Rehman Jeo Wangnoo Vs. Ram Chand &
Ors  INSC 232 (7 December 1977)
CITATION: 1978 AIR 413 1978 SCR (2) 380 1978
SCC (3) 539
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.
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 fulfill the reasonable requirement of the
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
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
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;
Rehman Jeo Wangnoo v. Ram Chand & Ors.
Civil Second Appeal No. 46 of 1975, J & K dated 30-9-1975 reversed.
CIVIL 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
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 they 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. fulfill 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.