The proviso to section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 does not require any pleading that just a part eviction of the accommodation can satisfy the requirements of the landlord. The burden of proof is on the tenant to show that the landlord's requirements can be substantially satisfied by part eviction.

B. L. Yadav, J.

1. This is a plaintiffs second Appeal in a suit for eviction of the defendant from the suit premises as given in the plaint as well as for arrears of rent from the defendant.

2. The suit was contested by the defendant-respondent and the averments made in the plaint were denied.

3. The Trial Court decreed the suit to the extent that the defendant was required to pay arrears of rent and also other outstanding dues and to vacate the suit premises within three months from the date of the order failing which plaintiffs will be at liberty to vacate the suit premises through the process of the court. The defendant preferred appeal before the District Judge and Ist additional District Judge, West Champaran, Bettiah, by the decree dated 8th may, 1995 has partly decreed the suit and allowed the appeal in part to the extent that in view of Proviso to section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (compendiously the Act), the requirement of the plaintiffs can be substantially satisfied by eviction of the defendant-tenant from the part of the accommodation and they were also entitled to arrears of rent @ Rs.100/- per month for the month of May, 1985 till August, 1986 which came to the extent of Rs.1600/-.

4. Learned counsel for the appellants urged that it was not within the pleadings either of the defendant or the plaintiffs that eviction of defendant from a part of the accommodation can satisfy the requirements of the plaintiffs in view of Proviso to Sec.11 of the act. Reliance was placed on M/s. Bata india Ltd. V/s. Dr. Ma. Qamruzzama, 1993 (1) PLJR 87. It was also contended that findings about the arrears of rent were also not correct.

5. Having scrutinised the submissions of the learned counsel for the appellant, suffice it tp say that the Proviso to section 11 of the Act does not require any pleading that just a part eviction of the accommodation can satisfy the requirements of the landlord. The section has to be read with Proviso and other provisions. While interpreting section 11 of the Act I am reminded of an old Lat in Maxim "injustum EST nisi ZOTA DEGE INSPECTA DE una ALIQUA EJUS PARTICULA proposita JUDICARE VEL respondere", which connotes that it shall be unjust to refer to only one part without examining the entire provision with other relevant provisions. The section has to be read as a whole. In case the Proviso is excluded in that event the remaining section does require pleadings to get a decree for ejectment either on the basis of act against the lease, the default; arrears of rent and bona fide needs. The functions of this Proviso may be noticed in many folds :

(a) the main function of the proviso is to carve out an exception to the main enactment which cannot be interpreted so as to set at naught the main enactment. To put it precisely the functions of the proviso are qualifying or excepting certain provisons from the main enactment. (b) It may entirely change the very concept of the intendment of the enactment by insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable. (c) It may be so embedded in the act itself as to become integral part of the enactment and thus acquire the tenor and colour of the substantive enactment itself. (See S. Sundaram V/s. V. R. Pattabhiraman, a. I. R.1985 S. C.582 and A. N. Sehgal and others V/s. Raja Ram Sheoram and others, AIR 1991 S. C.1406 ).

6. In the present context the proviso added to section 11 provides that before deciding the application or the suit for the ejectment of the tenant based on personal necessity it shall be the duty of the court that it must pass an order as to whether the needs of the landlord can be satisfied by directing the tenant to vacate a portion in his possession and for that purpose tenants were also heard or given opportunity. This was the legislative requirement and it reflects the intendment of the legislature. The expression as the court thinks fit is suff