D.P. Gupta, J.
1. After the coming into force of the amendment of the Rajasthan Presses (Control of Rent and Eviction) Act, 1950, hereinafter referred to as 'the Act', introducing section 14(2) therein, a decree for Moment of the tenant on the ground of reasonable and bonafide personal necessity of the plaintiff cannot or passed, unless the court is also satisfied that a greater hard ship would be caused by passing the decree than by refusing to pass it if is now well settled by a series of decisions of this Court that the aforesaid' provision would have to be taken into consideration even while deciding a suit appeal or a second appeal which was pending at the time when the aforesaid amendment introducing sub-Section (2) of Section 14 was enacted In General Auto Agencies Jaipur v. Hazari Singh 1977 WLN 74a Division Bench of this Court approved three Single Bench decisions holding that the provisions of sub-Section (2) of Section 14, as in reduced by the amending Ordinance No. 26 of 1975 (later replaced by Amending Act No. 14 of 1976) are retrospective in operation and would apply to pending suits appeals and second appeals The decisions in Mishrilal Shiv Charan 1976 WLN 105, Prabhu Shanker v. Smt. Rukmani 1976 RLW 3 and Bhanwarlal v. Nath Mal 1976 RLW59 may be referred to in this connection.
2. In the instant case the first appeal against the decree for ejectment was pending before the District Judge, Jalore, when the aforesaid amendment introducing sub-Section (2) of Section 14 came into force. The defendant amended his written statement and the plaintiff filed a rejoinder The plaintiff, however, did not feel it necessary to amend his plaint. After the amendment in the written statement was allowed to be made, the first appellate court framed an issue about the question of comparative hardship and remitted the new, issue so framed to the trial court for recording evidence in respect there of & sending us finding thereon within a period of two months. This revision application has been filed against the aforesaid order passed by the first appellate court on July 22, 1977.
3. It has been urged by the learned Counsel for the petitioner that the first appellate court should have set aside the decree for ejectment and Should have remanded the entire suit to the trial court for a fresh decision under the provisions of Order XLI, Rule 23, Code of Civil Procedure (as amended in Rajasthan)and should not have remitted only the newly framed issue to the trial court under Order XLI, Rule 25, Code of Civil Procedure, and the order passed in Mishrilal's case 1976 WLN 105 has been relied upon by the learned Counsel in support of his aforesaid submission.
4. In Mishrilal's case 1976 WLN 105 the first appellate court had remanded the entire suit to the trial court with the directions that the parties should be alloyed an opportunity to amend their pleadings and a fresh issue be framed in respect of comparative hardship of the parties, keeping in view the provisions of Section 14(2) of the Act, as amended by the Amending Act No. 14 of 3976 and then both the parties should be afforded an opportunity to lead fresh evidence relating to the newly framed issue and thereafter the suit should be derided afresh, after taking into consideration the evidence produced before and after the remand. In that case I had drawn attention to the fact that on account of the Rajasthan amendment of the provisions of O.XLI, Rule 23, Code of Civil Procedure, the first appellate court was empowered to remand a suit to the trial court, if it considered necessary in the interest of justice to do so In those circumstances. I did not feel inclined to interfere in the order passed by the first appellate court. In such cases, in my view, the appellate court enjoys a discretion under which it may either frame a new issue relating to the question of comparative hardship of the parties and remit the same to the trial court under Order XLI. Rule 25 Code of Civil Procedure or in proper cases it may set aside the decree and remand the entire case to the lower court with the direction to allow the parties an opportunity to amend their pleadings, frame an issue relating to the question of comparative hardship, then allow the parties opportunity to lead their evidence in respect thereof and to decide the suit afresh. But it must be observed that the discretion so vested in the appellate court has to be exercised in a judicial manner and not in any arbitrary fashion. It may be clearly understood that it was not held in Mishrilal's case 1976 WLN 105 that the only course open to the appellate court in such cases is to remand the case under the amended provisions of Order XLI, Rule 23, Code of Civil Procedure, but what has been held in that case is that besides the provisions of remand contained in O.XLI, Rule 25, Code of Civil Procedure, it is also permissible to the appellate court, in proper cases, to pass an order of remand under the amended provisions of Order XLI, Rule 23. Code of Civil Procedure, as well. In Mishrilal's case 1976 WLN 105 the parties had to be allowed an opportunity to amend their pleadings and thereafter a new issue was to be framed before the parties could be permitted to lead fresh evidence in respect of the matter relating to comparative hardship, and in those circumstances the first appellate court, in the interest of justice, thought it proper to remand the entire suit to the trial court under the provisions of Order XII, Rule 23, Code of Civil Procedure. However, where the parties have either already an ended their pleadings, in the appellate court or they do not desire to amend their pleadings for the purposes of incorporating new pleas relating to the question of comparative hardship or where it is not considered necessary or desirable by the appellate court to allow the parties to amend their pleadings on the grounds that existing pleas were sufficient, in such cases the procedure prescribed in Order XLI, Rule 25, Code of Civil Procedure may be resorted to. In Bahiru Mal Basden v. Lalit Kishore 1976 RLW 225 my brother Modi. J., framed an issue and remitted the same under Order XLI, Rule 25, Code of Civil Procedure, to the lower court for recording additional evidence of the patties in respect thereof, as he was of the view that it was not necessary in that case to allow the parties to amend their pleadings. The view taken in Mishrilal's case. 1976 WLN 105 is not in conflict with the view expressed in M/s. Bahirumal's case 1976 RLW 225 But in that case 1976 WLN 105 attention has been drawn to the fact that under the provisions of Order XLI, Rule 23, Code of Civil Procedure (as amended in Rajasthan) it is also open to the appellate court to remand the entire suit for a fresh decision, evert in those cases where the suit is not dismissed by the trial court only on a preliminary issue. The course adopted in the present case is in consonance with that which was adopted by the Division Bench in M/s. General Auto Agencies' case 1977 WLN 74 and in the circumstances of the present case, where the defendant has already amended his pleadings and the plaintiff did not feel it necessary to amend the paint having filed a rejoinder, the course adopted by the first appellate court in framing an issue relating to the question of comparative hardship and remitting the same to the trial court for recording the evidence in respect thereof and sending its finding in respect thereto, cannot be said to be either illegal or even unjustified. I do not find that the order passed by the first appellate court, in the present case can be interfered with by this Court in these proceedings as no question of jurisdiction within the meaning of the provisions of Section 115, Code of Civil Procedure, arises in this case.
5. The revision application has no force and the same is consequently dismissed.