same, consisting of three rooms which are let out to them separately. Eastern room on the ground floor was let out to them on monthly rental of Rs. 230, western room on the ground floor on monthly rental of Rs. 130 and the one room on the first floor on a monthly rental of Rs. 65. Though separate receipts are granted with regard to the three aforesaid suit premises but the entire premises are the subject-matter of one tenancy. The plaintiff's family belong to the trading class and main source of income of the family is business. Two sons of the plaintiff, namely, Deepak Kumar Daruka and Dinesh Kumar Darukn are still unemployed. They have taken practical training in the cloth business and one of them namely Deepak Kumar Daruka wants to start a cloth businese and it is the duty of plaintiff to provide acchmmodation to him for the said business. The suit premises is the most suitable place for running a cloth business for Deepak Kumar Daruka. Plaintiff requested the defendants to vacate the aforesaid premises for the said purpose but they refused, hence the suit.
5. The defendants do not deny the fact that they are tenants under the plaintiff but their assertion is that the plaintiff is not the karta of the joint family consisting of himself and his three sons. He and this three sons are separate and they are doing their own trade and business and he same is proved by the fact they are submitting separate incom-tax returns. Plaintiff's son Deepak Kumar Daruka is not unemployed. He is carrying on his senarate business of money lending and investment tn different ways. The plaintiff does not require the suit premises reasonably and in good faith for starting a business for his sons Deepak Kumar Daruka; on the other hand, he has filed the present suit with a mala fide intention to evict them from the suit premises as they did not agree to enhance the rent of the premises as demanded by the plaintiff. It was also asserted that the plaintiff with mala fide intention did not allow them to use the flight of stairs which was the part of the tenancy and was being used by them for going to the first floor from the ground floor. It was further asserted that the single suit was not maintainable inasmuch as there were three different tenancies and that gave rise to three separate and distinct causes of action and three suits should have been filed.
6. The suit was tried under the special procedure provided under Section 14 of the Act. Both the parties adduced oral and documentary evidence and the learned Subordinate Judge, after considering the materials on the record, came to the conclusion that the plaintiff is the karta of the joint family governed by Hindu Mitakshara Law comprising of himself and three sons and thus competent to file a suit for eviction for the personal necessity of one of his sons. The plaintiff requires the suit premises reasonably and in good faith for running a cloth business for one of his sons, namely, Deepak Kumar Daruka and that the reasonable requirement of the plaintiff will be satisfied by the eviction of the tenant from the entire suit premises.
7. learned Counsel appearing for the petitioners canvassed three submissions in this case; firstly, the suit was bad for misjoinder of causes of action inasmuch as three different suit should have been filed instead of one and in that view of the matter the judgment and decree passed by the court below is vitiated in law, secondly, the son of the plaintiff namely, Deepak Kumar Daruka, is already in business and as such there is no reasonable and bona fide necessity to the plaintiff for providing the suit premises to his aforesaid son for running a cloth business and thirdly, the finding on the point of partial eviction is not in accordance with law as the court below has not considered the case on the said point in accordance with the requirement of the proviso to Section 11 (1)(c)of the Act.
8. learned Counsel appearing on bihalf of the opposite party, on the other hand, contended that according to the case of the plaintiff though the premises were let out separately and rent receipts were granted separately there was only one tenancy and as such there was no misjoinder of causes of actio i and rightly only one suit was filed in this case. Alternatively, he submitted that even if there were three different causes of action, one suit was maintainble in respect of the same in view of the provision contained under Order II, Rule 3 of the Code of Civil Procedure which provides, inter alia, that the plaintiff may envite in the same suit sevaral causes of action against the same defendants, or the same defendants jointly. He further contended that the court below has rightly come to the conclusion that the plaintiff required the suit premises reasonably and in good faith and learned Counsel for the petitioners has not been able to show that the aforesaid finding arrived at by the court below is vitiated in law in the sense that either the court below has overlooked the material evidence or has relied upon inadmissible evidence or the finding is otherwise perverse of against the weU established principle of law. He also contended that the judgment on the point of partial eviction also does not suffer from any legal infirmity for the simple reason that the defendantsjneither in the written statement nor during the course of argument agreed for partial eviction and as such the petitioners did not comply with the requirement of proviso to Section 11 (1) (c) of the Act and in that view of the matter the court below rightly held that the requirement of the plaintiff will not be satisfied by partial eviction from the suit premises.
9. In view of the rival contentions raised on behalf of the parties following question arise for determination in the case :
(i) Whether single suit for eviction was maintainable in this case ?
(ii) Whether the plaintiff required the suit premises reasonably and in good faith for starting a cloth business for one of his sons ? and
(iii) Whether the reasonable requirement of the plaintiff is substantially satisfied by evicting the lenants from a part only of the building or from the whole building ?
10. The revision application has been filed under proviso to Sub-section (8) of Section 14 of the Act which provides, inter alia, that the High Court may for the purpose of satisfying itself that an order under the section is according to law, call for the records of the case and pass such order in respect thereto as it thinks fit. While exercising the power under the said proviso the court has to see that the order is in accordance with the well established principle of law. The power conferred by the aforesaid proviso is wider than the power conferred under Section 115 of the Code of Civil Procedure but the same cannot be equated with the powers of an appellate court for the simple reason that the appeal against the order is barred under the aforesaid sub-section This court will interfere with the order only if there is justice due to mistake of law. However, this court cannot reassess the value of the evidence and interfere with the finding of fact only because according to its view a different conclusion could be arrived at on appreciation of the evidence on the record. Scope of the aforesaid proviso was considered by a Division Bench of this Court in the case of Jai Prakash Jalan and Anr. v. Rambilash Madan Gopal reported in 1991 (2) PLJR page 224 wherein it has been held as follows :
Although, it is not possible to lay down exhaustively the situations where this Court can exercise its jurisdiction under Section 14 (8) of the Act, it is clear that this Court in exercise of its revisional jurisdiction under Section 14 (8) not only can consider the questions which are permissible in terms of Articles 226 and 227 of the Constitution of India as also under Section 115 of the Code of Civil Procedure but also in a case whether the trial court has arrived at a finding of fact upon erroneous construction of a legal provision or acted contrary to law. This Court can also exercise its jurisdiction in a case where the trial court misconstrued a vital document or committed a procedural error.
In a limited sense, therefore, it cannot therefore, be said that in no case the court can look to the evidence on behalf of the parties, but its jurisdiction to consider the evidence brought on records would be only for the purpose of finding out as to whether the Court has failed to arrive at a decision in accordance with law, or misdirected itself in law. 'According to law' means according to the principles of law. A judgment, therefore, which is not in terms of well settled principles of law; both procedural and substantive, would not be 'according to law' and this would be liable to be interfered by the High Court in exercise of jurisdicition under Section 14 (8) of the said Act. But, in any case, it will not reappraise the evidence only for the purpose of reversing a pure finding of fact."
I am in respectful agreement with the statement of law laid down in the said case and the submissions advanced at the bar shall have to be considered in the light of observations made therein.
11. Question No. 1.--Learned Counsel for the petitioners while elaborating the submission on the said point contended that three different tenancies were created at three different times as such there were three different causes of action and in that view of the matter one suit with regard to three separate and distinct causes of action was not maintainable for the simple reason that the provision of the Code of Civil Procedure does not apply to a suit filed under the Act. In support of his submission be relied upon a decision of the Supreme Court in the cases of Chhotelal Pyarelal the Partnership Firm and Ors. v. Shikharchand and upon unreported judgment of the learned Single Judge of this Court in S. A. No. 460 of 1990 Basudeo Prasad Chhapolia v. Lallu Prasad disposed of on 30th Januarv, 1992. In the case of M/s Chhotelal Pyarelal (supra) on eviction suit was filed under the provisions of C. P. and Berar Letting of Houses and Rent Control Order, 1942 for eviction of the tenant before the Rent Controller. One of the points that arose during the pendency of the case as to whether an application for eviction was maintainable against the firm name without adding the partners as defendants and in that context it was held that the Code of Civil Procedure does not apply to proceeding under Rent Control Order and as such no application for eviction can be maintainable against a firm in the firm name. From unreported judgment of this Court it appears that one of the points raised in that case was that eviction suit against one of the partners of the Firm was not maintainable without impleading the Firm and other partners at parties to the suit. Dealing with that decision the learned Single Judge relying upon the aforesaid decision of the Supreme Court observed that as the firm is impleaded as prrty on account of provisions of Order XXX of the Code Civil Procedure and as the Code of Civil Procedure does not apply to a proceeding under the Rent Control Order, the firm cannot be said to be necessary party. No doubt, the aforesaid two case prima facie, support the submission made on behalf of the petitioners but on a proper scrutiny of the facts of those two cases and the provisions of the Act, it is clear that the said submission is devoid of any substance for the reasons stated hereinafter.
12. A suit for eviction is filed in a court having jurisdiction under the Code of Civil Procedure to entertain a suit. All suits for eviction on any of the grounds mentioned under Section 11 of the Act are filed in the Civil Court. Prior to the present Act all the suits for eviction on any of the grounds were disposed of by following the procedure under the Code of Civil Procedure and the decree passed by the Civil Court was subject to appeal and second appeal. However, under the Act a special procedure has been provided under Section 14 of the Act for trial of the suit filed for eviction on the grounds of personal necessity and after expiry of the period of the tenancy, as provided under Section 11 (1) (c) and (e) of the Act. The said procedure has overriding effect over other laws including the Code of Civil Procedure. Except for the special procedure for the trial of the suit for eviction on the aforesaid two grounds other provisions of the Code of Civil Procedure are applicable for the trial cf the suits for eviction. The court has been defined under Section 2(d) of the Act which means the Court having jurisdiction under the Code of Civil Procedure to entertain a suit by a landlord against a tenant for recovery of possession of building in respect of which a suit or application is filed on the grounds provided under this Act. From bare reading of the aforesaid provision it is clear that the suit is filed in a Court under the provision of the Code of Civil Procedure. In the aforesaid case of Chhotelal Pyarelal (supra) it appears that the eviction suit was filed before the Rent Controller and not before the Civil Court and in that context it was held that the Code of Civil Procedure does not apply to the proceeding under the Rent Control Act. The observation made by the learned single Judge in the aforesaid unreported judgment that the provision of the Code of Civil Procedure does not apply to the proceeding under the Act, in my opinion, does not state the correct statement of law as the provision of the Code of Civil Procedure is applicable to the eviction suits except where its application is specifically barred under the provision of the Act as in the case of trial of the suits of eviction on the ground of personal necessity and expiry of the terms of lease with regard to which a special procedure has been provided under Section 14 of the Act. The provisions of the Civil Procedure Code with regard to addition of parties, joinder of causes of action or other matters whose application is not barred are applicable during the trial of the suit under the Act.
13. Order II, Rule 3 of the Code of Civil Procedure provides, inter alia, that the plaintiff may unite in the same suit several cause of action against the same defendant or the same defendants jointly. In the present ease, from the matetials on record it is clear that the different protions of the suit premises were let out to the defendants at different times on rent at the rate fixed at the time of letting out the aforesaid premises. In view of such evidence, there is no difficulty in holding that the three different tenancies were created in favour of the defendants in the present case and the submission made on behalf of the opposite party that though premises were let out on three different times only one tenancy was created is not correct. Thus, from the material on the record, it is established that the three different tenancies were created by the plaintiff in favour of the defendants and the same gave rise to three different causes of action against the defendants. However, Order II, Rule 3 is attracted in the present case in asmuch as plaintiff is one in all the three cases and the causes of action are the same against the defendants jointly. Joint interest regarding the main question raised by litigant is a condition precedent for the joinder of several causes of action against several defendants. In my opinion in this case a single suit for the aforesaid three different causes of action was maintainable. Even assuming that single suit was not permissible in law with regard to different causes of action once the court has rendered the Judgement after the trial of the case on merits, the judgment should not be reversed on the technical ground unless it has resulted in the failure of justice. In the present case, nothing has been brought to show that there was failure of justice because of trial of one suit for three causes of actions.
14. Question No. 2.--Learned Counsel in support of his submission that plaintiff did not require the premises reasonably and in good faith for running the cloth business for one of his sons, has contended that son of the plaintiff Deepak Kumar Daruka is not the landlord witnin the meaning of the Act. He further contended that even if he is treated as landlord under the Act his requirement of the builiing is not reasonable and in good faith as he is not an unemployed person as he is carrying on business of money lending and earning interest. He further contended that the plaintiff has got several houses in partition in the town of Darbhanga and his requirement of the suit premises is not bona fide one. He also submitted that the claim of the plaintiff for eviction of the petitioners in a mala fide one as the suit has been filed only when the defiendents did not agree to enhance the rent of the premises. He also contended that the plaintiff has already filed a suit against Punjab National Bank for its eviction from one of his houses situated near the suit premises and the same would meet the requirement of the son of the plaintiff and the present suit for eviction of the petitioners is not bona fide one. learned Counsel for the opposite party controverted all the submissions made on behalf of the petitioners and asserted that none of the submission are tenable in law in the present case inasmuch as the trial court has considered all the evidence on the record and has adopted a correct legal approach in appreciating the evidence on the point of reasonable and bona fide requirement of the plaintiff of the suit premises for starting a cloth business for one of his sons.
15. The trial court after considering the entire evidence on the record has come to the conclusion that the plaintiff and his three sons are members of the joint Hindu family and the suit premises belong to them. This finding of fact does not suffer from any legal infirmity and learned Counsel for the petitoners did not point out any legal defect in the said finding. Thus, the suit premises belong to the plaintiff and his throe sons. The question for determination is as to whether the son of the plaintiff, namely, Deepak Kumar Duruka is a landlord or not of the suit premises within the meaning of the Act. Section 11 (1) (c) of the Act provides, inter alia, that the tenant is liable to eviction when the building is reasonable and in good faith required by the landlord for his own occupation or for any occupation of any person for whose benefit the building is held by the landlord. Landlord has been defined under clause (f) of Section 2 of the Act and the said definition includes inter alia, the person who for the time being is receiving or is entitled to receive the rent of a building whether on his own account or on behalf of another. The plaintiff and his three sons are members of coparcenary of undivided Hindu joint family. There is unity of ownership amongst them. From the said definition it is apparent that a person who is entitled to receive the rent of the building on his account is also landlord. Deepak Kumar Daruka being a member of the Hindu coparcenary is entitled to receive rent of the building on his behalf and as such he is one of the landlords within the meaning of the Act and the suit for eviction against defendants petitioners for the suit premises for the reasonable and bona fide requirement of Deepak Kumar Daruka is maintainable in law. The plaintiff being the karta of the family can maintain a suit for eviction for one of his sons who, as stated above, is landlord within the meaning of the Act.
16. For a decree for eviction under Section 11 (1) (c) of the Act, the landlord is required to prove that the building is required reasonably and in good faith for his own occupation or the occupation of any person for whose benefit building is held by landlord. It is well settled that the landlord has to prove an element of need as opposed to a mere desire or wish. However, that does not mean that the landlord has to prove and establish the absolute and dire necessity for the occupation of the property in dispute for his own or his family members. The requirement should be rational and according to the dictates of reason and not excessive or immoderate. In the present case, materials on the record show that the son of the plaintiff has no permanent business and he is only earning interest by lending money to his father and Ors. as well as by depositing money in the Banks. The question is whether in view of such earnings by the sons of the plaintiff can it be said that the requirement of the suit premises for the son of the plaintiff is not reasonable and bonafide one. Law does not require that before a claim for eviction on the grounds of personal necessity can be allowed for starting a business the landlord must be an unemployed one. Even if the landlord is employed one he can start new business or expand his existing business and the law does not prevent him from doing so. The only thing that has to be seen is as to whether the requirement of the landlord is reasonable and bonafide one. If it is proved from the material on the record that the requirement is reasonable and bonafide one in that case if the landlord has some other business the same will not be a ground of non-suiting the landlord. In the present case, the plaintiff and his sons Deepak Kumar Daruka both have stated Deepak Kumar Daruka has no permanent business for earning his livelihood for want of suitable place for starting a cloth business. They have also stated that Deepak Kumar Daruka has obtained a training in cloth business. The evidence on the record which has been accepted by the couit below further shows that the suit premises is suitable for running a cloth business. In view of the aforesaid evidence on the record the trial court rightly came to the conclusion that requirement of the plaintiff is reasonable and bonafide.
17. The submission made on behalf of the petitioners that a large number of houses were allotted to the plaintiff and his sons in partition and his sons can start business in other house is devoid of any substance for the simple reason that no evidence was led on behalf of the defendants to show that other house were suitable for starting and the trial court rightly rejected the case of the defendants on the said point. Similarly, the submission on behalf of the petitioners that the present suit has been filed by the plaintiff with a mala fide intention when the defendants refused to enhance the rent to Rs. 1500 as demanded by the plaintiff is also without any substance. The said assertion has been denied by the plaintiff and except the oral statement of the defendants no documentary evidence has been produced to support the aforesaid assertion and the trial court, in my opinion, has rightly rejected the aforesaid plea raised on behalf of the petitioners.
18. The other submission made on behalf of the petitioners that the requirement of the landlord is not bona fide one inasmuch as the plaintiff has already filed a suit against the Punjab National Bank for eviction from the building which is near the suit land and if that is vacated that would meet the requirement of the plaintiff has also to be rejected for the simple reason that from the materials on the record it appears that the plaintiff is carying on his own separate business in the name and style of Navin Vastralaya in a rented house and he has filed the said suit against Punjab National Bank for eviction from the building in question for shifting the aforesaid shop. It further appears from the record that the aforesaid suit filed by the plaintiff against Punjab National Bank was dismissed and against that an appeal is pending before the appellate court. Even if a decree is passed in favour of the plaintiff for vacation of the aforesaid premises that would not meet requirement of the son of the plaintiff for starting his own business and as such it cannot be said that filing of the present suit by the plaintiff is mala fide one. Thus, after considering all the submissions made on behalf of the petitioners, I have no difficulty in holding that the suit premises is required reasonaly and in good faith by the plaintiff for opening cloth shop for one of his sons, namely, Deepak Kumar Daruka who is a landlord within the meaning of the Act.
19. Question No. (iii)--Learned Counsel for the petitioners submitted that the finding on the question of partial eviction is vitiated in law inasmuch as the court below has not considered the question according to the proviso to Section 11 (1) (c) of the Act and it has also committed an error of record in saying that the tenant did not agree for partial eviction. In this connection, he drew my attention to paragraph 2 of the second affidavit filed on 6-4-91 wherein it is stated that the observation by the court below that there is no willingness on the part of the tenant for partial eviction is wrong statement and is against the record without any material fact. The defendants were never asked a question that they will be satisfied by partial eviction. He further pointed out that the suit premises consist of two big rooms on the ground floor (presently amalgamated) and one room on the first floor and the court below did not consider the question as to whether the reasonable requirement of the plaintiff will be satisfied by eviction from the whole premises or a part thereof. learned Counsel appearing for the opposite party contended that from perusal of paragraphs 22 and 23 of the judgment of the court below it is clear that the defendants-tenants did not raise the question of partial eviction in the court below; on the other hand, they did not agree for partial eviction and in that view of the matter they cannot be allowed to raise this point in this Court He further contended that the statement of fact made in the judgment of the court below that defendants did not agree for partial eviction has to be accepted as correct one and the petitioners cannot be allowed to challenge the aforesaid statement as not correct one, then the remedy available to the defendants was either to bring the aforesaid mistake to the notice of the court by filing a petition or they should have filed a certificate of the advocate in this Court who had appeared for them in tht court below to the effect that no such statement was made on behalf of the defendants and the court below wrongly recorded that the defendants did not agree for partial eviction. In support of the aforesaid submission he relied upon two decisions of the Supreme Court in the case of State of Maharashtra v. Ramesh Kumar Sobharaj Jain and Ors. and in the case of Bhagwati Prasad v. Delhi State of Mineral Development Corporation, . In the former case it was held that if the statement of fact contained in the judgment is not correct then the affidavit of the counsel, who was present at the hearing in the court concerned, should be filed and in the latter case it was held that if the statement of facts recorded by a Court or quasi-judicial Tribunal in its proceedings as regards the matters which transpired during hearing before it would not be permitted to be assailed as incorrect unless steps are taken before the same forum. It may be open to a party to bring such statement to the notice of the Court/Tribunal and to have it deleted or amended.
20. learned Counsel appearing for the petitioners did not dispute the aforesaid propositions of law but contended that the said decisions have no application in the present case for the simple reason that in this case from the perusal of the aforesaid paragraphs of the judgment of the court below it is apparent that no statement of fact that the defendant did not agree for partial eviction had been made on behalf of the defendants, on the other hand, the Court below without any material on the record wrongly inferred that the defendants did not agree for partial eviction. I find force in the submission made on behalf of the petitioners. From the perusal of the aforesaid two paragraphs it is not clear as to whether any such statement that the defendants did not agree for partial eviction was either made by the defendants or by his counsel nor it is clear that the court enquired from the defendants on the said point. In such a situation, in my opinion, it cannot be said that the defendanis did not agree for partial eviction. The trial court on the basis of a wrong assumption and without any material on the record held that the defendants did not agree for partial eviction and on that basis wrongly decided the aforesaid question.
21. The provision to Section 11(1)(c) mandates the court to consider the question of partial eviction even if the plea is not raised by the defendants. It is a duty cast upon the court. The matter is no longer res-integra. While dealing with the similar provision under Jammu and Kashmir House and Shops Rent Control Act, 1966, the Supreme Court in case of Rahman Jeo Wangnoo v. Ramchandra and Ors. , observed that "the proviso aforesaid mandates the court to consider whether partial eviction as contemplated therein should be ordered or the entire holding should be directed to be evicted". It was further observed "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 or the court to act in compliance with the mandate of the statute. The scope of the proviso to Section 12(1)(c) under Bihar Buildings (Lease, Rent & Eviction) Control Act, 1977, which is similar to the proviso of Section 11(1)(c) of the Act, was considered by the Supreme Court in the case of Nasirul Haque v, Jitendra Nath Dey, (2); wherein, it was observed as follows :
In determing the question of partial eviction the proviso to Section 12(1)(c) of the Bihar Buildings (Lease. Rent & Eviction) Control Act of 1977, in terms enjoins thae 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 pavt only of the premises. The court has therefore in the first instance to determine the event 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. The question, thus, has to be determined by giving full effect to the concept of reasonable extent of the requirement from the perspective of 'substantial' satisfaction of such requirement as considered to be reasonable objectively.
Thus, it is clear that while considering the question of partial eviction under the proviso, the court has first to consider reasonable requirement of the landlord and then to consider as to whether the reasonable requirement will be substantially satisfied by evicting the tenant only from part of the premises. This question has to be decided on the basis of the materials on the record and not only on the basis of the ipse dixit of the landlord or his desire to occupy much area as he wants. The court below in the present case, as stated above, has, not considered the question of partial eviction according to the proviso but has decided the question on the basis of the wrong assumption, as mentioned above and in that view of the matter the finding of the court below on the point of partial eviction is not in accordance with law and is fit to set aside.
22. Thus after consideration of the materials on the record it is held that the finding of the court below that the plaintiff requires the suit premises reasonably and in good faith for starting a cloth shop for his son does not suffer from any legal infirmity and the same is upheld, but the finding of the court below on the point of partial eviction is vitiated in law and the same is accordingly, set aside.
23. In the result, this application is allowed in part and the matter is remitted back to the court below to consider the question of partial eviction according to the proviso of Section 11(1)(c) of the Act in the light of the observations made above. The court below will afford an opportunity to the parties to adduce evidence on the aforesaid point. As the suit is for eviction on the ground of personal necessity, the case requires utmost expedition in its disposal and accordingly, I direct the court below to decide the aforesaid point within a period of four months from the date of receipt of the record. It is made clear that if the defendants create any hindrence in the disposal of the suit within the aforesaid time, than the court below will dispose of the suit within the aforesaid time on the basis of the materials brought on the record by the plaintiff. In the facts and circumstances of the case there shall be no order as to costs.
24. I agree.