M.L. Jain, J.
1. The facts of this second appeal are that the appellant was a tenant of the respondent who filed a suit for ointment for conversion of the shop into a living roam for her personal use. The learned Munsifl dismissed the suit so far as the eviction was concerned. One of the issues framed by him was whether by passing a decree of eviction any hardship will be caused to the patties and in what manner and whether the hardship to the defendant will be greater to the defendant in comparison to the plaintiff.
2. The learned Munsif was of the view that hardship will be greater to the defendant than to the plaintiff Upon appeal, the learned Civil Judge found that the defendant had a three stayed house of his own comprising of 9 rooms, out of which some are in his occupation. He runs a tea-stall in the shop outside Navigator Hotel and his case that he runs a waterman's business in the disputed premises was not believed. The defendant had stated that he was an employee in the tea stall but also looks after his dry cleaning shop, The learned Civil Judge found it difficult to believe that the appellant manages both his service and his parental profession of dry cleaning. The learned Civil Judge, therefore, set aside the order of the court below and decreed the plaintiff's suit for eviction.
3. The earned Counsel for the tenant appellant in this appeal, raise a question that the learned lower court wrongly placed on the tenant the burden of proving greater hardship and therefore in view of the decision in Phiroza Bamanji Desai v. Chandra Kant M. Patel and Ors. (1). : 3SCR267 , the judgment of the learned Civil Judge is vitiated by a mistake of law On the other hand the earned Counsel for the respondent has cited Muni Lal and Ors. v. Prescribed Authority and Ors. (2) : AIR1978SC29 , according to which the determination of comparative hardship is a question of fact and not of law and there is thus no error of jurisdiction.
4. Now, Section 14 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. provides that no decree on the ground of personal necessity shall be passed if the court is satisfied that having regard to all the circumstances of the case inducing 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. It was urged that in view of the provisions, the burden of proving hardship should have been upon the plaintiff that greater hardship would be caused if the decree was refused to her. I do not think that it is the correct approach. The Supreme Court in Phiroza Bamanji Desai's case (1)(supra) followed Central Tobacco Co. v. Chandra Prakash (3) 1969 NSC 88, wherein Matter J. observed that the onus of proof of reasonable and confide requirement is certainly on the lard-lord. The observations are In the following words.-
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 sifting 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.
The provision clearly says that the court has to consider whether by passing the decree of eviction greater hardship would be caused to the defendant. The learned Munsif himself does not seem to have cast the burdened the defendant not does the first appellant court appear to have done so. After the evidence has been led by both the parties, the question of burden of proof ceased to be material and evidence of both the parties was considered by the first appellate court and it found it in favour of the landlord which is a finding of fact. This case, therefore, does not involve any question of law much less a substantial one.
5. The appeal therefore, has no force and it is hereby dismissed summarily.