The absence of a specific pleading by the defendant-tenant does not stand in the way of the court's obligation to act in compliance with the mandate of the statute. However, if the defendant-tenant has made a positive statement in the written statement which is destructive of the very root of the question of partial eviction, the court cannot and should not embark on an enquiry of the nature required in regard to the partial eviction to satisfy substantial personal needs of the landlord.

S. Shamsul Hasan, J. - This is an appeal by the defendant-tenants in a suit for eviction.

2. After the plaintiffs' successful odyssey the defendants have come to this Court. The lower appellate court decreed the suit on the ground of personal necessity and sub-letting. Both these grounds have been assailed in this Court.

The substantial questions of law framed are as follows :-

(1) Whether the courts below acted illegally in ORDER :ing eviction from the suit premises without considering as to whether the requirements of the plaintiffs could be fulfilled by part eviction of the appellants; and,

(ii) Whether the finding regarding subletting has been recorded in accordance with law.

4. When the matter was heard by me setting singly a recent decision of the Supreme Court in the case of Nasirul Haque v. Jitendra Nath Dey (A. I. R. 1984 S. C. 1799: 1984 PLJR 79 (SC) was cited to submit that the court below has failed to record a finding that the substantial need of the plaintiffs-landlord would be satisfied by eviction of the tenants from a portion of the tenanted premises. I felt that this finding could only be given if the defendant-tenant raises sucuha plea in the written statement and leads evidence is that regard. I must confess that while making the reference I had not considered the decision in the case of Rehman Jeo Wangnoo v. Ram Chand (A. I. R. 1978 Supreme Court 413). That decision, in the following lines, clearly .and generally answers the point in the situation of fact in that decision, which I have referred to the Division Bench for disposal.

" ...... The court must proceeding on the footing that the absence of a specific pleading under the said proviso does not stand in the way of the obligation of the court to act in compliance with the mandate of the statute......"

5. If I may say so with respect, a radical departure was made from the requirement of the Code of Civil Procedure in regard to the requirement of a party to Ii suit to state all its claims and assertions in the pleadings failing which no issue could be framed or tried and also the principle of constructive resjudicata. The matter, however, in the facts of the instant ease, needs adjudication. The Supreme Court decision in the case of Rehman Jeo Wangnoo (Supra) states that absence of a specific pleading will not stand in the way of the Court in deciding this aspect. From this decision itself an interesting aspect emerges. The Supreme Court has used the expression absence of a specific pleading" and has not used the expression" in spite of the pleading".

A clear distinction, therefore, emerges' between a situation in which there is no pleading at all by the defendant relevant to the issue and in which a specific statement is made in the written statement which is destructive of the very root of the question of partial eviction. In the former the Court is required to allow a party to lead evidence and is directed to give a finding in regard to the satisfaction of substantial need of the landlord by partial. eviction. In the latter, however, on the pleading itself the Court cannot and should not embark oil an enquiry of the nature required in regard to the partial eviction to satisfy substantial need of the landlord. Use of a positive statement by a party in a pleading can without doubt be used against him, if applicable detrimentally, particularly when the Supreme Court only emphasises the absence of a pleading and does not say that the opportunity must be given in spite of a pleading adverse to the application of the relevant' statute. In this appeal when the defendants themselves have stated that the premises in question is not adequate enough to meet the personal necessity of the plaintiff respondents, the question of partial eviction to satisfy substantial personal needs of the landlord does not arise at all. I have, therefore, no hesitation in holding that by the nature of the pleadings in this case the question of satisfaction of substantial need