JUDGMENT - F.I. REBELLO, J.:---Rule. 2. Learned Counsel for the respondents waive service. By consent. Rule made returnable and heard forthwith. 3. The petitioner tenant has filed this petition to impugn orders dated 5th April 1997 passed in Regular Civil Suit No. 217 of 1989 of the Joint Civil Judge, Junior Division, Wai and judgment dated 5th September, 1997 passed in Regular Civil Appeal No. 241 of 1997 by the Second Additional District Judge, Satara. 4. An application for eviction of the petitioner was filed by present respondent No. 1 and the original applicant No. 2 Smt. Maltibai Narhari Karanjkar (since deceased) represented by present respondent Nos. 2-A to 2-F. Defendant No. 2 in the said application was another brother who is now represented by legal heirs who are respondent Nos. 3-A to 3-C. Defendant No. 4 was the youngest brother who is present respondent No. 4. The application was moved on the ground that the original applicants need the premises for maintaining the family and for bona fide purpose of their business. It was contended that respondent No. 1 herein had obtained a Diploma in Architecture and desired to carry out the said profession. The petitioner herein contested the claim of the original applicants. As already pointed out original applicant No. 1 came to expire during the pendency of the proceedings before the Civil Judge, Junior Division. 5. By judgment dated 5th April 1997, the Civil Judge, Junior Division came to the conclusion that the petitioner had made out a case for bona fide personal requirement and further held that the hardship occasioned to the original applicant would be more than that would be occasioned to the petitioner herein. The Civil Judge in so holding was impressed by the fact that the petitioner herein had purchased a built up property i.e. F.P. No. 27 which was near the market place and later on sold the same to two persons. The learned Judge further held that the petitioner was in actual possession over F.P. No. 393/2 and that place was available to him. Learned Judge also considered the evidence. 6. In appeal, the Appellate Court confirmed the findings that the original applicant had made out a case of user of bona fide personal requirement and further that greater hardship would be occasioned to the original applicants than to the petitioner. Learned Judge also considered the evidence. 6. In appeal, the Appellate Court confirmed the findings that the original applicant had made out a case of user of bona fide personal requirement and further that greater hardship would be occasioned to the original applicants than to the petitioner. The Appellate Court held from the evidence on record the entire length and width of the property was 37' x 7' out of which 18' x 7' was in possession of the petitioner and that the original applicant had in his possession area admeasuring 19' x 7'. Learned Appellate Court further observed that the petitioner was in possession of F.P. No. 393/2 and that it had about 440 sq. ft. constructed area plus open place of about 350 sq. ft. The learned Judge also observed that the petitioner has purchased F.P. No. 27 in the year 1983 but had sold the same during the pendency of the proceedings on 13th January 1992 and 13th April 1993; and that this area was in the Gaothan area of the town. 7. Learned Counsel for the petitioner contends as under :--- (a) That the courts below failed to consider that apart from the original applicants there were other co-owners who had not joined the proceedings and consequently the claim for bona fide requirement made by some of the co-owners only was not maintainable; (b) That at any rate Rent Controller had not considered the effect of the proviso to sub-section (2) of section 13 of the Bombay Rent Control Act. It is further contended that there is a statutory duty cast on the Rent Controller to comply with the requirement of proviso to sub-section (2) of section 13 before passing an order of eviction under section 13(1)(g) of the Rent Act. 8. On the other hand Counsel for the respondents contends that one co-owner could have maintained the proceedings for eviction. At any rate in instant case all the co-owners were parties to the proceedings either as applicants or respondents and further these respondents had supported the case of the applicants for bona fide requirement. It is further pointed out that there is no statutory duty cast on the Rent Controller to frame an issue in so far as the proviso to sub-section (2) of section 13 is concerned. It is further pointed out that there is no statutory duty cast on the Rent Controller to frame an issue in so far as the proviso to sub-section (2) of section 13 is concerned. At any rate it is pointed out all that the Controller had to do was to satisfy himself that the premises were not capable of being divided. In the present case this issue was not even raised by the petitioner and even otherwise considering the material on record and even if the Controller or the Appellate Authority has not considered the same, this Court itself should decide the issue without resorting to remand as an order of remand would be fruitless in such circumstances. 9. Dealing with the first contention on behalf of the petitioner that all co-owners have to be made parties. Counsel has relied on the judgment of the Full Bench of the Gujarat High Court in the case of (Nanalal Girdharlal and another v. Gulamnabi Jamalbhai Motorwala and others)1, reported in 1972(13) Gujarat Law Reporter pg. 880. It is sought to be set out in the said judgment that a mere Rent Collector cannot file an application for eviction on the ground of bona fide requirement when there are other co-owners. In the present case, we need not be detained by the said argument both on facts and on law. The Rent Act defines landlord. The respondents - original applicants had pleaded that the original applicants and defendant Nos. 2 and 3 were the owners and the premises were rented to the petitioner herein. In answer to para 2 in the written statement, the petitioner pleaded that the suit premises were given on rent by applicant No. 2 to the petitioner herein as the tenant. In other words one of the co-owners was accepted as the landlord of the premises. In para 10 of the judgment in the case of Nanalal Girdharlal another (supra) the Full Bench after holding in para 9 that when two or more co-owners have granted a periodic tenancy it can be determined by a notice to quit given by all co-owners and that this would so irrespective whether the co-owners are joint-owners or tenants in common. However, in para 10 the Full Bench carved out two categories which stood apart and to which the earlier observations/rule would not apply. However, in para 10 the Full Bench carved out two categories which stood apart and to which the earlier observations/rule would not apply. One was where the landlord grants lease to the tenant claiming to be the sole owner of the property though in fact he is only one of the co-owners and the other category of cases where the landlord is a co-owner but while granting the lease does not disclose that he is acting as a co-owner on behalf of himself and the other co-owners and grants a lease by himself. In the present case one of the co-owners had granted lease to the petitioner and the petitioner has taken the premises on rent. Therefore this case would come within the exception carved in para 10 of the said judgment itself. The judgment of the Full Bench of the Gujarat High Court was considered by the Apex Court in the case of (Shri Ram Pasricha v. Jagannath and others)2, reported in A.I.R. 1976 S.C. 2335. The Apex Court in para 29 of the said judgment has observed as under :--- "29. Jurisprudentially, it is not correct to say that a co-owner of a property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part-owner or a fractional owner of the property. The position will change only when partition takes place. It is, therefore, not possible to accept the submission that the plaintiff who is admittedly the landlord and co-owner of the premises is not the owner of the premises within the meaning of section 13(1)(f). It is not necessary to establish that the plaintiff is the only owner of the property for the purpose of section 13 (1)(f) as long as he is a co-owner of the property being at the same time the acknowledged landlord of the defendants." Adverting to the Full Bench of the Gujarat High Court, the Apex Court noted that the Full Bench of the Gujarat High Court itself had taken note and excluded two categories therein and that the rule of estoppel would apply to those two categories. In the present instant case in view of the averments by the petitioner himself that original applicant No. 2 was a landlord and she admittedly was a co-owner the judgment of the Apex Court in the case of Shri Ram Pasricha will apply. Even otherwise the petitioner is estopped from now contending that the proceedings has not been initiated at the instance of all co-owners when he accepted the original applicant No. 2 as the landlord. 10. That brings us to the second question as to whether a duty is cast on the Court to consider the proviso to sub-section (2) of section 13 of the Bombay Rent Act. Sub-section (2) of section 13 of the Rent Act reads as under:- "No decree for eviction shall be passed on the ground specified in Clause (g) of sub-section (1) if the Court is satisfied that, having regard to all the circumstances of the case including the question whether other reasonable accommodation is available for the landlord or the tenant, greater hardship would be caused by passing the decree than by refusing to pass it. Where the Court is satisfied that no hardship would be caused either to the tenant or to the landlord by passing the decree in respect of a part of the premises, the Court shall pass the decree in respect of such part only." Thus it is clear from a look at the language of the proviso to section 13(2) itself that when the Court is satisfied that no hardship would be caused either to the tenant or to the landlord by passing the decree in respect of a part of the premises, the Court shall pass the decree in respect of such part only. The proviso will have to be considered with sub-section (2) itself which sets out that the Court must be satisfied having regard to all the circumstances of the case including the question whether other reasonable accommodation is available for the landlord or the tenant and whether greater hardship would be caused by passing the decree than by refusing the same. Reliance was initially placed on the judgment of the Single Judge of this Court in the case of (Bhaskar Digambar Choudhary v. Bhagwan Vishwanath Fadnis)3, reported in 1976 Bom.L.R. 454. Reliance was initially placed on the judgment of the Single Judge of this Court in the case of (Bhaskar Digambar Choudhary v. Bhagwan Vishwanath Fadnis)3, reported in 1976 Bom.L.R. 454. The learned Single Judge of this Court while considering the said proviso was pleased to hold that the proviso cast a duty on the Court before passing a decree of eviction in respect of the entire premises to satisfy itself that no hardship would be caused either to the tenant or to the landlord by passing a decree in respect of a part of the premises only and if it comes to the conclusion that no such hardship would be caused then the Court has to pass a decree for eviction in respect of such part of the premises only. It was further observed that it was necessary for the trial Court to raise an issue in terms of the said provision even if the parties to the proceedings have not raised the said issue. The said judgment of the learned Single Judge came up for consideration before the Division Bench of this Court in the case of (Kisanrao Madhavrao Bartakke v. Narayan Dhondi Shete)4, reported in A.I.R. 1979 Bombay 74. The matter was referred to the Division Bench by a learned Single Judge as he found that there is a conflict between two judgments of learned Single Judge of this Court which included the judgment in the case of Bhaskar Digambar Choudhary (supra). The Division Bench in para 24 held as under :--- "24. These are all the judgments which are cited before us. Having considered the arguments in depth, we are of the view that there is no statutory obligation to frame a particular issue covering the provisions of the second part of sub-section (2) of section 13 of the Rent Act. On the contrary when the total circumstances of a case are being considered by the Court in the light of the pleadings of the parties and the evidence led, it is enough if the Court is aware that while passing a decree for eviction against a tenant a division of the premises is permissible and under certain circumstances it can bring about a situation where the needs of both the landlord and tenant are satisfied without there being any hardship on either of them. If the Court disposes of the case with the awareness of these provisions either by express discussion or by implication where the facts speak for themselves, the Rent Court had done its duty properly and there is no infirmity of any kind either in the procedure or in the substantive disposal of the dispute." Thus it is clear that what is required is that the Court must be aware of the provisions either by express discussion or by implication where the facts speak for themselves. Learned Counsel sought to rely on the judgment of the Apex Court in the case of (Rahman Jeo Wangnoo v. Ram Chand and others)5, reported in A.I.R. 1978 S.C. 413 for his contention that the Apex Court in respect of a similar provision while interpreting the provisions of Jammu and Kashmir Houses and Shops, Rent Control Act has held that the proviso mandates the Court to consider weather partial eviction as contemplated therein should be ordered or the entire holding should be directed to be evicted. Counsel contends that this shows that it is mandatory and the Court is duty bound to consider whether partial eviction as contemplated therein should be ordered or the entire holding should be directed to be evicted. In my respectful opinion, this observation of the Apex Court in no way conflicts with what has been laid down by the Division Bench of this Court in the case of Kisanrao M.Bartakke (supra). The Division Bench of this Court has merely explained the nature of the duty cast on the Court. It is held that the record must disclose that the Court was aware of its duty and has considered the same either by express discussion or by implication. Reliance is also placed on a judgment of the Single Judge of the Gujarat High Court in the case of (Jagmohandas Vithaldas Kansara v. Mohanlal Maneklal Tailor)6, reported in 1994 Bom.R.C. 101. There the Court was examining section 13(2) of the Bombay Rent Act. The Court observed that the right given to the landlord under section 13(1)(g) are circumscribed by the provisions contained in section 13(2) of the Act. The Court observed that merely because greater hardship would be on the shoulders of the plaintiff landlord by the refusal of the decree, the decree for eviction could not and should not be passed. The Court observed that the right given to the landlord under section 13(1)(g) are circumscribed by the provisions contained in section 13(2) of the Act. The Court observed that merely because greater hardship would be on the shoulders of the plaintiff landlord by the refusal of the decree, the decree for eviction could not and should not be passed. The Court is also required to take into consideration as to whether the passing of eviction decree in respect of the part premises only would serve the purpose. This judgment again expressly confirms what has been set out earlier that a Court is bound to consider before passing the decree as to whether eviction can be ordered only in respect of a part of the premises. A learned Single Judge of this Court in the case of (Narsinha Narayan Shirodkar v. Vasant Ganpat Shinde and another)7, reported in 1996 Bom.R.C. 152 on a similar question which arose under the same section of the Rent Act held, that in order to consider this aspect it ought to be pleaded before the trial Court or raised before the Appellate Court. The learned Single Judge also observed that apart from that there was no evidence also available on that point. 11. From a consideration of all the judgments which have been considered as referred to earlier, it is clear that a mandate is cast on the Court before directing eviction under section 13(1)(g) of the Bombay Rent Control Act to consider, not only section 13(2) by itself but also the proviso. In other words whether the decree should be in respect of the entire premises or part of the premises has to be borne in mind while considering the hardship that would be occasioned. Ordinarily a duty is cast on the plaintiff/applicant to support the contention that hardship would be occasioned to him if a decree is not passed. The proviso dealing with the situation as to whether the Court while ordering eviction should direct eviction only in respect of a part of the premises necessitates leading of evidence. In other words before so holding there must be material before the Court. In the absence of material though the Court is bound to consider the proviso the Court cannot compel the parties to lead evidence on the point. In other words before so holding there must be material before the Court. In the absence of material though the Court is bound to consider the proviso the Court cannot compel the parties to lead evidence on the point. When a duty is cast on the Court, there need not necessarily be pleadings to that effect, however, there must be evidence on record. In such a case, it will be a duty cast on the tenant to bring cogent material evidence on record and show that even if greater hardship is occasioned to the landlord the same could be obviated by granting him possession of only part of the premises or even otherwise from the evidence brought by the landlord the proviso is attracted. In the case before us, the Appellate Court has come to the conclusion that the premises in possession of the petitioner admeasure 18' x 7'. A sketch of the property has also been placed on record. It has already come on record that Architect requires some place for placing the materials required to carry on the profession of the Architect including a drawing table and place for visitors. The sketch on record shows that the only way in which the property can be divided is by a vertical division. If it is so divided the breadth of the property at the highest would be slightly more than 3 feet for each division. It is impossible to conceive a situation where any of the parties could make use of the premises either as an Architect's office or for that matter for the business of the petitioner which he is presently running. In my view, apart from that, it is implicit in the judgment of the Appellate Court that the Court has noted and/or considered the proviso to sub-section (2) of section 13 of the Rent Control Act whilst considering the requirement of an Architect's office including drawing table and the dimensions of the property that the Court has rejected the case for part possession. 12. In view of the above, there is no reason to interfere with the concurrent findings of fact by the courts below that the respondents/original applicants had made out a case that the applicant reasonably and bona fidely required the premises for their own occupation and that the hardship occasioned to the original applicant/landlord would be greater than that of the petitioner herein. In view of the above. Rule discharged. In the circumstances of the case, there shall be no order as to costs. 13. Learned Counsel for the petitioner seeks stay of the order of the Court as he is running his business in the premises for a long time. Considering the above, respondents not to take steps to evict the petitioner for a period of 12 weeks from today on his filing the usual undertaking with this Court within two weeks from today. Petition dismissed.