NASIRUL HAQUE versus JITENDRA NATH DEY

Citation: [1985] 1 S.C.R. 638 · Decided: 24-08-1984 · Supreme Court of India · Bench: S. MURTAZA FAZAL ALI · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
B 
c 
D 
E 
F 
NASIRUL HAQUE 
v. 
JITENDRA NATH DEY 
August 24, 1984 
[S. MURTAZA FAZAL ALI AND M.P. THAKKAR, JJ.] 
Finding of Facts-Hfgh Court calling for a fiuding of facts from the trial 
court bypassing the appellate court--Whether conclusive and immune from the 
scrutin of Highy Court in a second appeal. 
Bihar BuUdings (Lease, Rent & Eviction) Control Act, 1977-Proviso to sec, 
12 (Jl (c)-Parlial Eviction-Scope of 
' 
In a second appeal filed by the appellant-tenant against an eviction 
order, the High Court remanded the matter to the trial court and called 
for a finding on the question of partial eviction. 
The trial court while 
recording its finding was of the view that the question of partial eviction 
should be considered in the light of the requirement of the landlord-res-
pondent as deposed to by him. 
The High Court accepted the finding of 
the trial court without scrutinising it and dismissed the appeal accordingly. 
Hence this appeal by special leave. 
Allowing the appeal. 
HEID : ( 1) The High Court should have scrutinised the finding of the 
trial court with special reference to the question of partial eviction even 
on facts as the finding of the trial court standing on its own (not confirmed 
by appellate court) is not conclusive on facts even in a second appeal. 
This is so because the High Court had called for a finding of facts from 
the trial court bypassing the appellate court and thus deprived the right 
of appeal to the District Judge (last court on facts) which might not have 
agreed with the trial court. 
[640 A-B] 
(2) The Fligh Court as well as the trial court failed to take into 
account the Proviso to section 12 (1) (c) of the Bihar Buildings (Lease, 
G 
Rent & Eviction) Control Act 1977, \\'·hichprovides, interalia, 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 
building and allowing the tenant to continue occupation of the rest and 
the tenant agrees to such occupation, the Court shall pass a decree 
ff 
~ccordin$ly. Thvrefore, the court has, to d\}termine ; 
• 
• 
~I 
r 
• 
• 
NASIRUL HAQUE v. JITENDRA NATH DEY (Fazal Ali, J.) 
" 
nab/ .. 
(i) 
the extent of the prcinises which the landlord 
rea~o 
'!'. 
requires. 
Deterinine it objectively and not on the basi~. of his ipsed1x1t 
or his mere desire to occupy as much as he wants; and (11) 
whether such 
require1uent as the court considers reasonable, 
will be 'substantially' 
satisfied (not fully satisfied) by ordering partial eviction. [639 G-H] 
The Court remanded the case to the High Court to decide the ques-
tion afresh after considering the evidence on record in the light of the 
aforesaid observations. 
(640--F] 
CIVIL APPELLATE 
JURl~DICTION : Civil Appeal No. 3182 of 
1984. 
Appeal by Special Leave from the Judgment and Order dated 
the 8th May, 1984 of the Patna High Court in Seeond Appeal No. 
182 of 1978. 
Jayanarayan, Miss S. Agarwal D.S. Mehra and R. P. Singh 
for the Appellant. 
Lal Narain Sinha and D. P. Mukharji for the Respondent. 
The Judgment of the Court was delivered by 
FAZAL Au. J. After hearing counsel for the parties we are clearly of 
the view that the judgment of the High Court cannot be sustained 
for two reasons. Firstly, the High Court had earlier remanded the 
case to the trial court and called for a finding from the trial court on 
the question of partial eviction. The trial court while recording its 
finding was of the view that the question of partial eviction should 
be considered in the light of the requirement of the landlord as 
deposed to by him. In doing so, the High Court failed to take into 
account the proviso to Section 12 (I) (c) of the Bihar Buildin~ 
(Lease, Rent & Eviction) Control Act of 1977, which in terms 
enjoins that 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 part only of the premises. 
The Court has therefore, in the first instance, to determine the 
extent 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 'mbstantially' satisfied (not fully 
satisfied) by ordering partial eviction. This vital aspect h

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