Holding

The trial court's factual finding is not conclusive and may be scrutinised by the High Court in a second appeal, and the proviso to Section 12(1)(c) mandates an objective test of the landlord's reasonable requirement and whether partial eviction substantially satisfies it.

Summary

Nasirul Haque, a tenant, appealed a second appeal order of the Patna High Court that had dismissed his challenge to an eviction decree. The High Court had remanded the matter to the trial court for a finding on partial eviction, accepted the trial court's finding without scrutiny, and dismissed the appeal. The Supreme Court held that a trial court's factual finding, not confirmed by the appellate court, is not conclusive and must be examined by the High Court even in a second appeal. It further observed that the proviso to Section 12(1)(c) of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1977 requires an objective assessment of the landlord's reasonable requirement and whether partial eviction substantially satisfies it. Consequently, the Supreme Court set aside the High Court's decree, remanded the case to the High Court to reconsider the issue of partial eviction in light of the statutory provisions, and stayed dispossession.

Issues considered

Whether a finding of fact by the trial court, not affirmed by the appellate court, is conclusive and immune from scrutiny by the High Court in a second appeal.
How the proviso to Section 12(1)(c) of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1977 should be interpreted with respect to partial eviction, the landlord's reasonable requirement, and the concept of 'substantial' satisfaction.
Whether the High Court was obliged to scrutinise the trial court's finding on partial eviction.

Legislation cited

Bihar Buildings (Lease, Rent & Eviction) Control Act, 1977s. 12(1)(c)

Subjects

evictionpartial evictionleaserentBihar Buildings Actreasonable requirementsubstantial satisfactionappellate jurisdictionsecond appealfact-finding

Judgment

•
NASIRUL HAQUE
A
v.

JITENDRA NATH DEY

August 24, 1984
B
[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.
c
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
D 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.
E
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
F 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] ~I

(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 ;
NASIRUL HAQUE v. JITENDRA NATH DEY (Fazal Ali, J.) 639

(i) the extent of the prcinises which the landlord " rea~onab/ ..'!'. A
requires. Deterinine it objectively and not on the basi~. of his ipsed1x1t
r or his mere desire to occupy as much as he wants; and (11) whether such
require 1uent 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- B
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 c
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.
D
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 E
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 F
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. G
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 H
satisfied) by ordering partial eviction. This vital aspect has been
'
'
V'"
'

640 SUPREME COURT REPORTS (198511 S.C.R.

A altogether overlooked by the trial court. Secondly, since the High
Court had directly called for a finding from the trial court itself,
the High Court should have scrutinized the said finding 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.
B This is so because the High Court had called for a finding of fact
from the trial court bypassing the appellate court and thus deprived
the right of appeal to the District Judge (last court on facts) which,
for aught we know, might not have agreed with the trial court and
may have considered the question from the point of view indicated
c by us, viz. , giving full effect to the concept of reasonable exccnt of
the requirement from the perspective of 'substantials' satisfaction of
such requirement as considered to be reasonable objectively. Only
in case the District Judge would have agreed with the finding of
the trial court then it may have become a finding of fact which was
binding on the High Court in second appeal. Besides the question
D as to the connotation of the word 'substantial' was itself a
substantial point of law there being no decision of the Patna High
Court on this specific point. Other Acts in various States do not
embody the concept of "substantial" satisfaction. These decision
would therefore be of no avail in the context of the facts of the •
present case. In these circumstances, it cannot be said that the
E
finding of the trial court, which is not the final court on facts, is
conclusive and immune from the scrutiny of the High Court even
in a second appeal. We therefore, allow appeal, set aside the
decree of the High Court and remand the case to the High Court
•
to decide the questionafresh after considering the evidence on record
F in the light of the aforesaid observations. The appeal is disposed of
accordingly.
•
Tn the meantime there will be stay of dispossession. The High
Court is requested to expedite the hearing of the case.

M.L.A. Appeal allowed.