JUDGMENT

ORDER:—Delay condoned and special leave granted on a point raised by the appellant under the proviso to the Explanation to S. 11 (1) (h) of the Jammu and Kashmir Houses and Shops Rent Control Act, 1966 (for short, the Act).

2. The only ground which we consider tenable and which has been urged by the appellant before us turns on the failure of the courts of fact in recording a finding as contemplated in the proviso to the Explanation to S. 11 (1) (h) of the Act. Obviously an error has been committed by the High Court in thinking that there is a concurrent finding of fact under the proviso aforesaid. The trial court and the first appellate court have really not considered this question on the merits; indeed evidence itself has not been taken on the score that there has been no specific plea in that behalf. We are satisfied that the proviso aforesaid mandates the court to consider whether partial eviction as contemplated therein should be ordered or the entire holding should be directed to be evicted. This aspect, therefore, requires judicial exploration after giving opportunity to both sides to lead evidence in this behalf.

3. We direct the first appellate court to go into the