A. M. BHATTACHARJEE, J. ( 1 ) JUDGMENT:- The original plaintiff, the predecessor of the present plaintiff-respondents, filed the suit giving rise to this appeal for the recovery of the premises let out to the appellants and other reliefs on the ground that the appellants committed default in payment of rent for a period of more than four months and that the premises were also required reasonably and bona fide for starting a garage for his existing business. The original plaintiff having died during the pendency of the suit, the present plaintiff were brought on record by substitution and the learned District Judge, who tried the suit, has decreed eviction on the ground of defaults only while rejecting the claim for eviction on the ground of reasonable requirement. As a result, while the tenants have filed this appeal against the decree for eviction, arrears of rents and mesne profits, the landlords have preferred a cross-objection urging that eviction ought to have been decreed on the ground of their reasonable requirement also. Having heard Mr. T. K. Pandit, the learned counsel for the appellants and Mr. N. K. Moitra, the learned counsel for the respondents and after going through the records, I am of the opinion that the learned District Judge was not right in holding the appellants to have committed defaults in payment of rent and in decreeing eviction on that score though I agree with the learned Judge's finding that the respondents have not been able to make out a case for bona fide requirement of the premises. In my view, therefore, while the appeal should be allowed, the cross-objection by the respondents should be dismissed. ( 2 ) IT appears from the evidence on record, and particularly from Ext. P-5, that both the parties were having mutual dealings with, and consequential claims against, each other since a long period. While the claim of the tenants consisted of charges for servicing new Jeeps and other vehicles, garage parking rents and also some dues for some construction works, the claim of the landlord, i. e. , the original plaintiff, consisted of rents for the suit premises due for the period from 1-4-64 to 31-12-76, price for paints, spare parts etc. and an account having been taken by and between the parties on 13-6-77, it was settled that a sum of Rs. 17,898. and an account having been taken by and between the parties on 13-6-77, it was settled that a sum of Rs. 17,898. 12 was due from and payable by the tenants and the tenants agreed to make the payment within six months from that date. ( 3 ) BE it noted that in this suit filed in October, 1977, ejectment has been claimed on the ground of default in the payment of rents for the period from January to September, 1977 and the rents due for any portion of that period were not taken into consideration while settling the account by and under Ext. P-5, even though such settlement was effected as late as on 13-6-77 and that would go to show that both the parties treated the outstanding dues ascertained on 13-6-77 by and under Ext. P-5 in which rents due up to the end of 1976 only were taken into account, and the rents due for the period thereafter since. January, 1977, as separate debts. Receipt of Rs. 8,000/- by Ext. D 7 dt. 17-6-77 and of Rs. 4,000/- by Ext. D 9 dt. 15-9-77 by and on behalf of the original landlord from the tenants have been admitted, both the receipts having been issued by the Manager and Attorney of the original landlord, being PW 2. In Exhibit D-7 it was expressly noted that the amount of Rs. 8,000/-was "on account of part payment towards the settlement of old outstanding dues", clearly referring thereby to the outstanding dues ascertained in Ext. P-5 to the tune of Rs. 17,000/- and odd. But Ext. D-9, being the receipt for a cheque of Rs. 4,000/-, does not refer to any such outstanding balance, but only recites that the same was received "on account of M/s. Gangtok Auto Works Pvt. Ltd. , Gangtok", that being the name of the tenant-company. The very fact that Ext. D-7 between the same parties acknowledging receipt of Rs. 8,000/- expressly records the same to be towards "old outstanding dues", while Ext. D-9 between the same parties and executed by the very same PW 2 does not refer to any such old outstanding dues, but simply records receipt of payment made by the tenant-company, might go a very long way to fortify the contents of the tenants-defendants that the amount covered by Ext. D-9 was not paid towards the old outstanding dues settled by Ext. D-9 was not paid towards the old outstanding dues settled by Ext. P-5, but was towards the other debt being dues relating to rents for the period commencing from January, 1977. I need not consider in any detail the provisions of Ss. 59,60 and 61 of the Contract Act relating to appropriation of payment when the debtor making the payment owes several distinct debts to the creditor. For here, apart from the fact that Ext. D-9, being the receipt for the cheque for Rs. 4,000/-granted by the same person does not refer to the old outstanding dues, while Ext. D-7 being the receipt for the amount of Rs. 8,000/-granted by the very same person expressly refers to the said dues, the grantor of the receipts representing the original landlord and deposing as PW-2 has clearly stated that "the receipt Ext. D-9 for Rs. 4,000/-is towards rent of the premises in suit and also towards the dues as found in the agreement D5". The letter 'd' in the expression "agreement D-5" in the typed script of the deposition was obviously a typographical error for the letter 'p', for it is the plaintiffs own case that the outstanding dues were settled by and under Ext. P-5 only, while Ext. D-5, being a certificate of incorporation of the defendant company, is not at all any agreement and has nothing to do with any settlement of dues. Mr. Moitra also, appearing for the respondents, has not, with his usual fairness, disputed this. ( 4 ) THE argument of Mr. Moitra that the expression "towards rent of the premises in suit" in the above quoted statement of PW-2 referred to the rents due for the period up to December, 1976, cannot be accepted for the simple reason that the expression "also towards dues as found in the agreement D-5" immediately follows the earlier expression and, as already noted, the dues settled in Ext. P-5 included all the rents due up to the end of December, 1976. P-5 included all the rents due up to the end of December, 1976. It is no doubt true that, as pointed out by the Privy Council in Radha Kishun v. Hira Lal AIR 1927 PC 50 at p. 51, the burden is upon the party to prove appropriation which he seeks, but I am inclined to think that such burden in this case has been discharged by the tentants by eliciting the statement extracted above in the cross-examination of PW-2 and also by proving Ext. D-9 and Ext. D-7, as discussed hereinabove. ( 5 ) THE monthly rent for the premises being Rs. 370/-, rents for the period from January to September, 1977 would amount to Rs. 3300/-only, and therefore, if the cheque of Rs. 4,000/-acknowledged in Ext. D-9 issued in September, 1977, was towards rent of the premises in suit, then there was no arrears of rent on 3-10-1977 when the present suit was filed, far less arrears for not less than four months which alone would warrant a decree for eviction on the ground of arrears of rent. It should also be noted that in September, 1977, when the cheque for Rs. 4,000/- was paid and received the rent for the period up to August, 1977 was already in arrears, while the amount found due under Ext. P-5, or the balance thereof after deducting the payment of Rs. 8,000/-covered by Ext. D7, could, as agreed in Ext. P-5 itself, be paid at any time within December, 1977. Even in Ext. 1 dt. 31-8-1977, isued few days before the payment of the amount of Rs. 4,000/- covered by Ext. D9 dt. 15-9-1977, it was stated by the landlord that while the balance of old outstanding dues ascertained in Ext. P-5 could be paid at any time as may be convenient within six months thereof, the rents already in arrears were to be otherwise paid as a separate debt. This would also make the case of the tenants more acceptable, the case being that the amount covered by Ext. D-9 was towards the rents for the period from January to December, 1977 and not towards the old outstanding dues covered by Ext. P-5. This would also make the case of the tenants more acceptable, the case being that the amount covered by Ext. D-9 was towards the rents for the period from January to December, 1977 and not towards the old outstanding dues covered by Ext. P-5. ( 6 ) UNDER S. 60, Contract Act, if the debtor, owing several debts to a creditor, makes a payment without any express intimation or implied indication as to which debt the payment is to be applied, the creditor has a discretion to apply the payment to any debt or debts due to him. And Mr. Moitra has accordingly urged that even assuming, as stated by PW-2, that payment of Rs. 4,000/- covered by Ext. D9 was applied both towards rents and the old outstanding dues, there being no evidence as to how much of the amount was applied to which debt or how much of the amount was appropriated towards the rents due for the period from January to August/september, 1977, it cannot be held that the tenants were not in arrears of rents for four months or more. But I am afraid that even assuming that the landlord could make such partial appropriation to both the debts, it was for him to prove that he in fact did so, In other words, assuming that the landlord could do so, it was for him to allege and prove that the amount of Rs. 4,000/- though more than sufficient to cover all the rents in arrears, was in fact partially appropriated to a portion of the rents in arrears and partially to the old outstanding dues, leaving thereby more than four months' rents in arrears to warrant eviction; but far from proving the same, there is no whisper about it from the side of plaintiff or anywhere in the record. Under the circumstances, I am of the view that the learned District Judge was wrong in finding that the tenants were in arrears in payment of rent for the requisite period and his finding must be overturned. ( 7 ) AS to the case of reasonable requirement, the case of the original plaintiff was that he required the suit premises for starting a garage for the expansion of his business carried on in the name and style of Tenzing and Tenzing. ( 7 ) AS to the case of reasonable requirement, the case of the original plaintiff was that he required the suit premises for starting a garage for the expansion of his business carried on in the name and style of Tenzing and Tenzing. The original plaintiff having died on 31-3-1982 during the pendency of the suit, the present plaintiffs, being his sons and daughters, were substituted on 13-4-1982 and the suit has been finally disposed of on 24-7-1984. The evidence in this case was, however, recorded during the lifetime of the original plaintiff and the substituted plaintiffs, after being brought on record, have adduced no evidence whatsoever whether as witnesses or otherwise. The learned Judge has observed that, even assuming that the original plaintiff could make out a case of reasonable requirement for his own business, there was nothing on record to show that the substituted plaintiffs, or any of them, still carried on or intended to carry on the said business and required to start a garage and as such required the suit premises on that ground, and the learned Judge has taken the view that under such circumstances, the substituted plaintiffs cannot obtain a decree for eviction for the reasonable requirement, even if there was any, for the business of the original plaintiff. Mr. Moitra appearing for the respondents/cross-objectors has argued that the learned Judge has made an entirely wrong approach and ought to have held that the present plaintiffs could continue to maintain the suit on the very same cause of action and has relied on the decision of the Supreme Court in Shantilal Thakordas v. Chimanlal Maganlal, AIR 1976 SC 2358 in support of his contention. In that case, the suit for ejectment was filed on the ground that the landlord required the premises for occupation for himself and also the other members of his family and it was held that on the death of the landlord during the pendency of the suit, the right to sue survived to the other members of the family who could continue and proceed with the suit and the contrary view in an earlier decision of the Supreme Court in Phool Rani v. Naubat Rai AIR 1973 SC 2110 was overruled. It must, however, be noted that in Shantilal Thakordas (AIR 1976 SC 2358) (supra), as would appear from the judgment (at 2359), the landlord, who instituted the suit, died during the pendency of the appeal in the First Appellate Court which maintained the decree for eviction by the Trial Court, but on revision the High Court remanded the case for re-hearing with a direction to determine the question as to whether the heirs of the deceased landlord, who were then substituted as the plaintiffs, also reasonably required the premises for their occupation. The First Appellate Court, on remand, found in favour of the substituted plaintiffs and decree eviction. When the matter again came up before the High Court on revision by the tenant, the High Court, in view of the decision of the Supreme Court in Phool Rani (supra), rendered during the pendency of the revision, allowed the revision and dismissed the suit for eviction, holding in accordance with Phool Rani (supra) that the requirement of the deceased landlord, even for the occupation for the members of his family, was his personal requirement and such a personal cause of action died with the landlord. On appeal by the substituted plaintiffs, the Supreme Court in Shantilal Thakordas (AIR 1976 SC 2358) (supra) overruled this view, but nevertheless dismissed the appeal holding that the requirement of the substituted plaintiffs in respect of the premises was not proved on evidence. The position, therefore, e premises was not proved on evidence. The position, therefore, appears to be that even though the cause of action for the suit grounded on the personal requirement of a landlord, would, on his death, survive to his heirs who can maintain the action, the suit can, however, be decreed in their favour as the substituted plaintiffs only when it is proved that they themselves also require the premises. It may be noted that in Phool Rani (AIR 1973 SC 2110) (supra), also, where the original landlord died during the pendency of the appeal, the Appellate Tribunal also remanded the case for determining the question whether the heirs of the original landlord, substituted as the plaintiffs in appeal, required the premises themselves. It may be noted that in Phool Rani (AIR 1973 SC 2110) (supra), also, where the original landlord died during the pendency of the appeal, the Appellate Tribunal also remanded the case for determining the question whether the heirs of the original landlord, substituted as the plaintiffs in appeal, required the premises themselves. The learned District Judge was, therefore, right in holding that after the death of the original landlord, who instituted the suit, the suit could not be decreed at the instance of the heirs of the original landlord without evidence to the effect that they were also carrying on the said business of Tenzing and Tenzing and they also required the suit premises for the expansion of the business by starting a garage. ( 8 ) BUT should I then remand the case for determination as to whether the heirs of the original landlord, substituted in his place as the present plaintiffs, also themselves reasonably require the premises for the business carried on by their predecessor, as was done by the High Court in Shantilal Thakordas (AIR 1976 SC 2358) (supra) and the First Appellate Tribunal in Phool Rani (AIR 1973 SC 2110) (supra)? I am, however, inclined to think that I need not and should not make any such remand for more reasons than one. Firstly, in both Shantilal Thakordas (supra) as well as in Phool Rani (supra), the original plaintiff who sued for eviction for his requirement died during the pendency of the First Appeal and, therefore the heirs substituted in his place at the appellate stage had no opportunity to prove that they also themselves reasonably required the premises and that could, and in fact did, justify the remand. In this case, however, as already noted, the original plaintiff died during the pendency of the suit in the Trial Court and the heirs came on record as the plaintiffs more than two years before the suit could be disposed of by the Trial Court and they thus having every possible opportunity to prove or further prove their requirement cannot reasonably pray for a remand to prove the same afresh. It must also be noted that they, as the respondents before me, have at no stage made any such prayer through their counsel or otherwise. It must also be noted that they, as the respondents before me, have at no stage made any such prayer through their counsel or otherwise. Secondly, for the reasons stated hereinbelow, I am also inclined to agree with the learned District Judge that on the evidence on record, a case for reasonable requirement even by the original plaintiff, who was alive when the evidence in the suit was recorded, does not appear to have been satisfactorily proved and, if that is so, no remand can be justified. Let me, therefore, consider the merits of the case as to reasonable requirement as made out by the original plaintiff. ( 9 ) FOLLOWING the observations of the Supreme Court in Mattulal v. Radhe Lal AIR 1974 SC 1596 and in Neta Ram v. Jivan Lal AIR 1963 SC 499, while considering similar restrictive enactments relating to eviction of premises-tenants, it was observed by a Division Bench of this Court in Paul Sangay v. Mahabir Prasad AIR 1980 Sikkim 13 that the Gangtok Rent Control and Eviction Act, 1956, has imposed restriction on the right of the landlord to evict and on the jurisdiction of the Court to decree eviction of tenants and the onus of proving the conditions, on proof of which alone the tenants may be evicted, lies squarely and heavily on the landlord. In the light of the observations of the Supreme Court in Deccan Merchant Corporation v. Dalichand AIR 1969 SC 1320 at p. 1328, followed in the rather recent decision in Natraj Studios v. Navrang Studios, AIR 1981 SC 537 at p. 548, it has been observed by this Court in the Division Bench decision in Hari Ram v. Khyali Ram (1983) 1 Rent CJ 169 and in Phup Tshering v. Gauri Shanker (1984) 2 Rent CJ 150 at 152, 154 that the scheme of the Gangtok Act, like the other enactments operating in other States, must be viewed to have been based on public policy, the policy being to give protection to the tenants and that the provisions thereof are more protective of the interests of the tenants than of the landlords and, therefore, the very purpose behind these legislations like the Gangtok Rent Control and Eviction Act, would be defeated if the landlords are allowed to come forward and turn out the tenants on the plea that they require more accommodation for their occupation for residence or business or otherwise, unless the Courts are fully satisfied as to the honesty, genuineness and also reasonableness of that plea. The requirements must appear to be reasonable on the evidence on record even though S. 4 of the Gangtok Act uses the expression bona fide only, for, as held by this Court in Phup Tshering Bhutia (supra) following the observations of the Supreme Court in Kamla Soni v. Rup Lal 1970 Rent CJ 34 at 136, "in determining whether the claim is bona fide, the Court is entitled and indeed bound to consider whether it is reasonable". In the light of the aforesaid observations, let me therefore, consider whether on the evidence on record the original plaintiff could be regarded to have discharged the onus of proving that "the premises are required for the bona fide occupation of the landlord" within the meaning of S. 4 of the Gangtok Act. In the light of the aforesaid observations, let me therefore, consider whether on the evidence on record the original plaintiff could be regarded to have discharged the onus of proving that "the premises are required for the bona fide occupation of the landlord" within the meaning of S. 4 of the Gangtok Act. ( 10 ) THERE should be no doubt that, as held by this Court in Naurauglall v. Basant Kumari AIR 1981 Sikkim 22 at 30, 31, before decreeing a suit on the ground of the landlord's bona fide requirement for his own occupation, whether for his residence or business or otherwise and granting ejectment of tenant from a building occupied in part by the tenant and in part by the landlord, as in this case, the Court must be in a position to ascertain the extent of the portion in occupation of the landlord and also the extent of the portion in occupation of the tenant and to ascertain further whether the accommodation available to the landlord is or is not sufficient for his bona fide requirement and, if not, whether the portion occupied by the tenant would reasonably serve the landlord's further requirement and is, therefore, reasonably required to be made available to the landlord. But after repeatedly going through the evidence on records as carefully as I could, I have not at all been able to ascertain the extent of the portion of the suit-building in occupation of the landlord or the extent of the portion in occupation of the tenant to enable me to decide as to whether the accommodation now available to the landlord is or is not reasonably sufficient for his requirement and whether the portion in occupation of the tenant, if made available to the landlord, would go to serve his requirement to any appreciable extent. There is also nothing on record to show the extent and quantum of the businesses alleged to have been carried on by the original plaintiff and though PW 2, the Manager, orally stated that the original plaintiff was the dealer of Willys Jeeps as sole agent under Mahindra and Mahindra and also was dealer in spare parts of motor vehicles and also was agent for Jenson and N for Jenson and Nicholson Paints and also carried on repair works, no document whatsoever has been produced, nor any other witness was examined, to show either the existence or the extent of those businesses. I am afraid that no Court can be reasonably satisfied as to the reasonable requirement for further accommodation for any such alleged businesses on such bare oral statements when, in the very nature of the things, reliable documentary evidence or independent witnesses could easily be produced prove the existence and extent of those businesses. If, as already noted, the policy behind this Rent Control Act is to give more protection to the tenants, the policy would obviously be frustrated if eviction is decreed for the requirement for the alleged business of the landlord on the more ipse dixit on behalf of the landlord as to the existence, nature and extent of such business. ( 11 ) MR. Moitra has very strongly urged that Ext. P-5 contains a clear admission on the part of the tenant that the landlords require the premises for his bona fide occupation and that the suit ought to have been decreed on that evidence alone. Ext. P-5, wherein the old and outstanding dues between the parties were settled, mainly recorded the claims and counter-claim between the parties but the last paragraph therein appears to be as hereunder : -"the premises of the Gangtok Auto Works is urgently required by Tenzing and Tenzing to start their own garage and notice has already been served. Mr. Rajendra Lakhotia has agreed to vacate the premises by the end of September. Mr. Rajendra Lakhotia has agreed to vacate the premises by the end of September. " ( 12 ) THE second sentence would appear to indicate that the Defendant No. 3 agreed to vacate the premises, but as has been pointed out by this Court in some details in General Secretary, Dharma Chakra Centre v. Denzong Cinema (Civil Appeal No. 12 of 1984, decided on 30-5-1985) (reported in AIR 1985 Sikkim 17), after the Gangtok Rent Control and Eviction Act, 1956, agreement or notice to quit, or, for the matter of that, no ground other than those specified in the Act, can furnish a cause of action for ejectment of tenants. As to the alleged admission in the first sentence as to the requirement of the landlord, there is nothing on record to show as to whether the same was a record of what was said or felt by the original landlord or what was so said and felt by the Defendant No. 3. And then again, all that has been stated is urgent requirement of the landlord and an urgent requirement, by itself, is not necessarily bona fide or reasonable to warrant eviction. Further, the requirement referred to could only relate to the original landlord and, as already noted, such requirement may not be of any avail to the substituted landlords without proper connecting evidence to that effect. ( 13 ) NEITHER the original plaintiff, since deceased, came nor any of the present substituted plaintiffs has come to depose as witness to prove the alleged requirement and Mr. Pandit has submitted that since bona fide requirement is something subjective, non-examination of the person pleading requirement is fatal and has relied on a single-Judge decision of the Bombay High Court in Nanalal v. Samratbai, AIR 1981 Bom 1 in support of his contention. There are, no doubt, very clear and categorical observations in that decision which go to support the contention made by Mr. Pandit and even the single-Judge decision of the Calcutta High Court in Banka Behari v. Gour Mohan 85 Cal WN 548, relied upon by Mr. Moitra in his attempt to counter the contention of Mr. Pandit, contains observations to the effect that non-examination of the landlord in a case alleging bona fide requirement may be fatal, though a case of reasonable requirement may stand proved even without the evidence of the person alleging such requirement. Moitra in his attempt to counter the contention of Mr. Pandit, contains observations to the effect that non-examination of the landlord in a case alleging bona fide requirement may be fatal, though a case of reasonable requirement may stand proved even without the evidence of the person alleging such requirement. As already noted, the Gangtok Act in S. 4 uses the expression "bona fide" and not the expression "reasonable" and therefore, according to these Bombay and Calcutta decisions, non-examination of the plaintiff (s) was to be regarded as fatal. I have, however, and this I say with all respect, not been able to persuade myself to agree with the ratio of the observations in those two decisions and I am yet to understand as to why bona fide requirement warranting eviction of tenants under these pre-eminently pro-tenant legislations can remain only a subjective matter of the landlord and why bona fide requirement cannot be legally proved without the voice of the person alleging such requirement. But since in my view, for the reasons stated hereinbefore, the case of bona fide requirement even of the original plaintiff has not been satisfactorily proved on the evidence on record, this point need not detain me. ( 14 ) IN the result, the appeal is allowed and the decree appealed against is set aside and the suit is dismissed and the cross-objection preferred by the respondents is also dismissed. No order as to costs. Appeal allowed. --- *** ---