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Kalu Lal and ors. Vs. Mangilal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Regular Second Appeal No. 404/1973
Judge
Reported in1978WLN(UC)64
AppellantKalu Lal and ors.
RespondentMangilal
Cases ReferredGeneral Auto Agencies v. Hazari Singh
Excerpt:
.....tenant if he is evicted; nonetheless, the question of bonafide and reasonable necessity end the question of comparative hardship are interlinked with each, other and it would not be desirable that they are decided piece, meal.;(b) civil procedure code - order 41 rules 23 & 25--and rajasthan premises (control of rent & eviction) act, 1950--sections 13(1)(h) & 14(2)--comparative hardship--held, proper course is to frame an issue and remit case for retrial.;the proper course to be followed should be as followed by the division bench of this court in general auto agencies v. hazari singh 1977 wln 74. the procedure followed by the division bench of this court was remitted to comparative hardship and the case was remitted to the trial court with the direction that it would give..........this court on 15-4-1977 praying that, in view of the above amendment, an additional issue on the question of comparative hardship be framed and the same may be remitted to the remitted to the court below for giving a finding after recording evidence on that issue. the arguments were heard in this connection. it has not been disputed that in this position of amended law, the court has to be satisfied that greater hardship would be caused by passing the decree then by refusing to pass it and this matter needs to be enquired into. but the learned counsel for the respondent has opposed this application on two grounds:(1) that both the courts below have held that there is no bonafied and reasonable personal necessity of the suit shop for the plaintiffs. it is, therefore, necessary for the.....
Judgment:

R.L. Gupta, J.

1. The appellants who are the plaintiffs, landlords of the suit shop situated at Chittorgarh, filed a suit against the respondent defendant tenant, for eviction and arrears of rent on the ground of personal bonafide and reasonable necessity for the suit shop. The suit was decided by the learned Additional Civil Judge, Partabgarh, headquarter at Chittorgarh. It was held, that the plaintiffs have, no bonafide and reasonable necessity for the suit for their personal use and the suit of the plaintiffs was dismissed. An appeal from the judgment and decree of the learned Additional Civil Judge was preferred before the District Judge, Partabgarh. The learned District Judge, Partabgarh dismissed the appeal of the plaintiffs and upheld the judgment and decree passed by the Additional Civil Judge, Chittorgarh. The second appeal has now been preferred before this Court by the plaintiffs appellants against the judgment and decree passed by the District Judge in First Appeal affirming the judgment and decree of the learned Additional Civil Judge.

2. During the pendency of this appeal an amendment was made in Section 14 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 by the Rajasthan Amending Act No. 14 of 1976. In Section 14 Sub-section (2) was newly added which runs as follows:

(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 than by refusing to pass it.

Where the court is satisfied that no hardship world be caused either to the tenant or to the landlord by a passing the decree in respect of a part of the premised, the court shall pass the decree in respect of such part only.

3. In view of the amendment, the learned Counsel for the appellant moved an application before this Court on 15-4-1977 praying that, in view of the above amendment, an additional issue on the question of comparative hardship be framed and the same may be remitted to the remitted to the court below for giving a finding after recording evidence on that issue. The arguments were heard in this connection. It has not been disputed that in this position of amended law, the court has to be satisfied that greater hardship would be caused by passing the decree then by refusing to pass it and this matter needs to be enquired into. But the learned Counsel for the respondent has opposed this application on two grounds:

(1) that both the courts below have held that there is no bonafied and reasonable personal necessity of the suit shop for the plaintiffs. It is, therefore, necessary for the appellants to first satisfy this Court that there it a reasonable and bonafied necessity of the suit then it may remand the case for deciding the question of comparative hardship.

(2) that this Court while remanding the case should set aside the judgment and decree of the courts below and remand the case as a whole for fresh trial as provided in Order 41 Rule 23 CPC as amended in the State of Rajasthan and not for a finding on the issue of comparative hardship alone under Order 41 Rule 25 CPC.

4. Similar questions arose before this Court in S.B. Civil Misc. Appeal No. 20/1877 Jai Narain v. Panna Lal which was decided in 8th March, 1978.

5. A regards the first contention, it was observed while deciding hat appeal that the question of bonafied and reasonable necessity as well as question of comparative hardship are interlinked with each other. It is of course true that the plaintiffs have to satisfy the court on two courts. Firstly, there is bonafide and reasonable necessity of the suit premised for the plaintiffs for personal use and secondly that in case the decree is not passed in their favour they would suffer hardship and inconvenience than that to be suffered by the defendant tenant if be is-evicted. Nonetheless the question of feonafide & reasonable necessity and question of comparative hardship, are inter-linked with each other and it would net be desirable that they arc decided piece-meal In this view of the mailer, the first contention of the learned Counsel for the respondent has, therefore, no force.

6. As regards the second contention, it may be said that, this Court after considering the various runings of this Court which I need not repeat again in this case, in SB, Civil Misc. Appeal No 20/1977 Jainarain v. Panalal, held that in such cases the proper course to be followed should be ass follower by the Division Branch of this Court in General Auto Agencies v. Hazari Singh 1977 WLN 74, The procedure followed by the revision berth of this Court was that an issue was framed relating to comparative hardship and the case was remitted to the trial court with the direction that it would give am opportunity to the parties to lead their evidence and then return the same to this Court along wish their findings there on within a particular period. In this view of the matter, the second contention of the learned Counsel for the respondent is also not tenable that the judgment and decree of the courts below should be set aside and the case be remanded for fresh trial including the issue of comparative hardship.

7. In view of the fact that the law has been changed during the pendency of the appeal here, the question of comparative hardship as required by Section 14(2) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1910, as amended, is first to be determined before the appeal can now be disposed of I therefore, allow the application of the appellants dated 15.4.1977. I would therefore in the circumstances frame the following issue & remit the same to trial court which shall give opportunity to the parties to lead their evidence and then return the same to this Court along with its findings thereon within a period of four months:

Whether having regard to all the circumstances of the case, including the question whether any other reasonable accommodation is available to the landlord or to the tenant, greater hardship would be by passing the decree than by refusing to pass it

8. The parties are directed to appear before the trial court i.e. Additional Civil Judge, Partabgarh at Chittorgarh on 22 5.1978.


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