B.J. Divan, J.
1. The petitioner in this Civil revision application is the original defendant and the opponents are the original plaintiffs. Plaintiffs are the joint owners of a building situated at Ahmedabad and the defendant is their tenant on the ground-floor of that building. The plaintiffs are related as opponent No. 2 is the widow of the deceased brother of opponent No. 1 and hence are joint owners of this particular property. The two joint owners are residing on the upper floor of the house and the tenant is occupying the shop premises on the ground-floor. The tenant is a silversmith manufacturing, storing and selling silver ornaments in this shop which is situated in the front portion of the suit house, for about 14 years. On the first floor, there are three rooms and a loft, occupied by the landlords. The landlords filed a suit in the Court of Small Causes at Ahmedabad for evicting the tenant on the ground of reasonable and bona fide requirement of the landlords and also on the ground of arrears of rent and sub-letting. At the hearing of the suit, the grounds of sub-letting and arrears of rent were given up and the only ground which was pressed by the landlords was of reasonable and bona fide requirement, for their own use and occupation. The learned trial Judge in the Small Causes Court, Ahmedabad framed the necessary issues; he found that the plaintiffs* reasonable and bona fide requirement of the suit premises for residence was established. As required by Section 13(2) of the Bombay Rents, Hotel and Lodging House Rates ( Control) Act, 1947 (hereinafter referred to as 'the Act'), the learned Judge also framed an issue about the balance of hardship and on that issue he held that a decree for partial possession should be passed in favour of the landlord. He directed that the front portion of the shop should be kept in the possession of the tenant and the rear portion of the shop should go to the landlords and he also directed that a wall partitioning the two portions should be erected by the plaintiffs within six months of the decree and the tenant was directed to give all facilities for constructing the said wall. The learned trial Judge also fixed the rent to be paid by the tenant after the wall was erected and the possession of the rear portion of the suit premises was handed over to the landlords.
2. Against this judgment and decree, both the landlords and the tenant went in appeal and both the appeals were heard together by the learned Judge in the City Civil Court at Ahmedabad, as after the setting up of the City Civil Court at Ahmedabad the appeals against the judgments of the Small Causes Court, in connection with Rent Act matters were transferred to the City Civil Court. The learned Judge in the City Civil Court held that the plaintiffs had proved their reasonable and bona fide requirement for the suit premises and he further held that no case for interference in the decree passed by the lower Court was made out. He, therefore, dismissed both the appeals and directed each party to bear its own posts of the appeal. The present Civil Revision Application has been filed by the tenant against this judgment and decree of the learned Judge in the City Civil Court whereby he confirmed the judgment and decree of the trial Court.
3. It is well settled law that under the ordinary law of the land, whenever a landlord sues his tenant for eviction, the Court can only pass a decree for evicting the tenant fully from the premises rented to him or can refuse to pass decree for eviction but there cannot be a decree for partial eviction of a tenant under the ordinary law of the land. The reason behind this rule is obvious. When the relationship of landlord and tenant has been terminated either by efflux of time or by a notice to quit or in any manner contemplated by law, the tenant is not entitled to continue in possession of any part of the premises rented to him and if no legal defence is open to him, the Court is bound to hand over possession of the leased premises to the landlord in entirety and not partially. To this general principle of law, an exception has been engrafted by Section 13(2) of the Act. Section 13(2) provides that no decree for eviction shall be passed on the grounds specified in Clause (g) of Sub-section (1) if the Court is satisfied that, having regard to all the circumstances of the case, including the question whether other reasonable accommodation is available for the landlord or the tenant, greater hardship would be caused by passing the decree than by refusing to pass it and the second paragraph of that sub-section says that where the Court is satisfied that no hardship would be caused either to the tenant or to the landlord by passing the decree in respect of a part of the premises, the Court shall pass the decree in respect of such part only. Thus, a decree for partial eviction can be passed under second paragraph of Section 13(2) of the Act. Since this paragraph engrafts an exception to the general rule of law, it must be construed strictly and before a Court can pass a decree for partial eviction, the conditions laid down in that paragraph must be satisfied. Before any decree for partial eviction can be passed, the Court must satisfy itself that by passing such a decree, no hardship is going to be caused either to the landlord or to the tenant. Unless that satisfaction is reached, by the Court, the decree for partial possession cannot be passed. In the instant case, both the Courts below have come to the conclusion that the landlords have established their case of reasonable and bona fide requirement of the, suit premises at least so far as plaintiff No. 1 is concerned. Plaintiff No. 2 had not stepped into the witness box and the learned trial Judge held that as the plaintiff No. 2 had not stepped into the witness box, it cannot be said that she had established her reasonable and bona fide requirement. The learned Judge in the City Civil Court deferred from this view but he also held that the reasonable and bona fide requirement of the plaintiffs had been established on the facts and circumstances of the case. The learned Judge in the trial Court on the consideration of the facts before him came to the conclusion on the issue of hardship as follows:
I do not consider the question of hardship as defendant is not ordered to vacate the entire suit premises. He is a silver-smith and his requirements will be met by front portion of the shop measuring 10'-8' in length and 9'-5' in breadth.
With respect to the learned trial Judge, this was an erroneous approach. It was obligatory on him to consider in view of the issue that he had framed whether greater hardship was going to be caused by passing the decree for eviction than by refusing to pass it and unless he came to a specific conclusion on that issue, he could not have passed any decree for eviction. As regards the decree for partial eviction which he actually passed, nowhere has the learned trial Judge recorded his finding that by the arrangement which he was proposing viz. awarding possession of the rear portion of the suit premises to the landlords, no hardship was going to be caused either to the landlord or to the tenant.
4. The learned Judge in the City Civil Court at the time of disposing of the appeal observed in paragraph 6 of his judgment as follows:
At the same time, the learned Judge has also considered the question of hardship partly in favour of the defendant, as he is not evicted from the whole premises. He is asked to part with only the rear portion of the shop. The defendant is a silver-smith. He prepares ornaments and sells them in the shop. There is nothing in his evidence to prove that he requires the whole of the shop for his business and that he could not carry on the business in the portion which the learned Judge of the lower Court has allowed to remain with the tenant. In my opinion he will have sufficient accommodation to carry on his business. So in these circumstances, there is no case for interference in the decree passed by the lower Court.
With respect to the learned Judge in the City Civil Court, his approach to the question of hardship was erroneous. It was obligatory on him before confirming the decree for partial eviction to satisfy himself that no hardship was going to be caused either to the landlord or to the tenant by confirming the decree for partial eviction. There was evidence on the record to show that some hardship was going to be caused to the tenant if he was evicted from the suit premises. With respect to the learned Judge in the City Civil Court, I am unable to understand how the tenant at the stage of giving his evidence could have anticipated that the learned trial Judge was going to pass a decree for partial eviction and therefore it was impossible for him to prove that he could not carry on his business in the portion which the learned Judge of the trial Court had allowed to remain with him. The evidence of the defendant is on the record of this Civil Revision Application and nowhere has he been questioned regarding the absence of hardship to him if the front portion of the shop were allowed to remain with him and the rear portion were to be handed over to the landlords. With respect to the learned City Civil Court Judge, therefore, it was not correct to draw the conclusion against the tenant from the absence of any statement in his deposition that he could not carry on his business in the portion which the learned Judge of the trial Court had allowed to remain with the tenant.
4.1 It is clear, therefore, that both the learned trial Judge and the learned Judge in the City Civil Court failed to apply the test which is required to be applied before a decree for partial eviction can be passed viz. the test of no hardship either to the landlord or to the tenant if the decree for partial eviction were to be passed. Under the amended provisions of Section 29(2) of the Act, the High Court can interfere with the decision of the lower appellate Court if that decision is not according to law. Applying the principles laid down by the Supreme Court in Hari Shankar v. Girdhari Lal A.I.R. 1963 Section C. 698 it is clear that in the instant case without reappreciating the evidance and taking the conclusions on questions of fact as arrived at by the learned Judges, the decision of the learned trial Judge and the decision of the learned Judge in the City Civil Court were not according to law. In the absence of any finding showing the satisfaction of the Courts below that no hardship was going to be caused either to the tenant or to the landlords by passing the decree for partial eviction, such a decree cannot stand and with respect to the Judges, in the Courts below, that decree must be reversed. It is true that the plaintiffs have established, according to the Courts below, their case of reasonable and bona fide requirement but at the same time neither of the Courts below applied its mind to the issue of greater hardship as it should have been done. In any event, the decree for partial eviction passed by the Courts below was not according to law. There was material on the case which would go to show that the tenant had led evidence on the issue of hardship but the courts below have not considered that issue but satisfied themselves with passing decree for partial eviction.
5. In the light of what I have stated above, the decree for partial eviction must be set aside and this Civil Revision application must be allowed. Under the circumstances, I remand the matter back to the learned trial Court Judge for recording his findings on all the issues arising in the case. It would be open to the parties to lead fresh evidence on the issues framed by the learned trial Court Judge because a considerable time has elapsed since the suit was originally tried and it is quite likely that subsequent events might have a bearing on the issue of reasonable and bona fide requirement and issue of hardship. The learned trial Judge will pass appropriate decree according to law after recording such further evidence as the parties may lead. There will be no order as to costs. Rule Absolute.