JUDGMENT - V.S. KOTWAL, J.:---Suit premises consisting of one room being a part of a building are located at Bhiwandi in Thane District. The respondents herein are the heirs and legal representatives of the owner landlords, since deceased, after the first round of litigation was over .The petitioner was inducted as a monthly tenant with the monthly rental of Rs. 4/-. The plaintiff-landlord terminated the tenancy and demanded vacant possession on ground that he was in need of the suit premises for his personal occupation and the said requirement was also bona fide as also reasonable .According to him, there are about 12 members in his family including two married sons and their wives as also other grown up children. This large family was obliged to reside in two rooms which are in their possession and which was thoroughly insufficient to satisfy their normal needs. Furthermore, power looms are installed in some portion of one room which has further diminished the space for residential purpose. It was also contended that the petitioner-tenant has left the premises since nearly one year and had shifted to his native place and thus the room is being occupied by his wife and daughter being the only members of the house hold. After issuing the notice for termination when the demand in the said notice for possession was not complied with the landlord was obliged to file Regular Civil Suit No. 143 of 1976 in the Court of the Civil Judge (Junior Division), Bhiwandi claiming possession of the said room under section 139(1)(g) of the Rent Act. 2. The petitioner-tenant resisted the said suit. It was denied that he had left the premises though he had gone to his native place for medical treatment. According to the tenant the landlord's so-called requirement is neither bona fide nor reasonable and in support thereof some such circumstances were catalogued such as the landlord has been in possession of the other premises which are being used for different purposes while one of the sons is also residing in other premises. According to the tenant the landlord's so-called requirement is neither bona fide nor reasonable and in support thereof some such circumstances were catalogued such as the landlord has been in possession of the other premises which are being used for different purposes while one of the sons is also residing in other premises. A plea was also taken that the said suit was not maintainable in view of a decision in the earlier suit filed more or less on the same cause of action when the plea under section 13(1)(g) of the Rent Act was rejected and after the said decree there was no change in the circumstances so as to bring into existence a fresh requirement of the landlord. Both the sides claimed that greater hardship would be caused to them if the matter is decided against them. 3. The learned Civil Judge on the basis of the evidence negatived the plaintiff's contention both under section 13(1)(g) as also under section 13(2) of the Rent Act holding that the plaintiff has failed to establish that the premises were required by him for bona fide occupation. In view of this finding the learned trial Judge felt that it was not really necessary to consider the question of section 13(2) of the Rent Act. However, he answered that question in favour of the tenant holding that greater hardship would be caused to the tenant by passing a decree for eviction. The contention that the suit was barred under principle of res judicata in view of the decree in the earlier suit was also up-held against the landlord and in favour of the plaintiff. In keeping with these findings, the suit came to be dismissed on October 17, 1980. 4. The unsuccessful landlord filed Civil Appeal No. 11 of 1980 in the District Court at Thane. Unfortunately the original landlord died thereafter and so the heirs have been brought on record stepping in the proceeding as the appellants. The said appeal is still pending for hearing on the forum of the District Court, Thane. 5. Before the appeal could be heard, the petitioners herein that is the appellants in the said appeal on September 4, 1982 gave an application in the District Court, mainly relying on the second part of section 13(2) of the Act. The said appeal is still pending for hearing on the forum of the District Court, Thane. 5. Before the appeal could be heard, the petitioners herein that is the appellants in the said appeal on September 4, 1982 gave an application in the District Court, mainly relying on the second part of section 13(2) of the Act. In substance they contended that notwithstanding the finding of the trial Court on the issue of comparative hardship being decided against them, the trial Court ought to have framed a specific issue on the second part of section 13(2) of the Act to consider whether on the facts the Court could be satisfied that no hardship would be caused to either of the parties by passing a decree in respect of part of the premises, in which event the Court could pass the decree in that respect only and it is on that basis on the factual aspect it was contended that room in possession of the tenant can be conveniently divided into two portions while one portion can be allotted in favour of the landlord while the remaining can retained by the tenant. It was also suggested that this was an obligation of the trial Court under the statute itself to frame such an issue and to answer the same one way or other and since the trial Court failed in that behalf, it should be directed to frame such an issue and allow the parties to lead evidence in that behalf for which purpose a request for remand was made. 6. This application was resisted on behalf of the petitioner-tenant mainly on the ground that there was no statutory obligation on the part of the trial Court to frame any such issue and furthermore there was neither any plea nor any evidence was led by the parties and the move on the part of the appellants was motivated only to prolong the litigation. 7. The learned Joint Judge placing reliance on certain ratios of the judicial pronouncements held that notwithstanding the deficiencies of there being no pleading nor evidence led on that point, still it was obligatory on the part of the trial Court to frame such an issue. 7. The learned Joint Judge placing reliance on certain ratios of the judicial pronouncements held that notwithstanding the deficiencies of there being no pleading nor evidence led on that point, still it was obligatory on the part of the trial Court to frame such an issue. Consequently he framed an issue as--- "Whether it is possible to pass a decree for eviction in respect of part of the demised premises." In consonance with this the lower Appellate Judge issued directions to the trial Court after referring the said issue to permit the parties to adduce evidence, both oral and documentary on the said additional issue. He also indicated that the trial Court may appoint a Commissioner for preparing a sketch of the suit premises as also the premises in occupation of the landlord. The final directions were that after recording evidence and hearing the parties the trial Court was to record a finding on the said additional issue and certify the evidence and the finding to the lower Appellate Court within a stipulated period of one month. It is this order dated September 7, 1982 that is being impugned on behalf of the petitioner-tenant in this petition under Article 227 of the Constitution of India. 8. Shri Solkar, the learned Counsel for the petitioner, assails the impugned order mainly on the ground that the approach adopted by the lower Appellate Court is not warranted by any provision of law and secondly the decisions the ratios of which are relied upon are not properly construed and according to him those do not lay down a proposition casting an obligation on the trial Court to frame such an issue, The learned Counsel also submits that the facts of the instant case do not justify the casting of an additional issue even assuming that there was an obligation as such on the trial Court. Shri Tipnis, the learned Counsel for the respondents counters this contention mainly on the ground that even assuming that there is no statutory obligation on the trial Court to frame such an issue under the second part of section 13(2) of the Rent Act, still once a motion in that behalf is made, though in the appellate Court then on that basis and even de hors of any proposition of law, the lower Appellate Court was fully competent and had jurisdiction to issue such direction and to remand the matter. The learned Counsel no doubt did endeavour to support the first plank of his proposition about the statutory obligation of the vis-a-vis second part of section 13(2) of the Rent Act. It would be proper to consider the second respect of the matter first, since that in my opinion can conveniently decide the fate of this proceeding. Notwithstanding the deficiencies that there being no plea nor any specific evidence having been led about the feasibility of division of the said room with the allied aspect about such division satisfying the needs of both the sides in which event the hardship be equal, the fact remains that even before the appeal was heard on merits in the District Court, the appellants filed an application in that behalf and brought it to the notice of the said Court about such feasibility. Permissibility of tendering such an application even on the forum of the lower Appellate Court cannot be seriously doubted. More so even an amendment to the plaint in a fit case be legitimately granted on that forum. If that be so, then the lower Appellate Court was justified in entertaining the application on merits. It is true that the lower Appellate court felt that the impact of certain decisions left no alternative for him and it is equally true that it proceeded on the footing that it was obligatory for the trial court to frame such an issue. Assuming that this process of the reasoning may be a debatable one, still the fact remains that the learned Judge was competent to consider the application on merits. Assuming that this process of the reasoning may be a debatable one, still the fact remains that the learned Judge was competent to consider the application on merits. It is also significant to note that by casting the said additional issue and by giving opportunity to the parties to lead evidence in that behalf, the lower Appellate Court has clearly indicated that it was necessary to find out whether it was possible and feasible to pass a decree for eviction in respect of part of the demised premises and it is for that purpose that the directions expressly suggested a further process to find out whether such a division is possible which would not cause hardship to either side in greater dimension. In reality, therefore, the consequence flowing out of the said directions would be merely to explore the possibility of such a division. It cannot ipso facto be equated as if the lower Appellate Court gave a command to the trial Court to decide the matter one way or other. It, really speaking consists of three-fold aspects rolled up in one, namely, about the feasibility of a division of the premises, and about the further feasibility of allotting some portion thereof to the landlord and thirdly whether in that event there would be equalising of the hardship. This is certainly permissible under section 13(2) of the Rent Act with its second part and this is irrespective of the question whether it was obligatory for that purpose to plead and whether it was equally obligatory for the trial Court to frame an issue in that behalf. Once the Court is made aware of this position, then there was no legal impediment as such for the lower Appellate Court to issue such directions. 9. It is worth nothing that this application was tendered on behalf of the landlords even before the appeal was posted for hearing in the District Court and it is not as if that it was in the mid-stream when the appeal was being heard. Furthermore, the apprehension expressed by Shri Solkar cannot be said to be well-founded for obvious reasons that the findings and the decree recorded by the trial Court are in favour of the tenant, though they are placed under challenge in the said appeal. Furthermore, the apprehension expressed by Shri Solkar cannot be said to be well-founded for obvious reasons that the findings and the decree recorded by the trial Court are in favour of the tenant, though they are placed under challenge in the said appeal. One of the findings pertains to section 13(1)(g) of the Rent Act where the landlord's claim of his requirement has been negatived and if the tenant succeeds on that issue then the further controversy would not survive at all. The second aspect about the first part of section 13(2) has also been decided in favour of the tenant holding that greater hardship would be caused to the tenant if a decree is passed against him. If the landlord succeeds on the first issue, the tenant can still support the validity of the finding of the second issue in which case also the further controversy may not survive. In that event, there would obviously be no occasion to consider this aspect which flows out of the proposed additional issue. It is only when the finding of the first two issues is upset then the consideration about feasibility of the division of the said room and such process equalising hardship of the parties would come on the forefront. The question about the suit having been barred by the principles of res judicata in view of the decree in the earlier suit would also survive for being agitated by the tenant in his favour as the finding in that behalf is already recorded in his favour. In may opinion, therefore, no prejudice would be caused to the petitioner-tenant when the lower Appellate Court adopted the course which was thoroughly within its jurisdiction. This therefore, would be a rational and inevitable result irrespective of about the statutory obligation on the trial Court to frame an issue about the second part of section 13(2) of the Act. In may opinion, therefore, no prejudice would be caused to the petitioner-tenant when the lower Appellate Court adopted the course which was thoroughly within its jurisdiction. This therefore, would be a rational and inevitable result irrespective of about the statutory obligation on the trial Court to frame an issue about the second part of section 13(2) of the Act. This is more so in the face of the facts of the instant case, when the respondent-landlord had specifically made an application, though before the lower Appellate Court, expressly requesting for such an issue being cast and thereby the competent forum was made aware of the position that was contingent on the second part of section 13(2) of the Act and once that consciousness is brought in existence through such a motion, the lower Appellate Court when it takes the cognizance of the same cannot be saddled with a blame of any error as such. It also cannot be over-looked that this application was made much before the appeal was ripe for hearing in the Appellate Court and it is not as if that the appellant made a futile attempt after realising that they would fail in the appeal. This, therefore, would answer the grievance that the appellants want to protect the litigation. It also cannot be over-looked that if this aspect is decided once for all even before the appeal is disposed of, then on the contrary it would prohibits further protraction of the litigation which would have occurred if such a motion was made only after the disposal of the appeal on the higher forum. 10. It also cannot be under-estimated that the jurisdiction under Article 227 of the Constitution of India is being invoked in this petition, which carries with it obvious limitations. Even an erroneous order is not liable to be upset as a matter of course within such jurisdiction. As I have stated, the order cannot be styled as an erroneous order but appears to be fully justified under the circumstances which would not cause any prejudice to the tenant. Furthermore, there is absolutely no jurisdictional error or any other error apparent on the face of record so as to justify interference in this proceeding. As I have stated, the order cannot be styled as an erroneous order but appears to be fully justified under the circumstances which would not cause any prejudice to the tenant. Furthermore, there is absolutely no jurisdictional error or any other error apparent on the face of record so as to justify interference in this proceeding. This would, therefore, be an additional ground for not upsetting the impugned order when the learned Appellate Judge within his competence and jurisdiction exercised discretion in passing the said order which is otherwise also maintainable on merits. 11. In this view of the matter, it is really not necessary to consider the other controversy as to whether there is a statutory obligation on the part of the trial-Court to frame an issue as a matter of course under the second part of section 13(2) in every case. Both sides relied on certain decisions and in particular the ratio of the Division bench of this Court in (Kisanrao Madhavrao Bartakke v. Narayan Dhondi Shete)1, I.L.R. 1980 Bombay 1151, which did not approve of the ratio of the decision of the learned Single Judge in (Bhaskar Digambar Chaudhary v. Bhagwan Vishwanath Fadnis)2, 78 Bombay Law Reporter, 445. The necessity arose for the Division Bench to consider that aspect in view of the conflicting view taken by the learned Single Judge in two matters one in Bhaskar's case (supra), while the other in (P. A. Machian v. Champakalal Nagindas)3, 77 Bombay Law Reporter, 99, and therefore, yet another learned Single Judge referred Kisanrao's petition (supra) to the Division Bench to resolve the controversy. One view was to the effect that there is a statutory obligation on the part of the trial Court irrespective of the question whether there was or was not a pleading as also evidence to frame such an issue under the second part of section 13(2) and to decide it one way or the other which would be in addition to the two issues being framed under section 13(1)(g) of the Act and the first part of section 13(2). The other view was to the contrary when it was held that there was no such statutory obligation of frame an issue on the second part of section 13(2) though the obligation to frame an issue restricted only to the first part of section 13(2). The other view was to the contrary when it was held that there was no such statutory obligation of frame an issue on the second part of section 13(2) though the obligation to frame an issue restricted only to the first part of section 13(2). The Division Bench no doubt indicated in favour of the other view holding that there was no statutory obligation as such in every case to frame such an issue under the second part of section 13(2) and in that manner the controversy was resolved. However, the Division Bench in terms indicated that notwithstanding there being no such obligation, the approach can still be whether the trial Court was alive and conscious to that aspect of the matter while assessing the evidence and considering the issues under sections 13(1)(g) and 13(2) of the Act. It may also be incidentally observed that in Bhaskar's case this Court was pleased to remand the matter with directions to the lower Appellate Court to cast an additional issue under second part of section 13(2) and when the matter was carried to the Supreme Court by the aggrieved party, the said order was not upset, though there has not been any firm enunciation of the position of law about the so-called statutory obligation under the second part of section 13(2). The situation, therefore, is more or less similar in the instant case when the motion was made before the learned Single Judge though for the first time when an issue was directed to be cast in that behalf. In the instant case also a similar motion is made much earlier in point of time before the lower Appellate Court which has been granted. Thus read in the context of the creation of consciousness of the position through the said motion, the impugned order deserves to be up-held. In view of this, it is unnecessary to probe into details about the said controversy arising under the second part of section 13(2) of the Rent Act, especially in view of the clear dictum of the Division Bench in Kisanrao's case (supra), since, with respect, the said authority is binding on this Court. 12. In the result, rule is discharged with nor order as to costs. -----