M.B. Sharma, J.
1. This special appeal Under Section 18 of the Rajasthan High Court Ordinance filed by the tenant-defendant against the judgment of the learned Single Judge dated 26-8-75 has come up again for decision before this Court. Earlier, this Court under its judgment dated 7-3-1977 had dealt with this Special Appeal, and while all the points in controversy were disposed of but in view of Section 14(2) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short the Act) as amended by Ordinance No. 26 of 1975, which was later on replaced by an Act (No. 14 of 1976), an additional issue on the respective comparative hardship of the landlord and tenant was framed and the same was remitted to the trial court for decision in accordance with law. The finding of the trial court on the additional issue was given on November 4, 1980 and hence the matter has again come up before us.
2. The disputed premises consisting of ground floor (show rooms) open space and the first floor are part of a building situated at Mirza Ismail Road, Jaipur, known as 'Bhagat Bhawan'. M/s General Auto Agencies (for short the defendant) are tenants in the suit premises for the last many years. The suit premises were purchased by Hazari Singh, who shall hereinafter be described as the plaintiff, from the previous owner on November 7, 1968 under a sale deed. Thus, the defendant became the tenant of the plaintiff at Rs. 425/- p.m., the rent which the defendant was paying to the previous owner. A suit for eviction on the ground of personal bonafide necessity under Section 13(1)(h) of the Act as well as on the ground of default, as contained in Section 13(1)(a) of the Act was filed by the plaintiff against the defendant on November 30, 1970 in the Court of District Judge, Jaipur City, which was transferred for disposal to the Additional District Judge (2) Jaipur City. The suit was contested by the defendant on both the counts. The defendant also raised a plea that the suit was not maintainable, as it was filed against M/s General Auto- Agencies, which was not a juristic person. Other pleas were also raised. The trial court under its judgment dated 21-11-74 decreed the suit of the plaintiff for eviction on both the counts, i.e. personal bonafide necessity and defaults. The defendant preferred a first appeal in this Court, and the learned Single Judge of this Court under his judgment dated 26-8 1975 dismissed the S.B. Civil First Appeal No. 1 of 1975 upholding the judgment and decree of the trial court. The defendant preferred a special appeal under Section 18 of the Rajasthan High Court Ordinance in this Court, and this Court under its judgment dated 7-3-1977, though held that the suit on the ground of default Under Section 13(1)(a) of the Act could not be decreed, because the arrears of rent and interest had been deposited by the defendant in the trial court on the first date of hearing has confirmed the finding of the learned trial court on the reasonable and bonafide necessity of the plaintiff with regard to the suit premises.
3. After the decision of the Civil First Appeal No. 1 of 1975 by the learned Single Judge of this Court on August 26, 1975 and before filing of the Special Appeal on October 6,1975, which came into force with effect from 19-1-1975, and was later on replaced by an Act No. 16 of 1976 A ground was taken in the memo of appeal that in view of Section 14(2) of the Act, as amended, without deciding the comparative hardship of the landlord and the tenant, a suit could not be decreed on the ground of personal bonafide necessity This Court holding that Section 14(2) of the Act was retrospective, framed an additional issue:
Whether having regard to all the circumstances of the case, greater hardship would be caused by passing a decree for eviction than by refusing to pass it.
The additional issue was remitted to the trial court for trial in accordance with law. As already stated earlier, the trial court decided the additional issue under its judgment dated 4-11-80, and recorded a finding in favour of the plaintiff and against the defendant. The defendant filed objections under Order 41, Rule 26, C.P.C. against the aforesaid finding of the trial court.
4. We have heard at length the learned Counsel for the parties and have perused the record of the case. Besides challenging the finding of the trial court on the additional issue, the learned Advocate for the defendant has also tried to address arguments on issue No. 8 framed by the trial court with regard to the maintainability of the suit against the defendant on the ground that the defendant is not a legal entity. But, in our opinion, the matter is no longer open, and stands decided by the judgment of this Court dated 7-3-77 under which as already stated all the points excepting the point of comparative hardship which arose as a result of the amendment and introduction of Section 14(2) of the Act, were decided. It will appear from the judgment of this Court dated March 7, 1977 that under the four points, which were then urged before this Court, point No. 1 urged was. 'that the suit was not maintainable, as it was filed against M/s General Auto Agencies, which was a not a juristic person'. The finding of the trial court as well as of the learned Single Judge was that the suit was property filed against the defendant. During the course of arguments before this Court on March, 7, 1977, the finding of the trial court that the suit was properly filed against the defendant was not challenged. It will be pertinent to extract (he relevant portion of the aforesaid judgment of this Court:
The learned Single Judge held that the notice was invalid. The learned Single Judge also held that the suit was properly filed against the appellant and decided both the points against the appellant. Mr. C.L. Agarwal, learned Counsel for the appellant, has not challenged the said finding, and, therefore, it is not necessary to go into these.
5. The learned Advocate for the plaintiff has also urged that during the pendency of the Special Appeal in this Court, the defendant did not continue paying rent month by month by the 15th of subsequent month, and, therefore, his defence against eviction should be struck out. Whether or not it is necessary for the tenant to continue depositing rent month by month during the pendency of the appeal, second appeal and special appeal and whether the failure of the tenant to do so, if any, makes him liable for his defence against eviction, be struck out, we express no opinion as we are of the opinion that the appeal can be disposed of only on the additional issue framed by this Court and remitted to the trial court, which issue only survives for decision in this special appeal.
6. The learned trial court while recording a finding that greater hardship will be caused to plaintiff by refusing to pass a decree has taken into consideration these circumstances appearing on the record that the premises are required by the plaintiff for his business of which grade lime as well as for his residence, and that they are also required for the business of Rajendra Singh, son of the plaintiff. The plaintiff wants to construct an Air Tight Godown, which is necessary for the business of high grade lime. The learnned trial court has also taken into consideration that alternative accommodation was available to the defendant near Akashwani, but the defendant did not avail of it. Dealing with the question, as to whether the defendant will lose his good will, in case a decree is passed, the learned trial court has observed that is likely to happen in all cases for eviction from commercial premises. The learned Advocate for the defendant has challenged the finding of the trial court on the issue of comparative hardship. According to the learned Advocate, the learned trial Court has not taken into consideration some of the circumstances which have a material bearing on the decision of comparative hardship of the landlord and tenant It is further contended that the inference, which has been drawn by the learned trial court from the circumstances taken note of by it, that in case the decree for eviction is refused, the plaintiff shall suffer greater hardship than the defendant, is not correct He further contends that the learned trial court has not taken into taken into consideration the proviso of Section 14(2) of the Act, and according to the learned Advocate no hardship will be caused either to the defendant or to the plaintiff, in case a decree relating to a part of the disputed premises is passed.
7. The learned Advocate for the plaintiff contends that it is a finding of fact that in case a decree for eviction on the ground of reasonable and bonafide necessity is not passed in favour of the plaintiff, the plaintiff shall suffer more hardship, and this Court while sitting in special appeal should not interfere in such a finding of fact, unless the same is perverse. According to the learned Advocate, there are no special features which call for interference in the finding of fact In support of his submission he has placed reliance on Sarju Parshad Ramdeo Sahu v. Jwalashwari Pratap Narain Singh and Ors. : 1SCR781 and on Keshulal v. Ram Dayal 1960 RLW 593. The learned Advocate for the defendant has referred to Kedarnath v. Sitaram 1960 RLW 128 wherein dealing with the scope of appeal under Section 18 of the Rajasthan High Court Ordinance, this Court observed that Section 100, C P.C has no application to such an appeal, and the limitation to which an appeal under Section 100, C.P.C is subjected, cannot be imported for purposes of dealing with special appeals. It was further observed that it is open to a court in such an appeal to consider all the points necessary to be investigated for the determination of the questions of the decree under appeal, and that such consideration could not be limited to any particular question of fact or law, although in case of concurrent finding of fact this Court will be extremely slow to interfere.
8. It can no longer bedisputed that while dealing with a special appeal under Section 18 of the Rajasthan High Court Ordinance, there are no limitations on the powers of this Court to investigate the questions of fact or law which arise for the right decision of the appeal But, at the same time, in case of concurrent finding of fact, this Court is slow to interfere. It can also be said that while appreciating the evidence of the witnesses in appeals, which lie on facts, the appellate court is competent to reverse a finding of fact arrived at by the trial court, but the rule of practice is that the Court should give due weight to the views of the trial court, who had the advantage of having the witnesses before him. The rule of practice further is that when there is a conflict of the oral evidence of the parties, on any matter in issue, and the decision hinges upon the credibility of the witness, then unless there is some special feature about the evidence of a particular witness, which has escaped the Judge's notice, or there is a sufficient balance of improbability to displace the opinion of the trial Judge as to where credibility lies, the appellate court should not interfere with a finding of fact of the trial court on a question of fact.
9. The finding rendered by the trial court on the additional issue that in case a decree for eviction is not passed on reasonable and bonafide necessity of the plaintiff with regard to the suit premises hardship will be caused to him than to the defendant is based on oral testimony of the witnesses. It is to be seen as to whether there are any such features in the evidence of the witness which have escaped the notice of trial court in recording a finding in favour of the plaintiff, which necessitates the interference of this Court. The learned Counsel for the parties have taken me through the evidence recorded by the trial court.
10. A look at Section 14(2) of the Act will make it clear that while dealing with the respective hardship of the landlord and the tenant the court has to regard all the circumstances of the case including the availability of other reasonable accommodation to the landlord or the tenant. The circumstances to be taken into consideration are bound to differ from case to case, and as such no mathemetical formula can be laid down. But, the financial means of the landlord or the tenant for securing alternative accommodation is one of the circumstances to be taken into consideration. A reference may be made to Kasturbhai Ramchand Panchal and Brothers and Ors. v. Firm of Mohanlal Kathubhal and Ors. : 2SCR1 and Norottan Lal v. Mukat Lal 1980 (2) LCJ 123. In Hega Begam and Ors. v. Abdul Ahmed Bhai their Lordships observed, 'it. seems to us that in deciding this aspect of the matter, each party has to prove its relative advantages or disadvantages, and the entire onus cannot be thrown on the plaintiffs to prove that lesser disadvantages will be suffered by the defendants and that they were remediable.'
11. High grade lime in which the plaintiff deals is manufactured in Golan. According to the learned Advocate, it is supplied by the manufacturers in air tight bags and as such there is no need of any air tight godown at Jaipur. It is further contended that Hazari Singh the plaintiff in his statement is unable to say as to what is the demand of high grade lime in Jaipur, and as such on the evidence of other witnesses produced by him, the trial court should not have come to the conclusion that the demand of high grade lime in Jaipur for the various industries is 500 to 600 Tonnes a month According to him, the supply of high grade lime by the plaintiff to the various consumers in Jaipur is directly made from Gotan in Trucks, and as such if the open space of the suit premises on which the defendant has his workshop and service station is got vacated from the defendant, greater hardship will be caused to him. So far as the show room and the first floor is concerned, the learned Advocate submits that the plaintiff is already having a residential house in Bapunagar, though on rent, and in the same house in one room he is running his office for his business of high grade lime. Therefore, he is already in possession of alternative accommodation, from which he is not threatended to be dispossessed Moreover, Mirza Ismail Road is not a market for high grade lime and thus even if the plaintiff continues to have his office at Bapunagar or shifts to anyother place, his business is not likely to be effected. The defendant is a dealer in motor vehicles, has his show room and workshop, and the lint floor is used for his residence. As such, there is no alternative accommodation available to the defendant either in Transport Nagar or Mirza Ismail Road, the two places meant for such type of business. Therefore, taking an over all view of the matter and balancing the respective advantages and disadvantages of the plaintiff and the defendant, submits the learned Advocate that in case of eviction decree being passed under Section 13(1)(h) of the Act, greater hardship will be caused to the defendant than to the plaintiff. Mr. Hastimal Pareek, the learned Advocate for the plaintiff, on the other hand, submits that Sampat Mal Lodha is in a far better financial position He is Managing Director of Bhilwara Textile Mills being a shareholder of the shares of the value of three to four lacs. His daughters have also shares in that concern He has no son. He is getting Rs. 3,500/- p.m as salary from the Bhilwara Textile Mills. He has also his mining business at Udaipur. He has also shares in Lodha Corporation (Pvt) Ltd., in Kota, which is an agency of Tata Mercedez Trucks. His annual income is said to be about Rs. 40,000/ Thus, he is an affluent tenant and the landlord is not so affluent He has purchased the premises for his own residence and business in the year 1968. He is paying more rent for the residential premises in Bapunagar, which is not a commercial place. No other alternative accommodation is available to him, other accommodation was avoilable to the defendant at Mirza Ismail Road near All India Radio Station, but was not availed of. Mr. Pareekh thus submits that if the respective advantages and disadvantages of the plaintiff and the defendant are balanced, the balance will tilt in favour of the plaintiff, and as such the finding of the trial court does not call for any interference.
12. To our mind, while dealing with the question of hardship of the landlord and the tenant, as already observed above, the affluence of the tenant or the landlord is also to be taken into consideration. When in a giveu case before passing a decree for eviction on the ground set out Under Section 13(1)(h) of the Act, the Court has to compare the respective hardship of the landlord and the tenant, it is a relevant consideration as to how the tenant or the landlord is financially placed Where the tenant can easily afford to take the other accommodation, if available, on higher rent, and the landlord in not so well placed financially, it can be said that the balance of respective advantages is bound to tilt in favour of the landlord. In such cases good will of the business, if any, acquired by the tenant, will hardly be a consideration. Moreover, we are of the opinion that to import good will of the business which the tenant might acquire, as one of the consideration, in Sub-section (2) of Section 14 of the Act will render the provisions of Section 13(1)(h) and Section 14(2) of the Act nugatory, and in a few cases of business being run in rented premises, the tenant is likely to acquire good will of his business. This does not apply to the intention of the legislature. A reference may be made to Baga Begum's case (supra), where a tenant was running a hotel in a rented building for 30 years, but even then it was not considered to be a relevant consideration.
13. In the instant case, on the material on record, it can easily be said that the defendant has far better financial means than the plaintiff. From Indian standards, the defendant can be said to be affluent, but the landlord is not so in comparison to the tenant. The defendant has the means to take alternative accommodation, though, no doubt, he will have to pay high rent. Sampat Mal Lodha has offered to pay the difference of rent being paid to the plaintiff and being realised by him from the defendant. Even from the statement of Bhe;onlal Murdia (DW 2) who worked as Manager for 23 years with the defendant, it can be said that during the period 1975 to 1980 some show rooms were constructed on Mirza Ismail Road but none out of those show rooms was taken on rent, because the rent was very high. It can also be said that Sampat Mal Lodha (D.W. 1) has stated that some premises near Akashvani, which were previously with the Agent of Leyland Trucks had fallen vacant. Thus, on the material on record, it can be said that alternative accommodation was available to the defendant, but the defendant either because the rents were very high or for some other reason, did not take the alternative accommodation. It can also be said that in Transport Nagar, Jaipur plots had been sold and it is also a market for agency of motor vehicles, but no efforts were made to take any accommodation there either by purchase or on hire. Looking to the means of the defendant, the statement of Mr. Sampat Mal Lodha (D.W. 1) that the defendant has no means to construct his own premises cannot be relied upon. It is in every case of eviction of a tenant that the tenant will have to pay more rent, but that alone cannot be a consideration at least looking to the financial means of the defendant, as stated earlier, and it cannot be said to be a consideration in the present case. The plaintiff purchased the suit building in 1968. His need for the premises has been held to be reasonable and bonafide. According to him, after having invested in the purchase of the suit building, he is not in a position to parchase any other property. He is paying more rent for the house on rent in Bapunagar. He wants to shift in a commercial place, i.e. Mirza Ismail Road where the suit building owned by him is situated. His son Rajendra Singh wants to start his business in the show room. The open place is required for constructing an Air Tight Godown, and the first floor is required for residential purposes. We are of the opinion that the balance of advantages and disadvantages in passing or refusing to pass a decree tilts in favour of the plaintiff.
14. After taking an over all picture of all the circumstances of the case including the fact that alternative accommodation was available and could have been available to the defendant, we are of the opinion that in case a decree for eviction is refused to the plaintiffs greater hardship shall be caused to him than to the tenant. We, therefore, confirm the finding of the trial court on the additional issue remitted to it for trial.
15. We will now take up the other argument of Mr. Agrawal, the learned Advocate for the appellant that it is a case in which second para of Sub-section (2) of Section 14 of the Act should be invoked. He submits that out of the open land, some land for construction of air tight godown can be given. The first floor can be given for the residence of the plaintiff, and the show room can be allowed to remain with the defendant along with some open land behind it. According to him, no hardship will be caused, if a decree for eviction is only passed for the first floor as well as for some open land, whereas it is refused for the other. The second para of Sub-section (2) of Section 14 of the Act is as follows:
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 part of the decree in respect of such part only.
To our mind, the above extracted portion of Sub-section (2) of Section 14 of the Act will only apply in a case where no hardship would be caused either to the tenant or to the landlord by passing a decree relating to a part of the premises only. In the instant case, the show room was required by the plaintiff for the office of his business of high grade lime as well as for starting some business for his son Rajendra Singh. The first floor was required for residential purposes and the open land behind the show room was required for constructing an air tight godown for starting high grade lime. This requirement of the plaintiff was held to be both reasonable and bonafide by the trial court, by the learned Single Judge as well as by the Division Bench of this Court. Even as per the case of the defendant, the open land behind the show room, and at least a part of it is required for the workshop for the service station. Now, so far as the first floor is concerned, it is utilised only temporarily for the residence of persons concerned with the management as well as for the customers. But, looking to the respective needs of the plaintiff and the defendant, for the entire suit premises, we are of the opinion that in case a decree in respect of part of the suit premises is passed or refused, some hardship is bound to be caused to both the parties. Therefore, it is not a case where on the material on record, this Court can be satisfied that no hardship would be caused either to the tenant or to the landlord by passing the decree in respect of the part of the premises.
16. In the result, we do not find any force in this special appeal and the same is dismissed with costs. Any how, we grant six months' time to the defendant 1o vacate the said premises subject to continuing to pay to the landlord or to deposit in the court the rent for this period provided the defendant-appellant gives an undertaking within 15 days in the trial court that after the expiry of the aforesaid period of six months the defendant shall hand over vacant possession of the suit premises to the plaintiff.