R.L. Gupta, J.
1. Plaintiffs-appellants filed a suit for eviction and arrears of rent against the respondent in the court of Munsif, Bikaner, inter alia on the ground of reasonable and bonafide necessity of the suit premises. The plaintiffs are said to be trustees of the suit property. The trial court dismissed the suit holding that there was no reasonable and bonafide necessity for the suit shop by the plaintiffs and also on the ground that though the property was a trust property, it were not the trustees from whom the defendant took the suit property on rent and as such, the plaintiffs were not held entitled to maintain the suit An appeal was preferred against that judgment and decree and that appeal was decided by the Senior Civil Judge, Bikaner, by the judgment dated 6-7-71. He held the defendants defaulters in the payment of rent and also that the plaintiffs' need for the property is reasonable and bona fide. But the lower appellate court, however, agreed with the findings of the trial court on the point that the suit premises were not given on rent by the trustees and as such, they were not entitled to bring the suit for eviction against the defendant. It is against this judgment and decree of the appellate court that this second appeal has been preferred by the plaintiffs.
2. While this appeal was pending in this Court, on September 29, 1975, Section 14 of the Rajasthan Premises (Control of Rent arid Eviction) Act, 1950 was amended and Section 14(2) was added as follows:
No decree for eviction on the ground set forth in Clause (h) of Sub-section (1) of Section 13 should be parsed 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.
When the case came up for hearing, the learned Counsel for the parties agreed that this fact has to be inquired into & decided along with the question whether there is reasonable & bona fide necessity of the suit premises to the plaintiffs. They, therefore, agree that in view of the change in law which has occurred during the pendency of the second appeal, appropriate issue may be framed and the case be remitted for the decision of that issue.
3. Learned Counsel for the respondent, however, submits that as the maintainability of the suit itself is disputed, that point may be decided first before remitting the case. In case the plaintiffs are held entitled to maintain the suit, the issue may be framed and remitted or trial. In case the plaintiff-appellants are held not entitled to file the suit, the question of remitting the case would not arise. This contention, prima facie, seems to be quite good but there seems to be no provision to decide the appeal piece-meal requiring first to decide this point and thereafter, if need be, to remit the case. This point would also be decided along with other points when hearing the appeal as a whole.
4. In view of the fact that the change in law has occurred during the pendency of the second appeal, I refer, for trial to the lower appellate court the following issue,-
Whether having regard to all the circumstances of the case, including the question whether any 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.
The lower appellate court shall record additional evidence of the parties on the above issue and shall return the record to this Court together with its finding thereon and the reasons therefore within three months. As there is now no court of Senior Civil Judge, the case be sent to the Court of District Judge, Bikiner which is now the first appellate court. The parties are directed to appear before the lower appellate Court on January 5, 1978. They are further directed to submit the list of their witnesses to be examined by them on this issue on or before January 12, 1978. The record of the case shall be sent to the lower appellate court immediately.