R.L. Gupta, J.
1. The miscellaneous second appeal has been preferred, by the defendant Jai Narain against the judgment and decree of the learned District Judge, Merta, dated 9/12/1976.
2. The plaintiff-respondent Pannalal filed a suit in the Court of Civil Judge, Nagaur for eviction and arrears of rent regarding the suit shop described in the plaint-inter alia on the ground, of reasonable and bonafide necessity iv, well, as on the ground of subletting and defaults in the payment of rent. The suit of the plaintiff was dismissed by the learned Civil Judge, Nagaur, by his judgment and decree dated 19/9/1973, so far the prayer, of ejectment was concerned; both the grounds i.e. of subletting and bonafide and reasonable necessity were not accepted aggrieved by the judgment and decree of the Civil Judge, Nagaur, the plaintiff preferred an appeal before the District Judge, Merta. While the appeal, was pending before the District Judge, an amendment was made in Section 14 of the Rajasthan Premises (Control of Rent end Eviction) Act, 1950, (hereinafter referred to as 'the Act'). After the amendment, Section 14(2) runs as under:
(2) No decree for eviction on the ground set forth in Clause (h) of Sub-section (1) of Section 13 shall be passed if the court is satisfied that, having regard to all the circumstances of the case, including the question whether other reasonable accommodation is available to 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 to the premises, court shall pass the decree in respect of such, part only.
3. In view of this amendment, the learned Counsel for the plaintiff filed an application for amendment of the plaint for adding para No. 7A, regarding to the comparative greater hardship to the plaintiff if; the suit shop is not vacated. The learned District Judge considered this, amendment of the plaint necessary and he, therefore, allowed the amendment. He also held that in view of this amendment, it has become necessary to remand the case to the lower court for re-trial. He accordingly allowed the appeal of the plaintiff. The judgment and decree of the learned Civil Judge were set aside and the case was remanded to the trial court with the direction that the plaintiff shall be asked to file the amended plaint, the defendant be asked to file the amended written statement and thereafter the necessary issues be framed and the case be disposed of according to the law after taking the evidence of the parties. It is against this judgment and decree of the learned District Judge dated 9/12/1976 that this appeal has been preferred by the defendant appellant.
4. I have heard the arguments of the learned Counsel for the parties.
5. The first contention of the learned Counsel for the appellant is that the Civil Judge has dismissed the suit on the ground that the plaintiff has no reasonable and bonafide necessity of the suit shop, the point of going into the question comparative hardship does not, therefore, arise till the finding of absence of bonafide and reasonable necessity arrived at by the trial court, is set aside. The learned District Judge should have first recorded a finding on the question of bonafide and reasonable necessity of the suit shop to the plaintiff. In case his findings were in favour of the plaintiff on the question then alone he could have remitted the case for decision of issue regarding comparative hardship. Without recording that finding, the District Judge has no jurisdiction to remand the case. His second contention is that the learned District Judge has committed an error in setting aside the judgment and decree of the learned Civil Judge and remanding the case as a whole for retrial. He could only remit an issue on the question of greater hardship to the trial court under Order 1 Rule 25 CPC and that too only after he had arrived at a finding on the question of reasonable and bonafide necessity in favour of the landlord plaintiff.
6. As regards the first contention, it can be said that it is not tenable. The question of bonafide and reasonable necessity as well as the question of comparative hardship are interlinks with each other. It is of course true that the plaintiff has to satisfy the court on two counts : firstly there is bona fide and reasonable necessity of the suit premises and secondly that in case the decree for eviction is not passed in his favour he would suffer greater hardship & inconvenience than that to be suffered by defendant tenant if he is evicted. Nonetheless the question of bonafide and reasonable necessity and the question of greater hardship are inter linked with each other and it would not be desirable that they are decided piece-meal. The first contention has, therefore, no force.
7. The next contention of Mr. Parekh is that the learned District Judge should not have remanded the whole case for fresh trial, he could have only remitted the case to the trial court for the trial of issue regarding the question of comparative hardship under Order 41 Rule 25 C.P.C. The District Judge without recording any infirmity in the judgment of the trial court, could not have set aside the judgment and decree simply on the ground that the question of comparative hardship has also arisen due to the amended provisions of the Act, which also needs determination.
8. Mr. Mardia, the learned Counsel for the respondent has argued that keeping in view the provision of Order 41 Rule 23 C.P.C. as amended in the State of Rajasthan the lower appellate court has not committed any illegality in law in setting aside the judgment and decree of the trial Court and remanding the whole case for retrial.
9. The short controversy, therefore, is whether in the facts and circumstances of the case the first appellate court should have framed an additional issue on the point of comparative hardship and remitted the case under Order 41 Rule 25 CPC to the trial court to record evidence and finding on that issue and then resubmit the record to the appellate court for decision of the appeal on merits, or whether it should have set aside the judgment and decree of the trial court as a whole and remanded the case for fresh trial after framing an addition issue regarding comparative hardship, as had been done in the present case.
10. The point has come up before this Court in various cases directly or indirectly. In some cases, this Court framed an issue and set aside the judgment as a whole and remanded the case for fresh trial including on the issue newly framed regarding comparative hardship. In some cases, this Court thus framed an issue regarding comparative hardship and remitted the case for trial of that issue only and directing the resubmission of the finding to the appellate court.
11. Learned Counsel for the appellant has relied on Satyapal v. Sorad Kumar 1976 WLN (UC) 244; Roop Chand and Ors. Firm Balu Ram Phool Chand 1976 WLN (UC) 347; Bahirumal Basaev and Ors. v. Lalit Kishore 1976 WLN 112; General Auto Agencies v. Hazarising 1977 WLN 74; Agarchand v. Badrids 1977 WLN 457; and Bhikamachand and Anr. v. Tara Chand and Anr. .
12. The learned Counsel for the respondent; on the other hand, had relied upon Prabhashankar v. Rukmani 1976 RLW 3; Kushalchand and Ors. v. Motilal 1976 WLN (UC) 23; Firm Khila Ram Jawahar Lal v. Smt Ghiss Bai 1976 WLN (UC) 68; Mehta Mansuk Lal v. Modi Fatehlal 1976 WLN (UC) 69; Ghanshyam v. Bhagwandas 1976 WLN (UC) 96; Bhagwan and Ors. v. Kanmal 1976 WLN 75; and Mishri Lal v. Shiv Charan 1976 WLN 662.
13. This point came up for consideration before Hon'ble S.N. Modi, J. in Bahirumal Basdev v. Lalit Kishore 1976 WLN 112 where the reference was made to Prabhashankar v. Smt. Rukmari 1976 RLW 3 and Bhanwarlal v. Nathmal 1976 RLW 59 and my learned brother Hon'ble Modi. J., observed that those cases were remanded under Section 151 CPC. He further observed, 'A bare reading of those decisions will reveal that the order of remand under Section 151 CPC in both the cases was not a considered pronouncement on the matter after taking into consideration the relevant provisions of law. In other words, neither in Prabhashankar's case 1976 RLW 3 nor in Bhanwarlal's case 1976 RLW 59 this Court gave considered opinion on the question whether case ought to be remanded under Section 151 C.P.C. or an issue should be referred for trial under the provision of Order 41 Rule 25 C.P.C. In the absence of considered pronouncement; I am of opinion that there is no binding precedent which makes it obligatory on this Court to refer the question to a Division Bench' After discussing the provisions of Order 41 Rule 23, 24, 25 and 27 C.P.C. Hon'ble Modi, J. came to the conclusion that the case squarely falls within the purview of Order 4l Rule 25 C.P.C. and an issue was. therefore, framed in regard to the question of comparative hardship and the case was remanded to the lower appellate court for recording additional evidence of the parties on the newly framed issue and to return the evidence to this Court together with its finding thereon and the reasons there for.
14. In Mishri Lal's case 1976 WLN 662, the learned lower appellate court remanded the whole suit to the trial court. This Court held that the learned lower appellate court was justified in remanding the suit to the trial court in the present case in as much as the parties should be allowed an opportunity to amend their pleadings, if they so desire, keeping in view the provisions of Section 14(2) of the Act. This Court, however, made a rider that the remand of the suit to the trial court should not be allowed to be utilised for the purpose of adducing evidence in respect of other issues which had already been framed in the suit or to fill in the lacuna in the suit but the evidence, which will not be permitted to be adduced in the trial court shall be confined only to the new issue that may be framed with reference to the amended provision of Section 14(2) of the Act. As regards Bahirumal Basdev's case 1976 WLN 112, it was observed that in that case, the learned Judge took into consideration the unamended provision of Order 41 Rule 23 C.P.C. The aforesaid provisions of Order 1 Rule 23 CPC were amended, so far as the Rajasthan is concerned, on March 11, 1965. The provisions of Order 41 Rule 23 CPC as amended are couched in very wide language and the fetter that remand could only on a preliminary point no longer subsists. N view of the Circumstances of Mishrilal's case, Hon'ble D.P. Gupta, J. held that the remand of the suit as a whole by the learned lower appellate court was justified.
15. Mishrilal's case 1976 WLN 662 was decided on 12/5/1976. Subsequently, such a matter again came up for consideration before Hon'bel D.P. Gupta, J. on 9th September 1977 in Agarchadn v. Badridas 1977 WLN 457. In that case, the learned first appellate court, instead of remanding the whole case, framed an issue on the question of comparative hardship and remitted the new issue, so framed to the trial court for recording the evidence in respect there of and sending its finding in respect thereto. Against that order of the first appellate court, a revision was preferred before this Court. It was urged by the learned Counsel for the petitioner that the first appellate court should have set aside the decree fro ejectment and should have remanded the entire suit to the trial court for a fresh decision under the provision of Order 1 Rule 23 CPC (as amended in Rajasthan) and should not have remitted only the newly framed issue to the trial court under Order 41 Rule 25 CPC and Mishrilal's case 1976 WLN 662 was relied upon by the learned Counsel in support of his aforesaid submission. Hon'ble D.P. Gupta, J. in Agarchand's case observed that in such cases, the appellate court enjoys a discretion under which it may either frame a new issue relating to the question of comparative hardship of parties, and remit the same to the trial court under Order 41 Rule CPC on in proper cases it may set aside the decree and remand the entire case to the lower court with the discretion to allow the parties an opportunity of amend their pleadings, frame as issue relating to the question of comparative hardship, then allow the parties an opportunity to lead evidence in respect thereof & to decide the suit afresh. The discretion so vested in the appellate court has to be exercises in a judicial manner and not in any arbitrary fashion. The point decided in Mishrilal's case 1976 WLN 662 was also made clearly under stoop that it was not held in Mishrilal's case 1976 WLN 662 that the only course open to the appellate court in such cases is to remand the case under the amended provisions of Order 1 Rule 23 CPC but what has been held in that case is that besides the provisions of remand contained in Order 41 Rule 25 CPC it also permissible to the appellate court, in proper cases, to pass an order of remand under the amended provisions of Order 1 Rule 25 CPC as well. It was further observed that the view taken in Mishrilal' case 1976 WLN 662 is not in conflict with the view expressed in Bahirumal's case 1976 WLN 112. The revision application was in consonance with that which was adopted by the Division Bench in General Auto Agencies's case 1977 WLN 74.
16. The matter also came up for consideration before Hon'ble S.N. Modi J., in Roopchand and Ors. v. Firm Balu Ram Phoolchand 1976 WLN (UC) 347. In this case again Hon'ble Modi J., following the decision of Bahirumal Basdev's case 1976 WLN 112, considered it proper to remand the issue to the lower court under Order 1 Rule 25 CPC and not to remand the case as a whole under Order 41 Rule 23 CPC or under Section 151 C.P.C. The order of the lower appellate court remanding the whole suit was, there, set aside and the lower appellate court was directed to decide the appeal on merits in accordance with law after remitting the issue regarding comparative hardships for the trial of that issue and send its finding thereon the reasons therefore.
17. In General Auto Agencies, Jaipur v. Hazarisingh 1977 WLN 74, the procedure followed by the Division Bench of this Court was that an issue was firmed relating to comparative hardship and the case was remitted to the trial court with direction that it shall give an opportunity to the parties to lead their evidence and then return the same to this Court along with its findings thereon within a particular period.
18. In the present case, an application for amendment of the plaint has been made and the same was accepted by the first appellate court and the plaint was showed to be amended. More over, such an enquiry regarding reparative hardship has been necessitated by the provisions of the amended provision of the Act. Whether the pleadings are amended or not in regard thereto the trial court has to decide this question, and even it is not necessary to afford an opportunity to amend the pleadings to as to incorporate the question of comparative hardship in the plaint Bahirumal Basdev v. Lalitkishore. The learned first appellate court has not yet gene into the case and no infirmity in the judgment of the trial court in regard thereto has been yet recorded, it was therefore, not proper and justified for the learned first appellate court to have set aside the judgment and decree of the learned trial court and should have remanded the whole case for retrial. The proper course in such cases, should be as followed by the Division Bench of this Court in General Auto Agencies's case 1977 WLN 74.
19. The alternative submission of Mr. Parekh that in case the court, is inclined to take a view that there is any conflict in the decision of this Court on this point as to correct procedure to be followed in such cases, the court may make a reference to Division Bench, has no force in view of the course adopted by the Division Bench of this Court in General Auto Agencies's case 1977 WLN 74, Hon'ble D.P. Gupta, J., has also observed in Agarchand's case that there is no conflict in the views expressed in Mishrilal's case 1976 WLN 662 & Bahirumal's case. In his view of the matter, it is not necessary to refer the matter to a Division Bench. The learned first appellate court was not justified in setting aside the judgment and decree of the trial court on all the issues without entering into the examination of those issues. The proper course to adopt was to frame the issue regarding comparative hardship and remit the case for the trial of that issue.
20. I accordingly allow the appeal, set aside the order of remand passed by the leaned lower appellate court and direct that it shall decide the appeal on merits in accordance with law after remitting the issue quoted below to the trial court with the direction that the trial court shall record additional evidence of the parties on the issue and shall return the evidence together with its finding thereon and reasons therefor with in a particular period of time to the first appellate court. It may be mentioned here that the evidence already on the record may also be read in evidence in deciding the remitted issue as the question of comparative hardship and that of reasonable and bonafide necessity are more and less intermingled questions. The issue to be remitted would read as under:
Whether having regard to all the circumstances of the case, including question whether any other reasonable accommodation is available to the landlord or to the tenant, greater hardship would be caused by passing the decree than by refusing to pass it.
21. Having regard to the circumstances of the cafe I leave parties to beer their own costs in this appeal. The parties are directed to appear before District Judge, Merta on 24/4/78.