JUDGMENT - R.A. JAHAGIRDAR, J.:---There is, in my opinion, a conflict between the judgments of two Single Judge of this Court on the question of interpretation of a provision of the Bombay Rents, Hotel and Lodging House Rates Control Act and that compels me to refer that question to a Division Bench. The conflict between the two judgments becomes apparent while considering the contentions on behalf of the petitioner in Special Civil Application No. 2618 of 1977. The facts involved in this petition must, therefore, be briefly stated. 2. The petitioner is a tenant of two rooms, each measuring 6 khans, forming part of a building bearing City Survey No. 2620, situated in Akluj town of Malshiras Taluka of Sholapur District. Of the too rooms one is on the road side while the other is on the rear side. There is between them an open space. By a notice dated 7th November, 1970 the landlord, who is the respondent in this petition, terminated the tenancy of the petitioner with effect from 30th November, 1970 and thereafter filed a suit on 10th December, 1970 for possession of the two rooms, hereinafter referred to as "the suit premises", on the ground, among others, that he required the same reasonably and bona fide for his own use and occupation. The petitioner resisted the suit by denying the reasonableness and bona fide of the requirement of the respondent-plaintiff and by contending that in any case greater hardship would be caused to him if a decree for possession were passed. 3. The suit being, Regular Civil Suit No. 7 of 1971, was tried and disposed of by the learned Civil Judge, Junior Division, Malshiras by his judgment and Order dated 30th April, 1976. He held in favour of the respondent on the question of bona fide and reasonable requirement of the respondent of the suit premises for the use and occupation of his son. He also held that greater hardship would be caused to the respondent if a decree for possession were refused. The petitioner preferred an appeal, being Civil No. 177 of 1977, which was heard and dismissed by the learned II Extra Assistant Judge of Sholapur by his judgment and order dated 10th October, 1977. He also held that greater hardship would be caused to the respondent if a decree for possession were refused. The petitioner preferred an appeal, being Civil No. 177 of 1977, which was heard and dismissed by the learned II Extra Assistant Judge of Sholapur by his judgment and order dated 10th October, 1977. The learned II Extra Assistant Judge in his judgment held that requirement of the suit premises for the purpose of the residence of the respondents son was not established whereas the requirement of the suit premises for the purpose of a shop to be opened by the respondents son was clearly proved. This was, in the opinion of the learned Assistant Judge, enough to sustain the decree for eviction passed by the trial Court. On the question of hardship, the learned Assistant Judge, reviewed the entire evidence on record and found that there was other accommodation available to the petitioner near by and therefore no greater hardship would be caused to the petitioner if a decree for eviction were passed. At the same time, he also held towards the end of paragraph 20 of his judgment that the respondent would be put to greater hardship if the decree is refused to him. 4. It is against the order of the learned Assistant Judge dismissing the petitioners appeal that the present petition has been filed. Notice at the time of the admission was issued by this Court on 2nd December, 1977 and was made returnable within two weeks. Leave was also given to amend the petition. Pursuant to the leave so given, an additional ground has been added contending that the provisions of section 13(2), though specifically brought to the notice of the Court and though it was argued that originally the suit was filed for possession for residence and business and it having been held that the requirement for residence was not established, the appeal Court below did not consider whether the demand of the plaintiff could be satisfied by giving only a part of the suit premises. This ground obviously seeks to invoke the provisions of the second part of sub-section (2) of section 13. At the time of admission, when it came up before me, I was reluctant to place much credence on the fact mentioned in the added ground viz. that the particular point was argued before the appeal Court below. Mr. This ground obviously seeks to invoke the provisions of the second part of sub-section (2) of section 13. At the time of admission, when it came up before me, I was reluctant to place much credence on the fact mentioned in the added ground viz. that the particular point was argued before the appeal Court below. Mr. Naik, the learned Advocate appearing for the petitioner, offered to tender the affidavit of the learned Advocate who appeared for the petitioner in the Court below, I, however, found it unnecessary to require him to file that affidavit because he relying upon a judgment of this Court in (Bhaskar Digambar Choudhary v. Bhagwan Vishwanath Fadnis)1, 78 Bom.L.R. 454. Contended that the issue in terms of the requirement under the second part of sub-section (2) of section 13 ought to have been framed by the trial Court irrespective of whether there were pleadings to that effect. Accordingly, rule was issued on the petition and at the request of Mr. M.V. Paranjpe, appearing in opposition to the petition, an earlier date was fixed and accordingly the petitioner has been heard. 5. Mr. Naik, as already mentioned above, placed reliance upon the judgment of Sawant, J., in Bhaskar Digambar v. Bhagwan Vishwanath, and contended that an issue as required by the second part of sub-section (2) of section 13 had not been framed by the trial Court and since framing or such an issue was obligatory upon it, the decrees two courts below ought to be set aside and the case ought to be remanded to the Court of first instance for fresh trial. There is an earlier judgment of Deshpande J., on the same question and Deshpande, J., has held that there is nothing in section 13(2) of the Bombay Rent Act which requires the Court in every case falling under section 13(1)(g) to mandatorily record a finding on both the parts of sub-section (2) even without a plea from the parties themselves or evidence and need see (P.A. Machiah v. Chambaklal Nagindas)3, 77 Bom.L.R. 99. 6. Mr. Paranjpe, the learned Counsel appearing for the respondent, however, contended that on the facts and the circumstances of the present case, the ratio laid down by Sawant J., is not applicable. According to Mr. 6. Mr. Paranjpe, the learned Counsel appearing for the respondent, however, contended that on the facts and the circumstances of the present case, the ratio laid down by Sawant J., is not applicable. According to Mr. Paranjpe, the question of considering the hardship under the second part of sub section (2) of section 13 will not arise till a particular stage. According to Mr. Paranjpe, if it is found by the Court while considering the comparative hardship under the first part of sub-section (2) of section 13 that the tenant has alternative accommodation, then the question of passing a decree for partial eviction to make hardship equal the hardship does not arise at all. Mr. Paranjpe says that if the Court comes to the conclusion that enough accommodation is available to the tenant and the decree can be passed under the first part, then the question of passing the decree for partial eviction does to arise at all. I am reluctant to accept this submission of Mr. Paranjpe because if, as Sawant J., hash held, there is an obligation on the trial Court to raise an issue in terms of the second part of sub-section (2) of section 13, then its dispensability cannot be inferred from a finding that a Court can possibly come to under the first part. Even otherwise, under the first part when a Court comes to a finding that greater hardship will be caused to the landlord if a decree for eviction is refused, such a finding necessarily implies some hardship to the tenant. On comparison his hardship may be lesser than that of the landlord. But second part of sub-section (2) further speaks of a finding whether it is possible that hardship can be made equal between the two parties. Therefore, even if a finding is given under the first part, still the Court will have to travel to the second part. 7. Mr. Paranjpe then contended that relief should be refused to the petitioner in the instant case first because the facts and circumstances show that the petitioner has adequate and reasonable alternative accommodation available to him wherein he can wherein he can carry on his business and secondly because the point taken up by amending the petition was in fact given up by him in the appeal Court below. With the object of showing that this particular contention was abandoned in the appeal Court below, an affidavit sworn by the respondent has been filed in this Court. There is a reference in that affidavit to another affidavit alleged to have been sworn by the respondent in the trial Court and it is mentioned that it is annexed to the affidavit filed here. However, I find that the affidavit alleged to have been sworn in the appeal Court below is not annexed to the affidavit filed in this Court. It is, therefore, not possible to place upon the contents of the affidavit sworn by the respondent here. 8. Assuming that this point was not argued in the appeal Court below, the question still will be : Was it not obligatory on the part of learned trial Judge to frame the issue as required by the judgment of Sawant J. Evidence relating to the equal hardship in case a decree for partial eviction is passed, can be led by the parties if only an issue is framed in that regard. Indispensability of the issue as required by the judgment in Bhaskar Digamber Choudhary v. Bhagwan Vishwanath Fadnis, is not avoided by the failure of the petitioner to argue on that point in the appeal Court. 9. The judgment of Deshpande J., was delivered on 25-6-74 and appears to have been reported in the Bombay Law Reporters issue of February 1975 and it was therefore available when Bhagwan Digambers case was argued before Sawant J., on February 11, 1976. Unfortunately, the judgment of Deshpande J. was not brought to the attention of Sawant J., who might have followed it or might have at that stage disagreed with Deshpande J., and referred the matter to the Division Bench. 10. Mr. Naik the learned Advocate appearing in support of the petition, then contended that the judgment of Sawant, J. has been confirmed by the Supreme Court in (Bhagwan Vishwanath Fadnis v. Bhaskar Digambar)3, A.I.R. 1977 S.C. 3183. The judgment of Sawant, J., was taken to the Supreme Court and accordingly to Mr. Naik, slight modification in the operative part of the Order of Sawant J., the judgment is otherwise confirmed. I am unable to agree with this interpretation placed by Mr. Naik on the judgment of the Supreme Court. The judgment of Sawant, J., was taken to the Supreme Court and accordingly to Mr. Naik, slight modification in the operative part of the Order of Sawant J., the judgment is otherwise confirmed. I am unable to agree with this interpretation placed by Mr. Naik on the judgment of the Supreme Court. The Supreme Court has in paragraph 2 of its judgment taken note of the provisions contained in section 13(1)(g) and 13(2) of the Rent Act. The only reference that is made is to the question of comparative hardship arising under sub-section (2) which the Supreme Court found had been considered by both the trial Court and the first appeal Court in that case. There was no reference whatsoever either directly or indirectly to the second part of sub-section (2) of section 13. Their Lordships of the Supreme Court found that the learned Joint Judges judgments was set aside by Sawant J., on considering the question of comparative hardship. It appears to have been argued before the Supreme Court that the procedure found to have been followed by the learned Joint Judge in appeal while arriving at the question of comparative hardship was not correct. It was also brought to the notice of the Supreme Court that an application had been made before the learned Joint Judge by the tenant in that case that he was willing to surrender one room in his possession. In paragraph 5 of the judgment this aspect of the case has been considered by the Supreme Court by observing that the application should have been considered by the learned Joint Judge to find out whether it would meet the requirements of the landlord in that case. In particular, they framed two questions as follows : "(1) Whether the suit premises can be conveniently split up? (2) Whether the offer made by the respondent can adequately meet the needs of the 2nd appellant?" It was directed that if the premises can be conveniently split up then the second question will have to be decided. In paragraph 6, which is the operative part of the judgment of the Supreme Court, the appeal is allowed and the judgment of the High Court is set aside. The order of remand was modified in its operation by limiting it to the consideration of two questions set out in the earlier part of the judgment. In paragraph 6, which is the operative part of the judgment of the Supreme Court, the appeal is allowed and the judgment of the High Court is set aside. The order of remand was modified in its operation by limiting it to the consideration of two questions set out in the earlier part of the judgment. I am unable to persuade myself to hold that the question of the statutory obligation on the part of the lower Court to frame an issue in terms of the second part of sub-section (2) of section 13 was dealt with by the Supreme Court even by implication. It is not possible for me, therefore, to uphold the contention of Mr. Naik that the judgment of Sawant, J., on the main question relating to the statutory obligation on the part of the Court to frame an issue under the second part of sub-section (2) of section 13 has been confirmed by the judgment of the Supreme Court. I do not think it necessary to express my opinion on the correctness or otherwise of either of the two views. I have found it impossible to reconcile the views expressed in the two judgments and it is, therefore, necessary that the said question formulated by me as follows should be decided by a larger Bench : "Whether even in the absence of pleadings in that regard it is obligatory upon the Court to frame an issue in order to find out whether by passing a decree for partial eviction there will be no hardship either to the landlord or to the tenant as mentioned in sub-section (2) of section 13." The papers may now be placed before the Honble Chief Justice for taking necessary action. -----