Guman Mal Lodha, J.
1. This is a civil second appeal of a tenant defendent against whom the suit for eviction has been decreed by the appellate court. I he decree has been passed on the basis of the finding in favour of the plaintiffs landlord that the necessity of suit premises of the plaintiffs is both reasonable and bonafide.
2. After the amendment introduced in Section 13, of the Rajasthan Premises (Control of Rent and Eviction) Act, (for brevity, the Act'), the requirement of comparative hardship of the plaintiff and the defendent needs examination. An issue was, therefore, framed and it was remitted to the lower court for recording of the evidence and giving a finding.
3. The lower court, after recording of the evidence, has given the finding that the comparative hardship would be to the tenant-appellant if the premises are got vacated from him because, he would not get alternative premises. The finding is that the plaintiff has got residential premises in which their machines for manufacturing the tinklers (Ghungharu) are lying.
4. The learned Counsel for the tenant-appellant has submitted that the finding regarding comparative hardship is a finding of fact and cannot be challenged in second appeal as held by this Court in Chatar Lal v. Ramdas ,
5. Shri G.S. Bafna, the learned Counsel for the respondents, has submitted that the whole approach of the lower court in respect of the finding of comparative hardship is against law, in as much as it was not necessary for the landlord to prove that the tenant would get accommodation in that very area. According to Shri Bafna, there is no evidence or finding that the tenant would not get any accommodation what so ever for his flour mill in Sikar town.
6. During the course of the arguments, Shri Bafna, under the instructions from his client further agreed that his client would be prepared to accommodate the appellants-tenants in the residential premises of the plaintiff and would give an area of same dimensions which they are occupying now and that too after constructing a shed, so that the defendants '-ire not put to any hardship or loss. This was agreed to, when the court suggested that if at all it comes to that, whether the plaintiffs would be able to do that.
7. Now, so far as the question of bonafide and reasonable personal necessity is concerned, Shri Tikku has rightly pointed out that the concurrent finding of two courts on the point cannot be assailed on the facts. So far as the finding of comparative hardship is concerned, now the lower court has held that the plaintiffs have not produced any evidence to show that the defendants would get any shop near about the premises where, they are doing business of Hour mill. Shri Tikku has stated that in Makia Bazar, no such premises would be available.
8. On the above basis, the appellate court came to the conclusion that if the defendants are asked to vacate the premises, their business would be ruined. Contrary to it, the business of the plaintiffs is already being run in the shop where the tinklers (Ghungharu) are sold. All that the plaintiffs want is to increase that business. It is not necessary to do the manufacturing business of the tinklers (Ghungharu) in the main market.
9. From the inspection note, it appears that the learned Civil Judge visited both the premises. The learned Judge has held that there are four rooms in the upper storey which, are lying vacant in the possession of the plaintiff-respondents but, they are not sufficient for the machines intended to be installed in the suit premises by the plaintiffs nor the foundation of such machines can be laid on the first floor as there is risk of roof may collapse if the machines are installed at the upper storey.
10. It has also been held that the landlords are running their business in the three rented shops situated near the door and the four machines can not be installed in these premises, also. It was then noticed in the inspection note that if the landlords want the machines to be installed they can do so, in the residential premises.
11. From the above it is clear that four machines are lying idle of the landlords and at the moment, they are doing business of selling tinklers (Ghungharus). In such situation can it be said that the comparative hard-hip would be caused to the landlord if the premises are not vacated or alternatively, whether can it be said that the finding of the comparative hardship suffers from any infirmity of law. Both the lower courts have concurred their findings. Both the learned Counsel relied upon the judgment of the Apex Court in Mst. Baga Begum v. Abdul Ahud Khan : 2SCR1 wherein it has been observed as under:
It is no doubt true that the tenant will have to be ousted from the house if a decree for eviction is passed, but such an event would happen whenever a decree for eviction is passed and was fully in contemplation of the legislature when Section 11(1)(h) was introduced in the Act. This by itself would not be a valid ground for refushing the plaintiffs a decree for eviction.
In deciding the extent to be the hardshisp that may be caused to one party or the other, in case decree for eviction is passed or is refused, 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 defendents and that the they were remediable.
12. In that case, after discussing the evidence their Lordships observed that if the defendants had proved that they will not be able to get any accommodation anywhere in the city where they could put up a hotel, this might have been a weighty consideration, but the evidence of all the witnesses examined by the defendants only shows that the defendants may not get alternative accommodation in that very locality where the house in dispute is situated and there is no satisfactory evidence to prove that even in other business localities there is no possibility of the defendants getting a house.
13. Their Lordships further observed that, to insist on getting an alternative accommodation of a similar nature in the same locality will be making for the impossible, and what is established from the evidence of the dependents is that if they are ejected, they night not get a house as big as the house in dispute in the very locality where the disputed house is situated. It has further been observed as under:
Thus, on a careful comparison and assessment of the relative advantages and disadvantages of the landlord and the tenant it is clear that the scale is titled in favour of the plaintiffs. The inconvenience, loss and trouble resulting from denial of a decree for eviction in favour of the plaintiffs far out weigh the prejudice or the inconvenience which will be caused to the defendants.
14. While accepting the appeal, their Lordships observed as under:
Normally the Supreme Court does not interfere with concurrent findings of facts but as the High Court as also the trial court have made a legally wrong approach to the instant case and have committed a substantial and patent error of law in interpreting the scope and submit that the words 'reasonable requirement' and 'own possession' appearing in Section 11(1)(h) of the J & K houses and Shops Rent Control Act have thus misapplied the law and overlocked some of the essential features of the eviction the Supreme Court had to enter into the merits of the case in order to prevent grave and substantial injustice being done to the appellants.
15. Shri Tikku submitted that in the above judgment, the actual income of the plaintiff was proved and then it was proved that he wants to augment his income and that income was too low and, therefore, their Lordships reversed the judgment of the lower courts and concurrent findings were altered and the decree was granted by the Supreme Court. His contention is that in the present case, there is no such evidence.
16. I have given a very thoughtful consideration to the principles laid down in the above judgment and their application in the instant case. Undoubtedly, there is concurrent finding on the point of reasonable and personal bonafide necessity in favour of the plaintiffs. The site inspection notes and the finding arrived at by the appellate court on the question of comparative hardship also show that four manufacturing machines were lying idle in the residential premises of the plaintiff. The plaintiff's case is that at the moment, they are doing the business of sale of tinklers (Ghungharua) in the rented premises in the market and he wains Judgment his income by setting up these machines in the premises where the defendants are running the flour mill and which is owned by the plaintiff and the wall of which was constructed a little earlier for the above purposes.
17. Applying the above principles laid down by the Apex Court in Bega Begum v. Abdul Ahud Khan (supra) it will have to be first held that the evidence of the defendants though read with plaintiff's evidence is sufficient to prove that in the area or Bazar where the defendants are running flour mill, at the moment, they would not get the alternative accommodation but it falls short of the proof required that he will not get any accommodation any where in the town of Sikar, itself. It was this point which weighed in Bega Begum's decision of the Apex Court (supra) in reversing the judgment of lower courts where in their Lordships observed that the tenant cannot get accommodation in that very market otherwise it would cause more hardship than the plaintiff. Thus, this finding of the Appellate Court in respect of the comparative hardship suffers from a serious infirmity of law because the entire approach has been that he must get some premises in that very market and the finding that he will not get any accommodation any where, is not based on any evidence, what so ever-
18. The question of augmenting revenue by setting up of machines for manufacturing by the plaintiff is genuine because the machines are lying idle and naturally he is doing business in the rented premises. It is an imperative necessity for a person to have manufactured process in bis own premises where he can control both, manufactures and sales. Thus, the finding of the comparative hardship arrived at by the appellate court suffers from serious infirmity of law, as pointed out by the Apex Court in the decision of Bega Begum's case (supra) and thus, those principles apply to the instant case. This is more so because the plaintiffs are agreed before this Court that they would provide alternative accommodation to the defendant in their residential premises of the same dimensions and would also construct a shed for that purpose.
19. In view of the above judgment and decree passed by the first appellate court is upheld with the modification that the execution of the decree under appeal would take place only when the plaintiffs are able to construct a shed of having equal dimensions area in their residential premises, and hand over it to the defendants for their occupation.
20. To make it very explicit, the decree of the eviction would be executed by putting the defendants appellants in the premises of the plaintiffs which has been treated as residential premises situated in Mohalla Karigaran Ward No. 13, Sikar, as shown in site inspection note and the eviction would be only by shifting in the premises, vice versa. If the premises are not made available for occupation by the plaintiffs to the defendants by constructing a shed of the same dimensions then the decree of eviction would not be executed. It is also further directed the rent which is being paid at rate of 50 rupees per month would be continued to be paid by the defendant to the plaintiff's for the new premises also for the time being. However, this rent would not be perpetual if the laws regarding rent control legislation permits increase in future.
21. In the result, this appeal is partly allowed and the judgment and decree dated the 28th July, 1975 passed by the Civil Judge, Sikar, is modified to the extent mentioned above.
22. The parties would be their own costs.