R.N. Dutt, J.
1. The plaintiff and the defendant arc both firms. The defendant was a monthly tenant under the plaintiff in respect of a godown at 45-A, Adya Sradh Ghat Road, Calcutta at Rs. 132-8-0 per month in accordance with the English calendar. The plaintiff required the disputed godown for its own use and occupation and accordingly the plaintiff determined the defendant's tenancy by service of notice to quit requiring the defendant to vacate the godown with the expiry of the last day of August, 1954. The defendant failed to vacate and hence the plaintiff filed the suit for ejectment. The defendant contested the suit. Its defence was that the notice was not legal or valid and that the plaintiff did not reasonably require the godown for its own use and occupation. Both the courts have concurrently found that the notice to quit was legal and valid and that the plaintiff reasonably required the godown for its own use and occupation. The suit was, therefore, decreed. Mr. Janah submits that the courts below should not have held that the plaintiff reasonably required the godown for its awn use and occupation. This is a pure question of fact and both the courts have concurrently found against the defendant. Mr. Janah has not been able to point out that the courts below failed to consider any relevant material on record on this point. The concurrent finding of the courts below, is, therefore, final and I find no reason to interfere with that finding.
2. Mr. Janah then submits that the notice to quit is not legal or valid. The notice, as I have said required the defendant to vacate the premises with the last day of August, 1954. Mr. Janah submits that the plaintiff failed to prove that the tenancy was from the first to the last day of the month according to the English Calendar. The plaintiff is silent in the plaint about the commencement or the termination of the tenancy. It is not disputed that the oral evidence is also silent about the commencement or the termination of the tenancy. Mr. Janah refers to the decision in Surya Kumar Manji v. Trilochan Nath, : AIR1955Cal495 and argues that since the plaintiff has not proved the date on which the tenancy commenced, the notice which was in accordance with the English calendar cannot be said to be legal and valid. Mr. Dutt, who appears for the plaintiff submits that the defendant during trial admitted the legality and the validity of the notice. It is true that the courts below have said that the legality and the validity of the notice were not challenged at the trial but on a reference to the written statement I find that the legality and the validity of the notice was challenged there. Be that as it may I find that the defendant had himself deposited rents with the Rent Controller in accordance with the English calendar. This shows that the tenancy was really from the first to the last day of the month in accordance with the English calendar. Mr. Jana submits that these deposits were made after the suit was filed. But that is immaterial. If the tenancy was in accordance with the Bengali calendar or if the tenancy commenced from any other date of the English month the defendant ought have deposited rents accordingly. Thus though there is no evidence adduced on behalf of the plaintiff to prove the commencement of the tenancy, these challans showing deposit of rent by the defendant prove the month of the tenancy and therein prove the legality and the validity of the notice. This point of Mr. Janah, therefore fails.
3. Mr. Janah lastly submits that the courts below failed to consider the proviso to the explanation to proviso (h) of Section 12(1) of the Kent Control Act, 1950 which says 'Provided that where the court thinks that the reasonable requirement of such occupation may be substantially satisfied by evicting the tenant from a part only of the premises and allowing the tenant to continue occupation of the rest and the tenant agrees to such occupation the court shall pass a decree accordingly (sic). The courts below found that the plaintiff required the godown for its own use and occupation. Mr. Dutt first submits that the courts did not proceed under the proviso because the courts did not think that the reasonable requirement of the plaintiff would be substantially satisfied by part eviction. But this argument cannot be sustained because it does not appear that the courts applied their mind to this aspect of the matter and came to a finding that the reasonable requirement of the plaintiff would not be substantially met by part eviction. Mr. Dutt then submits that no such defence was taken in the written statement and as such it was not incumbent on the part of the courts to consider this aspect of the matter. He refers to the decision in Gobinda Bhusan Roy v. Jnan Chandra Mukherjee, 1958 Cal LJ 265 where K.C. Das Gupta J. presiding over a division Bench of this court held that unless such a plea was distinctly raised in the written statement the defendant could not be allowed to raise it in second appeal. But this Bench did not consider whether even in the absence of such a plea in the written statement it was incumbent on the trial court to consider this aspect of the matter before a decree in ejectment is made. This Bench in the facts of that case was of opinion that the evidence on record did not justify the conclusion that the reasonable requirement of the landlord would be substantially satisfied by evicting the tenant from a part of that premises. This decision was made on January 3, 1958. But on January 28, 1958 one other Division Bench of this court specifically held that even though no such plea is taken in the written statement it is incumbent on the court to consider this aspect of the matter as it was a duty cast on the court by the statute. Mr. Justice P.N. Mookerjee delivering the judgment of this Division Bench said.
''The defendants failure to do so, however, does not relieve the court of its duty under the statute and having regard to the object and scheme of the disputed proviso and, particularly, its wording, it seems to us that it is open to the court--and that indeed, seems to be its duty--to consider this question of partial eviction, if it thinks, on the materials before it, that that ought to satisfy substantially the plaintiff's reasonable requirement of occupation......'
(Vide Krishna Das Nandy v. Bidhan Chandra Roy, reported in : AIR1959Cal181 .
Since the court below in that case did not consider this aspect of the matter the case was remanded to High Court for consideration of this aspect of the matter. Mr. Janah also refers to the decision in Om Prakash Asija v. Monohar Lal Kakar, 05 Cal WN 1201 where a Single Bench of this court followed the later Division Bench case in preference to the earlier Division Beach case. On a consideration of the terms of the said proviso it seems to me that this is a duty east by the statute on the court before he makes a decree in ejectment on the ground of reasonable requirement. Clearly enough the landlord is entitled to eject a tenant for his own requirement but it is just and proper that he should be limited to the minimum that will substantially satisfy his reasonable requirement and it will be for the trial court to consider this on the materials on record even though the tenant does not take a specific plea for that in the written statement and when the court itself thinks that part eviction will meet the landlord's reasonable requirements it is only then that the consent of the tenant is to be sought for. Thus I hold that it was incumbent on the courts below to consider this aspect of the matter. The materials on record do not seem to be sufficient for a proper decision on this point and this is a fit case where the matter should receive consideration at the first instance by the trial court.
4. In the result the appeal is allowed and the suit remanded to the Trial Court for consideration of the question if the reasonable requirement of the plaintiff can be substantially satisfied by a partial eviction of the defendant. That will be the only point to be considered at the fresh hearing and it will be decided on the materials now on record and such further evidence as either party chooses to adduce on this point and the suit will then be finally disposed of by the Trial court in accordance with law and in terms of this judgment.
5. Parties will bear their own costs in this court.
6. Let the records be sent down as early an possible.