Judgment R. N. Prasad, J. 1. The defendant has filed this revision application against the judgment and decree dated 5.6.90 passed in Title Eviction Suit no.2 of 1989, whereby. the court decreed the suit on the ground of personal necessity. 2. The case of this plaintiff opposite party is that the defendant petitioner was inducted tenant on a monthly rental of Rs.350/-. He advanced Rs.17.000/- on the condition that in case he fails to pay the rent the opposite party would get the rent adjusted from the said advance deposit. The petitioner did not pay the rent from 1.8.84, i. e. , the date of the tenancy and asked the opposite parly to adjust the rent from the said advance deposit. The plaintif opposite party were doing business jointly with their brothers but they did not want to continue their business jointly and hence they are in need of the suit premises for starting a business of tailoring in the suit premises. 3. The case of the petitioner is that the opposite party is not in bona fide need of the suit premises. They have many vacant shops which can satisfy the need of the opposite party. They want to evict the petitioner from the suit premises only with a view to let out the same. 4. Learned counsel for the petitioner at the very outset contended that the court has committed error in decreeing the suit. He pointed out that the court on consideration of the materials available on the record came to the conclusion that the petitioner has been able to establish that the plaintiffs have got many vacant shops and their main business is to let out shops, but in such a situation has failed to consider the legal requirements as enunciated in case of M. M. Quasim vrs. Manohar Lal Sharma and others (A. I. R.1931 S. C.1113 ). However, learned counsel for the opposite party submitted that there is no evidence on the record to show that the vacant shops were of the opposite party. According to him even if shops are vacant, then also the plaintiffs opposite party are entitled to choose any of them. A tenant cannot direct a landlord to choose a particular shop and not the shop of which he is in occupation. 5. According to him even if shops are vacant, then also the plaintiffs opposite party are entitled to choose any of them. A tenant cannot direct a landlord to choose a particular shop and not the shop of which he is in occupation. 5. Having considered the submissions made by the parties, this much is manifest that the suit was filed for eviction of the petitioner on the ground of personal necessity. In the written statement the plea was taken by the petitioner that the opposite party had many vacant shops which could satisfy the need of the opposite party. Further more, in the written statement a plea was also taken that if at all the plaintiffs were in need of the suit premises, he is ready to vacate the same, but instead of the suit premises the plaintiffs may give the other vacant shop to the petitioner. The court has also come to the conclusion that the petitioner has succeeded in establishing that the plaintiffs have got many vacant shops and their main business is to let out shops, but has rejected the plea of the petitioner on the ground that the plaintiffs have a right to choose the premises for their personal use and the defendant has no right to direct them to choose a particular shop. In case of M. M. Quasim Vrs. Manohar Lal Sharma and Others (A. I. R.1981 S. C.1113 (supra)it has been held. ". . . When examining a case of personal requirement, if it is pointed out that there is some vacant premises with the landlord which he can conveniently occupy, the element of need in his requirement would be absent. To reject this aspect by saying that the landlord has an unfettered right to choose the premises is to negative the very raison detre of the Rent Act. Undoubtedly, if it is shown by the tenant that the landlord has some other vacant premises in his possession, that by itself may not be sufficient to negative the landlords claim but in such a situation the Court would expect the landlord to establish that the premises which is vacant is not suitable for the purpose of his occupation or for the purpose for which he requires the premises in respect of which the action is commenced in the Court. " 6. " 6. It is, thus, manifest that the question involved in the case has been settled by the apex Court that the landlord has no unfettered right to choose and in such a situation the plaintiff has to establish that the premises vacant is not suitable for his purpose. 7. However, it appears from the judgment impugned that the aforesaid aspec of the matter has not been considered by the court below and ,has decided the case on the ground that the plaintiffs have the right to choose which cannot be dictated by the defendant. 8. Furthermore, it appears that the court has decided the question of partial eviction only on the basis of size of the suit premises and hold that partial eviction is not possible. This is directly against the law laid down by the Supreme Court in Krishna murari Prasad Vrs. Mitar Singh (A. I. R.1994 S. C.489 : 1994 (1) PUR (SC) 88), wherein it has been held that the question of partial eviction is a question of fact in such case. This enquiry has to be made by the court after reaching the conclusion that the land-lords requirement for occupation of the premises set up by him has been made out. In failing to do so the court below overlooked this statutory requirement. Thus it is obvious from the aforesaid decision that in each case the court has to make an enquiry on the basis of evidence available on the record as to whether the partial eviction would satisfy the need of the plaintiff. From the discussions made above, it is apparent that the findings of the trial court on the question of personal necessity as well, as the partial eviction are not in accordance with the legal proposition of law and the same cannot be sustained in law. Accordingly, the application is allowed and the impugned order is set aside. The case is remitted to the trial court for deciding the case afresh after hearing the parties, in accordance with law. The parties shall be at liberty to lead evidence in support of their respective case. 9. Accordingly, the application is allowed and the impugned order is set aside. The case is remitted to the trial court for deciding the case afresh after hearing the parties, in accordance with law. The parties shall be at liberty to lead evidence in support of their respective case. 9. Before parting with, it is pertinent to mention that by order dated 15.4.1991 this court directed the petitioner to deposit the rent from the date of institution of the suit till March, 1991 within a period of fifteen days as provided under section 15 of the act itself and the future rents by the fifteenth day of the month succeeding. The opposite party was also permitted to withdraw the amount. However, this Court specifically stated that the order would be subject to the final result of the civil revision application. 9. Learned counsel for the petitioner pointed out that it is an admitted case of the plaintiffs that Rs.17,0007- was paid as an advance with the condition to adjust the same towards rent if not paid by the petitioner. However, learned counsel for the opposite party is not in a position to say as to what was the arrears. In such a situation it is difficult to say anything about the arrears of rent. Hence the court below is directed to decide this matter separately and in this connection also the court may take evidence if required for determination. It is also made clear that in case the amount deposited by the petitioner as arrears of rent is found to be in excess, the petitioner shall be entitled for the refund of the same .