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Mrs. Veena Rani And Others v. Mrs. Ishrati Amanullah And Another
Factual and Procedural Background
The plaintiffs (owners) sued the defendants (tenants) seeking eviction from the premises described in Schedule 'A' of the plaint and recovery of arrears of rent. The defendants had been inducted as tenants in 1973 at a monthly rent of Rs. 950. The parties had agreed that rent was payable in advance in the first week of every month according to the English calendar.
Plaintiffs alleged that defendant 1 did not pay rent in the first week of May 1978 but sent a cheque dated 15-5-1978 which was dishonoured; plaintiffs further alleged defaults in rent from June 1978 to March 1979 and asserted personal necessity for the house. Defendants admitted the dishonoured cheque and non-payment of March 1979 rent, but said they sent cheques for June–August 1978 (not encashed) and money orders for September 1978–February 1979 which the plaintiffs refused; defendants contended there was no default for two consecutive months and that plaintiffs had sufficient accommodation elsewhere.
The Subordinate Judge found default for May 1978; held June–August 1978 were validly tendered by cheque (not encashed); held remittances by money order for Sept 1978–Feb 1979 were not valid tenders because there was no proved refusal by the plaintiffs; accepted plaintiffs' claim of personal necessity; and decreed the suit for eviction and arrears. The defendants appealed.
Legal Issues Presented
- Whether remittance of rent by postal money order can constitute a valid tender in the absence of a proved refusal by the landlord to accept rent (interpretation of S.16(1) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1977 and its predecessor provision).
- Whether the statutory ground of eviction for arrears under S.12(1)(d) requires default in payment of two consecutive months' rent, or whether two months' rent in arrear need not be consecutive.
- Whether service of a notice under S.106 of the Transfer of Property Act converts a contractual tenant into a statutory tenant in a manner that changes the time by which rent must be paid (i.e., whether the earlier agreement for payment in the first week ceases to operate).
- Whether the plaintiffs have established personal necessity for the premises under S.12(1)(c), and whether partial eviction (as opposed to whole-house eviction) should have been considered in light of the proviso to cl. (c) of S.12(1).
Arguments of the Parties
Appellant (Defendants) — Main Arguments
- Sending rent by money order is a recognised mode of payment and does not depend on prior refusal by the landlord; a tenant may choose payment by hand, by cheque/draft, or by money order even absent refusal.
- The defaults relied on by the plaintiffs are not for two consecutive months, and therefore S.12(1)(d) (as relied upon by plaintiffs) should not be attracted.
- Service of a notice under S.106 Transfer of Property Act in Sept. 1978 terminated the contractual arrangement that required advance payment in the first week, converting defendants into statutory tenants who could pay by the last day of the month next following.
- The court below should have considered whether partial eviction (only part of the premises) would satisfy plaintiffs' personal necessity, rather than ordering whole-house eviction.
Respondent (Plaintiffs) — Main Positions
- Tenants failed to pay rent in the first week of May 1978; cheque dated 15-5-1978 was dishonoured; rent for March 1979 was unpaid.
- Plaintiffs required the house for their personal use and lacked sufficient accommodation in Yusuf Buildings where they were living by courtesy.
- Plaintiffs implicitly refused the money orders for Sept 1978–Feb 1979 (as asserted in the plaint), and the trial court treated those remittances as not valid tenders in law.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Inter State Transport Agency v. Habiba Khatoon, 1982 BBCJ 252 | Held that before remittance by money-order is held to be a valid tender, refusal by the landlord must be established (a construction applied by a learned Judge of the Court). | Cited as an earlier conflicting view; the court noted this decision but declined to accept the narrow proposition that a money-order is valid only after proved refusal. |
| Mahabir Prasad v. Bibhuti Mohan, AIR 1973 Pat 83 | Interpreting S.13(1) of the earlier Act (replaced by S.16(1)), it held that remittance by postal money order within the prescribed time makes payment valid and that prior tender before remitting by money order is not a condition precedent. | The court relied on this decision to hold that S.16(1) does not restrict remittance by money order to situations where the landlord has refused to accept rent; it supported the position that money orders may be a valid initial mode of payment. |
| Raj Kumar Prasad v. Uchit Narain Singh, AIR 1980 Pat 242 (Full Bench) | Approved Mahabir Prasad and held that rent may be tendered initially by postal money order; rejected the interpretation that money order is only available after a landlord's refusal. | Applied as authoritative support for the view that a postal money order may constitute valid tender even where there has been no proved refusal by the landlord. |
| Madholal v. Madan Mohan, AIR 1975 Pat 154 | Interpreted an identical clause in the earlier Act and held that defaults in two months' rent need not be consecutive to attract the eviction provision. | The court accepted and applied this principle to hold that defaults in non-consecutive months (May 1978 and March 1979) could satisfy S.12(1)(d). |
| V. Dhanapal Chettiar v. Yesodai Ammal, AIR 1979 SC 1745 | Explained effect of notice under S.106 Transfer of Property Act: a tenant remains a tenant under State Rent Acts despite contractual tenancy being determined; rights and liabilities (including payment of rent) continue. | Relied upon to reject the defendants' submission that the S.106 notice altered the obligation to pay in the first week; the court held the contractual obligation to pay in advance continued for the purposes of eviction law. |
| Lachmeshwar Prasad v. Keshwar Lal, AIR 1941 FC 5 | Appellate courts have power to consider changes in fact or law that supervened since the judgment under review. | Cited to justify taking note of a change of circumstance (transfer of plaintiff No.2 to Patna) occurring during pendency of the appeal. |
| Pasupuleti Venkateswarlu v. Motor & General Traders, AIR 1975 SC 409 | Reiterated appellate courts' power to consider supervening changes in fact or law when deciding appeals. | Referenced to support the same approach to changed facts during the appeal. |
| Mst. Bega Begum v. Abdul Ahad Khan, AIR 1979 SC 272 | On "reasonable requirements" for personal necessity: need must be real (not mere desire), but the court should not set an impractically high bar for establishing necessity. | Used to guide the assessment of plaintiffs' personal necessity; supported the trial court's conclusion that plaintiffs reasonably required the house for personal use. |
| Phiroze Bamanji Desai v. Chandrakant M. Patel, AIR 1974 SC 1059 | Similar principle on interpreting "reasonable requirements" for personal necessity. | Cited in support of the court's approach to personal necessity and reasonableness. |
| Rahman Jeo Wangnoo v. Ram Chand, AIR 1978 SC 413 | Addressed the proviso to cl. (c) of S.12(1) concerning partial eviction (authority relied on by appellants). | Cited by the court to note the legal principle, but the court observed the point was not raised at trial and no evidence was led, so it could not be decided on appeal. |
| Tip Top v. Smt. Indramani Devi, AIR 1982 Pat 190 | Held that once a landlord establishes personal necessity, the law gives him a choice of the most suitable accommodation for that purpose. | Relied on to support the view that plaintiffs could be granted the whole house where their family circumstances and accommodation needs made that appropriate. |
Court's Reasoning and Analysis
The court conducted a statutory and factual analysis in discrete steps:
- Construction of S.16(1) (Bihar Buildings Act) and its predecessor provision: The court held S.16(1) does not impose a precondition that the landlord must have refused tender before a tenant may remit rent by postal money order. Instead, S.16(1) prescribes a mode of valid tender where a landlord refuses to accept rent but does not exclude the use of money order as an initial method of payment. The court relied on Mahabir Prasad (AIR 1973 Pat 83) and the Full Bench decision in Raj Kumar Prasad (AIR 1980 Pat 242) to support that construction, while noting an earlier contrary view in Inter State Transport Agency v. Habiba Khatoon.
- Application to facts about money orders and cheques: The trial court had found that cheques for June–August 1978 were sent but not encashed. The appellate court inferred that the defendants had apprehended that the plaintiffs might refuse to accept rent (given the cheques were not presented), and therefore remitting rent by postal money order for Sept. 1978–Feb. 1979 should not be treated as a legal default. On that basis the court concluded those months were not defaults.
- Interpretation of S.12(1)(d) (arrears for two months): The court held that the statutory requirement of arrears of "two months' rent" does not require the two months to be consecutive. The court followed Madholal v. Madan Mohan (AIR 1975 Pat 154) and reasoning that requiring consecutiveness would produce an anomalous result enabling a tenant to default in alternate months with impunity. Applying the principle to the facts, the court observed admitted defaults in May 1978 and March 1979 (the contract required advance payment in first week) and concluded S.12(1)(d) was attracted.
- Effect of notice under S.106 Transfer of Property Act: The defendants argued that the S.106 notice turned them into statutory tenants and thereby altered the time-frame for payment of rent. The court rejected that argument, relying on V. Dhanapal Chettiar v. Yesodai Ammal (AIR 1979 SC 1745), which explains that even after valid notice a tenant continues to be a tenant for purposes of the Rent Acts and remains under liabilities such as payment of rent.
- Personal necessity (S.12(1)(c)): The court reviewed the evidence — plaintiffs living by courtesy in Yusuf Buildings, medical history of plaintiff No.1 (major operation), family size (5 daughters and 3 sons), and testimony of witnesses including PW21 (a former judge) describing the accommodation as "suffocating". Applying the principles in Mst. Bega Begum and Phiroze Bamanji Desai, the court found the plaintiffs' requirement to be reasonable and in good faith and upheld the trial court's finding of personal necessity.
- Partial eviction point: The court noted the defendants' submission (based on Rahman Jeo Wangnoo) that partial eviction should have been considered; but because the point was not raised at trial and no evidence was led, the appellate court declined to decide that issue. It observed the material on record (house layout and large family) supported whole-house occupation by the plaintiffs and that partial eviction would require evidence demonstrating the parties could conveniently occupy the same building as two units.
- Miscellaneous: The defendants did not challenge the decree for arrears. Considering all the foregoing statutory constructions, factual findings, and precedent, the court affirmed the trial court's ultimate disposition.
Holding and Implications
Holding: APPEAL DISMISSED. The judgment and decree of the trial court for eviction of the defendants and realization of arrears of rent were upheld. The court ordered that there would be no order as to costs.
Direct consequences for the parties:
- The decree for eviction and recovery of arrears in favour of the plaintiffs stands affirmed.
- The defendants' appeal challenging the eviction and the arrears was dismissed; the court noted defendants did not contest the decree for arrears in the hearing of the appeal.
- No costs were awarded against either party ("no order as to costs").
Broader legal implications: The opinion does not announce a novel statutory principle; it applies and follows existing precedent (in particular the decisions in Mahabir Prasad and the Full Bench in Raj Kumar Prasad) to interpret S.16(1) to permit remittance by postal money order as a valid mode of payment even absent an established refusal by the landlord, and it reiterates that two months' arrears need not be consecutive for S.12(1)(d) to apply.
Nagendra Prasad Singh, J.:—This appeal has been filed on behalf of the defendants for setting aside the decree for their eviction from the premises detailed in Schedule ‘A’ of the plaint and for arrears of rent.
2. The suit in question had been filed on behalf of the plaintiffs, who are owners of the house in question. It is not in dispute that the defendants were inducted as tenants in the said house in the year 1973 at a monthly rental of Rs. 950/-. According to the plaintiffs, it has been agreed between the plaintiffs and the defendants that the rent shall be payable in advance in the first week of every month according to the English Calendar. It is the case of the plaintiffs that defendant 1 did not pay the rent in the first week of May, 1978, but sent a cheque dated 15-5-1978 in favour of plaintiff 1. When the said cheque was presented to the Bank, it was dishonoured. It has been alleged in the plaint that the defendants also defaulted payment of rent from June, 1978 to March, 1979. It is also the case of the plaintiffs that they require the house in question for their personal use.
3. The suit was contested by the defendants. They did not dispute that cheque dt. 15-5-1978 had been dishonoured. It is also not in dispute that rent for the month of March, 1979 has not been paid. According to them, rent for the months of June, July and August, 1978 was sent to plaintiff 1 by cheques, but when it was discovered that the cheques were not being presented for encashment, the defendants sent the rents for the months of September, October, November, December, 1978 and January and February, 1979 by money order which were refused by the plaintiffs. As such, according to the defendants, there has been no default in payment of rent for two consecutive months giving cause of action to the plaintiffs for filing the suit in question. About personal necessity, it has been asserted on their behalf that the plaintiffs have sufficient accommodation in Yusuf Buildings where they are living and the plea for personal necessity is a mere pretence.
4. Learned Sub-ordinate Judge, on a consideration of the materials, came to the conclusion that there has been default in payment or rent for the month of May, 1978. About the months of June to August, 1978 he was of the opinion that there was a valid tender of rent by the defendants to the plaintiffs by sending cheques which were not encashed by the plaintiffs, and, as such, there was no default for those months. Regarding the months of Sept. 1978 to Feb. 1979 he came to the conclusion that as there was no refusal by the plaintiffs it was not open to the defendants to send rent by money order; the result whereof will be that in eye of law there was no valid tender of rents for the months of September, 1978 to February, 1979 which amounted to default on the part of the defendants in payment of rent for those months. On the question of personal necessity, learned Subordinate Judge accepted the case of the plaintiffs that there was lack of space in the Yusuf Buildings where plaintiffs were staying and they require the house in question for their personal use. On the aforesaid findings, as already stated above, the suit for eviction and realisation of arrears of rent was decreed.
5. On behalf of the defendant-appellants, learned counsel challenged the finding of the trial court regarding the default in payment of rent for the months of Sept. 1978 to Feb 1979 saying that the learned Sub-ordinate Judge took an erroneous view of law that a tenant can send rent by money order only when the is refusal by the landlord. According to the learned counsel, sending rent by money order is one of the modes of payment of rent and even in normal course it is open to the tenant to adopt one of the three methods for payment of rent, i.e, (i) payment by hand to hand, (ii) payment by cheque or draft, and (iii) payment by money order. In other words, even in cases where there is no refusal on the part of the landlord to accept rent, a tenant may prefer to send rent by money order.
6. Section 16(1) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1977 (hereinafter to be referred to as ‘the Act’) is follows:—
“When a landlord refuses to accept any rent lawfully payable to him by a tenant respect of any building, the tenant may remit such rent, and continue to remit any subsequent rent which becomes due in respect of such building, by postal money-order to the landlord”
On the basis of the aforesaid sub-sec. (1) of S. 16 can it be said that a tenant is entitled to end rent by money-order only when there is a refusal by the landlord and unless such refusal is proved the remittance by money-order is not a valid tender in eye of law? In my opinion, S.16 never purports to prescribe a condition which must be fulfilled before a tenant can send rent by money-order. Rather, it prescribes a mode of valid tender in cases where landlord refuses to accept rent. In my view, it is open to the tenant to send rent by money-order although there has been no refusal on the part of the landlord in accepting them. If it is held that in normal course a tenant cannot send rent by money-order so as to amount to be a valid payment of rent it will lead to an anomalous situation in cases where the landlord lives outside the place where the house in question is situated. A learned Judge of this Court in the case of Inter State Transport Agency v. Habiba Khatoon 1982 BBCJ 252 has held that before remittance by money-order is held to be a valid tender it must be established that there was refusal on the part of the landlord. However, in the case of Mahabir Prasad v. Bibhuti Mohan, AIR 1973 Pat 83 Shambhu Prasad Singh, J. while construing S. 13(1) of 1947 Act which has been replaced by S. 16(1) in the present Act, observed as follows:—
“In construing a Statute one has to look to its substance and the real intention behind the enactment. The substance of S. 13(1) and the real intention behind it, in my opinion, are that once the rent is remitted by postal money order within the time mentioned in S. 11(i)(d) of the Act, the landlord cannot claim eviction of the tenant on the ground of default in payment of rent. Therefore, in my opinion, a tender by the tenant to the landlord before emitting rent by postal money order is not a condition precedent to such remittance. There may be cases where the landlord is living at a distant place and rent can be sent to him only by remittance by postal money order.”
This view was approved by the Full Bench in the case of Raj Kumar Prasad… v. Uchit Narain Singh…. AIR 1980 Pat 242. While referring to the case of Mahabir Prasad (AIR 1973 Pat 83) (supra) it was observed as follows:—
“In the case of Mahabir Parsad (Supra) it has been held that rent could initially be tendered through postal money order and it cannot be contended that only if the landlord refuses to accept the rent hand to hand, the tenant may remit it by postal money order…… I think of the interpretation of S. 13(1) of the Rent Act, the decision lays down the correct position in law.”
It was further observed:—
“When S. 13(1) speaks of the remittance of rent by postal money order to the landlord on refusal on the part of the landlord to accept such rent, the law clearly envisages two possibilities. If the tenant apprehends that for some ulterior motive the landlord could refuse to accept rent for the purpose of making the tenant a defaulter within the meaning of the Rent Act, he may well remit such rent by postal money order by the last day of the month next following. That would make the remittance a valid payment within the meaning of S. 11(1)(d)……and that justifies the Bench decision in the case of Mahabir Prasad (supra).”
In the instant case, on the findings recorded by the trial court that the rent for the months of June, July and August 1978 were sent by cheques, which were not encashed by the plaintiffs, I am inclined to hold that the defendants had apprehended that plaintiffs had refused to accept rent. In that view of the matter, when the rent was sent by money order for the months of Sept. 1978 to Feb. 1979 it shall not be deemed that the defendants had defaulted payment of rent for those months.
7. So far as default in payment of rent for the months of May, 1978 and March, 1978 is concerned, learned counsel appearing for the appellants submitted that as the default is not in respect of two consecutive months, S. 12(1)(d) shall not be attracted. Section 12(1)(d) is as follows:—
“Where the amount of two months' rent lawfully payable by the tenant and due from him is in arrears by not having been paid within the time fixed by contract or, in the absence of such contract, by the last day of the month, next following that for which the rent is payable or by not having been validly remitted or deposited in accordance with S. 16;”
There is nothing in cl. (d) aforesaid which should be read to mean that the default in payment of rent must be for two consecutive months. Considering an identical clause (d) of S. 11(1) of 1947 Act, N.L Unt Walia, C.J (as he then was) in the case of Madholal v. Madan Mohan AIR 1975 Pat 154 pointed out:—
“If the rent for one month is not paid within the time fixed by the contract or, in absence of such contract, by the last day of the month next following that for which the rent is payable, then the rent for one month is in arrear. And if rent for another month similarly falls in arrear, then the ground for eviction is made out under S. 11(i)(d) of the Act. For attracting the said provision of law there need not necessarily be default in payment of two consecutive months' rent. If that were so, then the latter phrase in clause (d) will not have full play and non-payment of rent for one month by the last day of the month next following cannot be said to be in arrear.”
If the contention that the default must be in respect of two consecutive months is accepted, then a tenant can make default in payment of rent for alternative months, as such six months in a year still he shall not be held to be a defaulter within the meaning of S. 12(1)(d) so as to be liable for eviction. I am in respectful agreement with the view expressed in the aforesaid decision that two months' default need not be of consecutive months. In the instant case, the plaintiffs have pleaded in the plaint that it had been agreed that the rent was to be paid by the first week of the month in question in advance. This averment has not been challenged in the written statement. As such, when the suit was filed on 18-4-1979, there had been a default not only of the month of May, 1978 but also of the month of March, 1979 because the rent of March, 1979 ought to have been paid, according to the agreement, by the first week of March, 1979. However, it is an admitted position that the rent for the month of March, 1979 was never paid.
8. Mr. Chatterjee, learned counsel for the appellants, submitted that as in the instant case in Sept. 1978 a notice under S. 106 of the Transfer of Property Act had been served by the plaintiffs on the defendants, the agreement regarding payment of rent in advance by the first week of the month in question came to an end, as the defendants became statutory tenants. It was pointed out that the defendants could have paid rent in terms of S. 12(1)(d) by the last day of the month next following, i.e, by 30th April, 1979. Apart from the fact that rent was neither paid nor tendered for the month of March, 1979 even by 30-4-1979, the aforesaid assumption in law is not correct. It was pointed out by the Supreme Court in the case of V. Dhanapal Chettiar v. Yesodai Ammal, AIR 1979 SC 1745 as to what is the effect of notice under S. 106 of the Transfer of Property Act:—
“Under the extended definition of the word ‘tenant’ under the various State Rent Acts, the tenant continues to be a tenant even though the contractual tenancy has been determined by giving of a valid notice under S. 106 of the Transfer of Property Act. In many cases the distinction between a contractual tenant and a statutory tenant was alluded to for the purpose of elucidating some particular aspects which cropped up in a particular case. That led to the criticism of that expression in some of the decisions. Without detaining ourselves on this aspect of the matter by any elaborate discussion, in our opinion, it will suffice to say that the various State Rent Control Acts make a serious encroachment in the field of freedom of contract. It does not permit the landlord to snap his relationship with the tenant merely by his act of serving a notice to quit on him. In spite of the notice, the law says that he continues to be a tenant and he does so enjoying all the rights of a lessee and is at the same time deemed to be under all the liabilities such as payment of rent etc. in accordance with the law.”
As such, there is no escape from the conclusion that the defendants have defaulted in payment of two months' rent, i.e for the months of May, 1978 and March, 1979 lawfully payable by them and shall be deemed to be defaulters within the meaning of S. 12(1)(d) of the Act.
9. Coming to the question of personal necessity, evidence has been adduced on behalf of the plaintiffs that they are living on the second floor of Yusuf Buildings belonging to the uncle of plaintiff 1, and, as such, they are living in that house by courtsey. Evidence has also been led on behalf of the plaintiffs that plaintiff No. 1 has undergone operations and because of her ill health it is very inconvenient for her to live on the second floor of the house of her relation. On the question of lack of space in the Yusuf Buildings, the size of the family of the plaintiffs and the condition of health of plaintiff 1 P.Ws 5, 10, 15, 19, 20 and 21 have been examined by the plaintiffs. P.W 21 is Shri Syed Wasiuddin, who was formerly a judge of the Patna High Court. He has stated that he knows the plaintiffs who have fairly a large family consisting of 5 daughers and 3 sons. He has stated that one of the sons of the plaintiffs is married. He has visited the plaintiffs and his view is that the available space for the family in the Yusuf Buildings is suffocating. He has also said that plaintiff 1 does not keep good health and she had undergone a major operation. To the same effect, there is evidence of other witnesses.
10. On behalf of the defendants it was pointed out that plaintiff No. 2 being a Chief Engineer was posted during the pendency of the suit at Darbhanga, as such there was no question of requiring the house for personal use. But the fact that plaintiff 1, who is the wife of plaintiff No. 2, is living with her family members in a portion of the Yusuf Buildings which belongs to her uncle, has not been disputed. During the hearing of the appeal an affidavit has been filed that even plaintiff 2 has since been transferred to Patna and is also staying in the same Yusuf Buildings due to lack of any other accommodation. Although whether plaintiff No. 2 is posted at Patna or at Darbhanga is not of much significance, once its admitted that plaintiff No. 2 with her sons, daughters and daughter-in-law is living at Patna, still the transfer of plaintiff No. 2 to Patna can be taken note of by this Court. It was observed in the case of Lachmeshwar Prasad v. Keshwar Lal AIR 1941 FC 5:—
“We have frequently held that in the exercise of our appellate jurisdiction we have power, not only to correct in the judgment under review but to make such disposition of the case as justice requires. And in determining what justice does require, the court is bound to consider any change, either in fact or in law, which has supervened since the judgment was entered”
The same view was reiterated by the Supreme Court in the case of Pasupuleti Venkateswarlu v. Motor & General Traders AIR 1975 SC 409.
11. While judging the question of personal necessity no fixed criteria can be applied, Section 12(1)(c) itself says:—
“Where the building is reasonably and in good faith required by the landlord for his own occupation or for occupation of any person for whose benefit the building is held by the landlord.”
This cannot be interpreted to mean that the landlord must be in dire need of the house before a decree for eviction can be passed on the ground of personal necessity. In the case of Mst. Bega Begum v. Abdul Ahad Khan, AIR 1979 SC 272 it was observed that the words “reasonable requirements” postulate that there must be an element of need as opposed to a mere desire or wish, but it was pointed out:—
“that the connotation of the term ‘need’ or ‘requirement’ should not be artificially extended nor its language so unduly stretched or strained so as to make it impossible or extremely difficult for the landlord to get a decree for eviction. Such a course would defeat the very purpose of the Act which affords the facility of eviction of the tenant to the landlord on certain specified grounds.”
The same view was expressed in the case of Phiroze Bamanji Desai v. Chandrakant M. Patel AIR 1974 SC 1059. On basis of the materials on record it has been rightly held by the trial court that plaintiffs reasonably require the house in question for their personal use.
12. Lastly, it was submitted on behalf of the appellants that the court below should have considered whether the need of the plaintiffs is satisfied only by the partial eviction of the defendants from the house in question, in view of the proviso to Cl. (c) of S. 12(1). Reliance was placed on the judgment of the Supreme Court in the case of Rahman Jeo Wangnoo v. Ram Chand, AIR 1978 SC 413. This point was never urged before the trial court by the defendants, and, as such, no evidence has been adduced on behalf of the parties. It cannot be disputed that this issue can be decided only if parties are given opportunity to adduce evidence. However, P.W 15 has stated that the house has 4 living rooms besides drawing room and dining room on the ground floor and 2 rooms on the first floor. Witnesses, who have been examined on behalf of the plaintiffs, including P.W 21, have stated that the plaintiffs have a large family consisting of 5 daughters and 3 sons. In that situation, it cannot be held that the plaintiffs do not require the whole house for their personal use. It was held in the case of Tip Top v. Smt. Indramani Devi 1982 Bihar Bar Council Journal 433 : (AIR 1982 Pat 190):—
“Once a landlord establishes his personal necessity then the law gives him the choice of selection of the most suitable accommodation for that purpose which may suit him according to the facts of each case.”
It need not be pointed out that before a decree for eviction for part of the premises in question can be passed, the court on the materials must be satisfied that the landlord and tenant both can conveniently occupy the same house as two units, that power cannot be exercised in a manner as if the court has to partition the building in question between two co-sharers. As such, in my opinion, there is no scope for decreeing the suit for eviction for the part of the premises.
13. Learned counsel for the appellants did not challenge the decree for arrears of rent which have admittedly not been paid to the plaintiff respondents.
14. In the result, this appeal fails and it is dismissed, but in the circumstances of the case, there will be no order as to costs.
M.P Varma, J.:— I agree.
Appeal dismissed.
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