S.K. Mal Lodha, J.
1. This is a defendant-tenant's second appeal directed against the judgment and decree of the learned Additional District Judge No. 2, Jodhpur dated May 8, 1975 by which he reversed the decree of the learned Munsif, Jodhpur City, dated March 30, 1974 so far as ejectment was concerned.
2. The facts giving rise to this appeal may briefly be noticed. The plaintiff-landlady instituted a suit for arrears of rent and ejectment against the defendants from shops Nos. 16 and 17 situate at 2B Road, Sardarpura, Jodhpur, more specifically described in para 1 of the plaint, on January 11, 1971. Ejectment was sought on the ground of reasonable and bonafide necessity for landlady's son Virerdra Kumar alleging that her son had left his studies and wants to start general merchandise business in the shops in suit. Rs. 401.25 were claimed as arrears of rent and mesne profits from the .defendant. An averment was made in the plaint that the tenancy of the defendant has been validly terminated by serving registered notice dated October 7, 1970.
3. The defendant submitted a written-statement on June 4, 1971. He admitted that he is in possession of the shops in suit as a tenant at a monthly rent of Rs. 75/-. He, however, admitted the amount due as claimed by the plaintiff. He traversed the other allegations relating to ejectment from the shops in dispute made by the plaintiff in her plaint. The defendant denied the ground of reasonable and bonafide necessity alleged by the plaintiff and contended that her son Virendra Kumar runs a shop of welding and also carries on the business of purchasing and selling houses and plots. It was also alleged that initially, the monthly rent was Rs. 40/- per month but subsequently, it was enhanced to Rs. 60/- and thereafter to Rs. 75/- under the threats of his ejectment. Certain ether pleas were also taken by the defendant which, are not material for the disposal of this appeal. The learned Munsif framed issues arising out of the pleadings of the parties and after recording evidence, dismissed the suit for ejectment and decreed the claim of arrears of rent and mesne profits. The judgment was rendered by the learned Munsif on March 30, 1974. The learned Munsif recorded a categorical 'finding in .respect, of issue No. 3 to the effect that the plaintiff has failed to prove that the shops in suit are reasonable and bonafide required for her son Virendra Kumar.
4. Being dissatisfied with the judgment and decree of dismissal of the suit relating to ejectment, the plaintiff preferred appeal. The learned Additional District Judge No. 2, jodhpur, by his judgment dated May 8, 1975 accepted the appeal and set aside the judgment and decree dated March 30, 1974 so far as the relief of ejectment was concerned. He decreed the suit for ejectment and recovery of mesne profits @ Rs. 75/-per month from the date of the institution of the suit (January 11, 1971) to the date of the delivery of possession of the shops in dispute on the condition that the requisite court-fee is paid by the plaintiff at the time of the execution of the decree. He allowed six months' time to the defendant to vacate the shops in suit. He found that the need of the plaintiff is reasonable and bonafide. It will be useful to extract the finding recorded by the learned Additional District Judge,:
It is thus well proved that Shri Virendra Kumar has left studies, he wants to start a business of General Merchandise in the suit shop, neither the plaintiff nor her son Shri Virendra Kumar owns any other shop in Jodhpur city, he is a young man of 22 years of age and there is no allegation in the written statement that the suit has been filed to put pressure upon the defendant to further enhance the rent. It is also proved that the truck No. RJQ, 4125 has been sold, the contract business was temporarily carried on by Shri Virendra Kumar during the pendency of the suit and at present he is doing nothing His need is, therefore, reasonable and bonafide.
Aggrieved by the appellate judgment, the defendant-tenant preferred second appeal to this Court on September 5, 1975. After the coming into force of the Rajasthan Premises (Control of Rent and Eviction) (Amendment) Ordinance, 1975 (No. XXXVI of 1975), an application under Order XLI, Rules 1 & 2, CPC was moved for incorporating pleas relating to the benefit of the Ordinance. The amended memo of appeal was submitted by the learned Counsel for the defendant-appellant on December 16, 1975. Arguments of the learned Counsel were heard by this Court on February 3, 1977. By that time, the aforesaid Ordinance No. XXVI of 1975 was replaced by the Rajasthan Premises (Control of Rent and Eviction) (Amendment) Act, 1976 (No. XIV of 1976). This Court framed the following two issues:
(a) Whether having regard to all the circumstances of the case including the question whether any 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 ?
(b) If the court comes to the conclusion that no hardship would be caused either to the tenant or to the landlord by passing the decree in respect of one shop out of two shops let out to the tenant, what will be its effect Onus on the landlord
Both these issues were referred for trial to the lower appellate court and it was directed that that court should record additional evidence of the parties and return the evidence together with its findings thereon to this Court. In pursuance of the order passed by this Court on February 3, 1977, the lower appellate court recorded the evidence of the parties on the above mentioned two issues remitted for trial by this Court. The plaintiff examined herself as PW 1 and Virendrakumar PW 2. The defendant examined himself as DW 1, Dhaiarndas DW 2, Keshav DW 3, Laxman DW 4, and Khoobchand DW 5. After considering the question of comparative hardship as contemplated by Section 14 l2) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (No. XVII of 1950) for short, 'the Act' hereafter) the lower appellate court opined that a decree may be passed for ejectment against the defendant in respect of one shop only so that that shop would be available to the plaintiff's son for doing his business It further held that the plaintiff has not been able to prove her case for ejectment in respect of both the shops. After the receipt of the findings from the lower appellate court, this county, on August 18, 1977 directed the parties, to file objections if any, within 15 days The appellant submitted his objections to the findings on September 3, 1977 praying therein that the findings of the lower appellate court may be modified and' both the issues may be decided in favour of the appellant where-/ by holding that the defendant-appellant would be put to greater hardship if one shop out of the two shops is ordered to be vacated The plaintiff--respondent submitted objections to the findings on September 5, 1977 praying that decree for ejectment passed against the defendant in respect of both the shops should be maintained. Learned Counsel appearing for the appellant has raised the, following three points before me:
1. That lower appellate court has committed a serious error Of fact and law, when itself that the need of the plaintiff is reasonable and bonafide,
2. 'that the lower appellate court, while deciding the, two remitted issues. Wrongly 'held that greater hardship would be caused to the plaintiff if her suit for ejectment in respect of one shop is not decreed for the business of her son, and
3. that at any rate, the findings of the lower appellate court that if ejectment in respect of both the shops 'is ordered in favour of the plaintiff, no shop would be available to the defendant and that would cause hardship to him, has been arrived at after examining the pros & cons of matter and as such, the finding relating to comparative hardship being a finding of fact should not be interfered with and, the finding that ejectment of the defendant should be confined, to one shop only as recorded by the lower appellate court', should be maintained.
Learned counsel appearing for the plaintiff respondent supported the judgment of the lower appellate court dated, May 8 1975 in which it was held that the need of the plaintiff is reasonable and bonafide On the question of comparative hardship, learned Counsel submitted that the reasons, given by the lover appellate court while deciding the remitted issues that the need of the plaintiff would be met by ordering ejectment in respect of one shop out of the two in possession &'occupation of the defendant for the business of the plaintiff's son are not sustainable in law and thus the finding in this regard is infirm and therefore, should be set aside and the decree for ejectment, passed by the lower appellate court in respect of the two shops should be maintained, In support of his arguments, learned Counsel drew my attention to Malai Kolandai Mudaliar v. M R Swaminathan 1970 RCR 551.
5. The first question that crops up for my consideration in this appeal is whether the finding recorded by the lower appellate court on the question of reasonable and bonafide necessity calls for any interference. In other words, what I have to determine is whether the finding of the trial court under Section 13 (1) (h) of the Act stands vitiated on the ground of any error of law or of procedure as this appeal was lodged on September 5, 1975 and admitted on December 16, 1975. Before coming into force of the present amen Code of Civil Procedure, issue No. 3 was framed by the trial court covering the ground of reasonable and bonafide necessity mentioned under Section 13(1)(h) of the Act. The burden of this issue was rightly placed' on' the plain' tiff. The trial court, on a consideration of the evidence of the parties, decided this issue against the plaintiff. The learned Additional District Judge, who decided the appeal, critically examined the statement of Smt. Kanta Kumari (PW 1-plaintiff), Virendra Kumar PW 2; Topandas DW1 (Defendant), Dayaldas DW 2, Himmatram DW 3, Mohammed Salim DW 4, Mohammed Akram DW 5 and Bhagwandas DW 6, and the documentary evidence particularly registration certificate Ex, Al and reached the conclusion that the need alleged by the plaintiff in respect of the two shops is reasonable and bonafide. At the instance of the learned Counsel for the defendant, I have also gone through the relevant oral and documentary evidence having bearing on the question of reasonable and bonafide necessity. lam satisfied that no valid exception can be taken to the finding recorded by the lower appellate court on the question of reasonable and bonafide necessity. The learned Additional District Judge has taken all the material evidence into consideration and arrived at the conclusion that the requirement of the plaintiff is reasonable and bonafide. It Mathulal v. Radhelal AIR 1974 SC 1576, it was held that finding regarding reasonable and bonafide requirement of landlord is a finding of fact and not a finding of mixed law and fact. The first appellate court, as stated above, after appreciating the entire evidence and after examining the reasons given by the trial court, came to the conclusion that the plaintiff requires the premises an suit reasonably and bonafide. This finding cannot be interfered with by this Court in second appeal as it has not been shown by the learned Counsel for the appellant that in reaching it a mistake of Jaw was committed by the learned Additional District Judge or it is based on no evidence or is such as no reasonable man can reach. In these circumstances, the finding of the learned Additional District Judge on the question of reasonable and bonafide necessity is maintained.
6. For the appreciation of the other two points raised be the learned Counsel for the appellant, it would be useful to read Section 14 (2) of the Act. It reads as under,:
14(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 of the premises, the court shall pass the decree in respect of such part only....
The learned Additional District Judge in his findings recorded on the remitted issues after considering the statements of PW 1 Kanta Kumari, PW 2 Virendra Kumar, DW 1 Topandas, DW 2 Dharamdas, DW 3 Keshav, DW 4 Laxman and DW 5 Khoobchand came to the following conclusions,-
(1) that the plaintiff has no other shop available with her except the two shops in suit;
(2) that after the institution of the suit in the locality in which the shops in suit are situate, some new shops were constructed and given on rent but the defendant did not take any steps for taking them on rent, if he so wanted;
(3) that the objections raised by the defendant that the plaintiff's son does not want to do any business in the shops in suit or that she wants to sell it after getting them vacated, are futile;
(4) that the plaintiff has not been able to prove that in between the two shops, there is a 'Pardi' which can be removed so that both the shops may be joined;
(5) that there is no evidence placed on record by the plaintiff that one shop will not be sufficient for doing the business of general merchandise;
(6) that the defendant can carry his business properly in one shop.
On the basis of the aforesaid conclusions, the learned Additional District Judge was of the opinion that the plaintiff's son can carry on business in one shop Thus, according to the learned Additional District Judge, decree for eviction in respect of one shop only should be passed against the defendant so that one shop would be available for the business of the plaintiff's son. He, further found that in his opinion, the plaintiff has not been able to make out a case for eviction of the defendant from both the shops.
7. Learned Counsel for the appellant submits that the defendant would be put to greater hardship than the plaintiff if decree in respect of even one shop is passed On the other hand, learned Counsel for the respondent submits that the plaintiff would be put to greater hardship than the defendant if decree for eviction passed in respect of both the shops by the judgment under appeal is modified so as not to decree the suit for eviction in respect fone shop out of the two shops in dispute. In support of his -arguments, learned Counsel for the appellant submitted that the plaintiff's Son is doing his business elsewhere and he does not require any of the disputed shops He further submitted that from the evidence which has been produced by the defendant in connection with the remitted issues, it is clearly established that the defendant and the members of his family including the members of his deceased brother's would be put to great loss if he is dispossessed from any of the shops in suit. He therefore, contended that both the issues which were remitted to the lower appellate court under Order XLI, Rule 25 CPC may be decided in entirety in favour of the defendant Mr. Nagori, learned Counsel for the plaintiff submitted that in case defendant is ordered to be evicted from bath the shops, the defendant would not be put to any hardship as no attempt was made by the defendant for procuring on rent other shops for his business which were available to him after the institution of the suit in the locality in which the shops in suit are situate. He, therefore, submitted that even after the provisions of Section 14 (2) of the Act, the decree for eviction passed by the learned Additional District Judge on May 8, 1975 in respect of the two shops in suit should not be varied. Learned Counsel for the respondent read over the statements of the witnesses who were produced by the parties before the lower appellate court in pursuance of the order of this Court dated February 3 1977. In my opinion, while recording the findings in respect of the remitted issues, the learned Additional District Judge has neither misread the evidence nor ignored any relevant and material portion of the evidence of any of the witnesses of the parties The question of the reasonable and bonafide requirement of the landlord and greater hardship were examined in Phirose Bamanii Desai v. Chandrakant M. Patel and Ors. AIR 1959 SC 1059. In this connection, in para 8, it was observed,:.It will, therefore be seen that the evidence on record was sufficient to show that the requirement of the ground floor premises by the appellant was reasonable and bonafide and the High Court was in error in taking a contrary view and disturbing the finding recorded by the District Judge.
The view in regard to the burden of proof on the question of greater hardship taken in Central Tobacco Co v. Chandra Prakash AIR 1969 NSC 88 was followed in which it was observed,:
We do not find ourselves able to accept the broad proposition that as soon as the landlord establishes his need for additional accommodation he is relieved of all further obligation under Section 21 Sub-section (4) and that once the landlord's need is accepted by the Court all further evidence must be adduced by the tenant if he claims protection under the Act. Each party must adduce evidence to show what hardship would be caused to him by the granting or refusal of the decree and it will be for the court to determine whether the suffering of the tenant, in case a decree was made, would be more than that of the landlord by his refusal...'.The onus of proof of this is certainly on the landlord. We see no sufficient reason for holding that once that onus is discharged by the landlord it shifts to the tenant making it obligatory on him to show that greater hardship would be caused to him by passing the decree than by refusing to pass it. In our opinion, both sides must adduce all relevant evidence before the court; the landlord must show that other reasonable accommodation was not available to him and the tenant must also adduce evidence to that effect. It is only after siting such evidence that the court must form its conclusion on consideration of all the circumstances of the case as to whether greater hardship would be caused by passing the decree than by refusing to pass it
From the statement of Virendra Kumar PW 2 dated May 12, 1977, it is clear that he will be able to carry on the business of general merchandise which he wants to start in one shop He has also stated that he would keep goods worth Rs. 25000 to Rs. 30000 for his business. It is an admitted position that there are verandah' in front of the two shops in dispute. It is in the statement of PW 1 Kanta Kumari dated April 6, 1977 that one shop is 9' x 12' exclusive of the verandah in front of it, All the shops in the line of the shops in dispute are of the same measurements and areas. In these circumstances, it is not unreasonable to hold that one shop out of the two shops in dispute would be sufficient to meet the requirement of the plaintiff's son. It has come in evidence that there is only a hotel in one shop and in the other shop, there is a cabin for selling betels and some other articles are also lying in it. It has also come in evidence that formerly the cabin was on the Municipal land which was subsequently taken in the shop There is a verandah in front of the shop where the defendant is also carrying on his hotel business The lower appellate court, on the basis of the evidence referred to above, in my opinion, rightly recorded the conclusions which it did and the learned Counsel for the parties were not able to satisfy me that the aforesaid summarised conclusions of the lower appellate court while sending the findings on the remitted issues, suffer from any infirmity. The finding on the question of comparative hardship or greater mischief or balance of convenience is one of fact. The lower appellate court on a consideration of the evidence before it found that if decree for eviction in respect of both the shops is refused to the plaintiff respondent, she will be put to greater hardship than the defendant by not passing a decree for eviction in respect of both the shops. The Full Bench of this Court in a reference in S.B. Civil Second Appeal No. 416 of 1978 Chhatarlal v. Mehant Shri Ramdas (decided on January 12, 1979), has observed as under, -
When an issue is remitted under Order XLI, Rule 25, CPC in Second Appeal, to the first appellate court, the finding of fact sent by the first appellate court is rot open to attack except on the grounds stated in Section 100, CPC In case the issue of fact has been determined by the lower appellate court, whether on being remitted in second appeal or otherwise, such a finding of fact given by the lower appellate court cannot be determined by the High Court and the reason appears to be that a senior & experienced Judge presides over the first appellate court, it will be taken that the findings of facts arrived at by him, are correct.
Thus, the finding received from an appellate court on a remitted issue relating to a question of fact is binding in second appeal and can only be assailed on the ground stated in Section 100, CPC. In this view of the matter, the finding recorded by the lower appellate court on the remitted issues Nos. (a) and (b) is binding being a finding of fact and it has not been shown by the learned Counsel for the parties that it is vitiated because of either a mistake of law has been committed by the lower appellate court or is Such as no reasonable man can reach In these circumstances, I accept the findings recorded by the lower appellate court on the remitted issues (a) and (b).
8. The net result of the discussion made above is that the plaintiff is entitled to evict the defendant from one shop out of the two shops in suit At present, the defendant is in occupation of shops Nos. 16 and 17 described in para 1 of the plaint. The lower appellate court has not recorded by categorical finding on the question as to from which shop the defendant should be evicted and it appears that the learned Counsel for the parties did not address it on that aspect of the matter. During the course of dictation of the judgment, I sent for both the learned Counsel for the parties and heard them regarding this. Mr. I C. Maloo, learned Counsel for the defendant appellant submitted that out of these two shops, any shop, which the plaintiff respondent chooses, may be ordered to be vacated Mr. R.R. Nagori, learned Counsel for the plaintiff stated that decree for eviction in respect of shop No. 16 may be passed as it would be suitable for the business of the plaintiff's son which he wants to start. Learned Counsel for the defendant-appellant has no objection to it. As such, decree for eviction in favour of the plaintiff and against the defendant in respect of shop No. 16 is passed learned Counsel for the appellant under takes on behalf of his client that vacant and peaceful possession of shop No. 16 along with verandah in front of it would be delivered to the plaintiff by April 30, 1979 to which learned Counsel for the plaintiff-respondent has no objection. In these circumstances, execution proceedings for eviction. in respect of shop No. 16 shall not be levied before April 30, 1979
9. The defendant is paying Rs. 75/-per month as rent of both the shops (Nos. 16 and 17) As order for eviction in respect of shop No. 16 is passed, the defendant- appellant will be liable to pay rent @ Rs. 37. 50 p per month from the date he hands over possession of shop No. 16 The direction with respect to rate of rent in respect of shop No. 17 is made with the consent of the learned Counsel for the parties.
10. For the reasons mentioned above, the appeal is partly allowed and the judgment of the learned Additional District Judge No. 2, Jodhpur, passed in civil appeal No. 81 of 1974 dated May 8, 1975 is modified and the order for eviction is limited to shop No. 16 only. The plaintiff 's suit for eviction in respect of shop No. 17 is dismissed. In the circumstances of the case, I direct that the parties shall bear their own costs of this appeal.