BHERA RAM Vs. OM PRAKASH

JUDGEMENT

(1.) APPELLANTS , the legal representatives of plaintiff Bhera Ram, have preferred this appeal under Order 43 Rule 1(u) of the Code of Civil Procedure against the judgment and order dated 30.11.1996 passed by the Addl. District Judge, Churu (for short, hereinafter referred to as 'the first appellate Court'), whereby the learned first appellate Court has set aside the judgment and decree dated 27.05.1985 passed by the Court of Civil Judge (Jr. Div.) Sardarsahar (for short, 'the trial Court'), and remanded the matter back to the trial Court with the direction to frame issue on the point as to whether in case of partial eviction the parties would face any trouble or not; and if not, whether partial eviction from the premises in question is possible or not, and thereafter to take evidence of both the parties only on that point and to decide the suit afresh on that basis. The learned first appellate Court, while allowing the appeal also clarified that there is no necessity for the trial Court to decide rest of the issues again.

(2.) THE facts, in brief, are that the plaintiff Bhera Ram filed the suit with the averments that he has a shop of his exclusive ownership in the eastern market of Sardarsahar, facing southwards purchased by him in the year 1956 and it has two rooms over it which were given to the defendant Omprakash 7 8 years back on monthly rent of Rs.100/ and to that effect rent deed was executed on 04.10.1979 but the defendant did not pay the rent in terms of the rent deed from Asoj badi Ekam, Samvat 2036 till filing of the suit as such having committed default in payment of rent is a defaulter. The plaintiff claimed due rent and interest thereon. It was averred in the plaint that the tenant had agreed to vacate the premises after 11 months but did not vacate the same. The plaintiff has pleaded that the premises in question are required reasonably and bonafidely for engaging his two sons and two grandsons to carry on his business of goldsmith because it is not possible for all the five persons to undertake the aforesaid business in the present shop and work at the same place. Asserting with emphasis that in the business of goldsmith so many sophisticated works are to be done including filing, soldering, and fixing of gems etc with precision for which separate accommodation is required and as the space in the shop not being sufficient, the plaintiff is in personal bonafide need of the rented premises. The plaintiff also took the plea of comparative hardship that in case the premises in question are not vacated, his sons and grandsons would be deprived of doing job whereas the defendant is in the business of photography and the rented premises are sparingly used by him. It was further stated that the main source of income of the defendant is from salary and offerings received by him for worshipping in the temple of Tantiyas and he would suffer no hardship in case rented premises are vacated. The plaintiff prayed for arrears of rent and a decree of eviction.

(3.) THE trial court in all framed nine issues and after evidence of the rival parties heard final arguments and decreed the suit. The issues of bonafide necessity and comparative hardship were decided against the defendant and in favour of plaintiff by judgment of the trial Court dated 27.05.1985 and the suit was decreed directing the defendant to hand over vacant possession of the rented premises to the plaintiff within a period of two months.