AMI CHAND SHARMA Vs. SUSHIL KUMAR

JUDGEMENT

(1.) THIS second appeal has been filed by the appellant-defendant against the judgment and decree dated 23. 2. 1999 passed by the learned Addl. District Judge No. 1, Sri Ganganagar in Civil Appeal No. 35/1996 by which he allowed the appeal of the plaintiff-respondent and set aside the judgment and decree dated 4. 7. 1996 passed by the learned Addl. Civil Judge (JD) No. 2, Sri Ganganagar dismissing the suit of the plaintiff- respondent and after deciding issues No. 5, 6 and 7 in favour of the plaintiff-respondent, he decreed the suit filed by the plaintiff-respondent against the defendant-appellant for eviction from the shop in question on the ground of reasonable and bonafide necessity as contained in Section 13 (1) (h) of Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (hereinafter referred to as "the Act of 1950" ).

(2.) THE necessary facts giving rise to this second appeal are as follows:- On 16. 7. 1985, the plaintiff-respondent filed a suit against the defendant-appellant for eviction from the shop in question situated in Public Park, Sri Ganganagar measuring 27x14 foot on various grounds and one of the grounds was that since the plaintiff-respondent would do the business of electrical articles in the disputed shop and since there was no other alternative accommodation, therefore, shop in question was required by the plaintiff-respondent bonafidely and reasonably. It was further pleaded in the plaint that in Sri Ganganagar, other shops were available to the defendant appellant and therefore, in case the decree of eviction was not passed, a greater hardship would be caused to the plaintiff respondent in comparison to the defendant-appellant and furthermore, shop in question was not divisible and thus, it was not possible to pass a decree of partial eviction. THE suit of the plaintiff-respondent was contested by the defendant-appellant by filing a written statement and in that written statement, it was averred that the plaintiff-respondent would not do any business in the shop in question, as he had already sufficient agriculture land in Punjab for doing business. Hence, no case for passing decree of eviction in favour of plaintiff respondent was made out and the suit be dismissed. On the pleadings of the parties, on 4. 2. 1988, the learned trial Judge framed as many as 12 issues. THE issue No. 5 pertained to bonafide and reasonable necessity, issue No. 6 pertained to comparative hardship and issue No. 7 pertained to partial eviction. THEreafter, both the parties led evidence in support of their respective case. After hearing both the parties and after considering the evidence led by the parties, the learned Addl. Civil Judge (JD) No. 2, Sri Ganganagar dismissed the suit of the plaintiff- respondent holding inter-alia:- (i) That need of the plaintiff-respondent for the shop in question was not found reasonable and bonafide and thus, the learned trial Judge decided issue No. 5 pertaining to reasonable and bonafide necessity against the plaintiff-respondent. (ii) That so far as the issue No. 6 pertaining to comparative hardship is concerned, the learned trial Judge did not give any finding on that issue as the issue No. 5 pertaining to bonafide and reasonable necessity was decided against the plaintiff-respondent. (iii) That so far as issue No. 7 is concerned, the same was decided in the manner that division of the shop in question was not possible and thus, it was decided against plaintiff- respondent. Aggrieved from the said judgment and decree dated 4. 7. 1996 passed by the learned Addl. Civil Judge (JD) No. 2, Sri Ganganagar, the plaintiff-respondent preferred first appeal before the Court of District Judge, Sri Ganganagar and later on, it was transferred to the Court of Addl. District Judge No. 1, Sri Ganganagar. THE learned Addl. District Judge No. 1, Sri Ganganagar through impugned judgment and decree dated 23. 2. 1999 allowed the appeal of the plaintiff-respondent and set aside the judgment and decree passed by the learned Addl. Civil Judge (JD) No. 2, Sri Ganganagar and decreed the suit of the plaintiff-respondent for eviction against the defendant-appellant on ground of reasonable and bonafide necessity as defined in Section 13 (1) (h) of the Act of 1950 holding inter-alia:- (i) That so far as issue No. 5 pertaining to reasonable and bonafide necessity is concerned, the learned First Appellate Court came to the conclusion that the need of the plaintiff- respondent for the shop in question was reasonable and bonafide one. THE learned First Appellate Court further came to the conclusion that no doubt plaintiff-respondent had agriculture land in Punjab, but that land was being cultivated by others and if he intended to do business in the shop in question, he may do so as he had a right to do any particular business. Thus, the learned First Appellate Court reversed the findings of the learned Trial Court on issue No. 5 and decided issue No. 5 pertaining to reasonable and bonafide necessity in favour of the plaintiff respondent. (ii) That so far as issue No. 6 pertaining to comparative hardship is concerned, that issue was not decided by the learned Trial Court and the prayer of the defendant-appellant that the case be remitted back to the learned Trial Court for deciding issue No. 6 was rejected and the learned First Appellate Court itself decided the issue No. 6, as according to it, there was ample evidence on record to decide that issue. From the evidence on record, the learned First Appellate Court came to the conclusion that the plaintiff-respondent had no other alternative accommodation except the shop in question for doing business of electrical goods and the defendant-appellant had failed to prove that he made efforts to get alternative accommodation. THErefore, the learned First Appellate Court categorically came to the conclusion that if the decree of eviction was not passed, the plaintiff respondent would be put to more hardship than to the defendant-appellant. Hence, issue No. 6 pertaining to comparative hardship was decided in favour of the plaintiff respondent and against the defendant appellant. (iii) That so far as issue No. 7 pertaining to partial eviction is concerned, the learned First Appellate Court came to the same conclusion as recorded by the learned Trial Court that division of the shop in question was not possible. Aggrieved from the said judgment and decree dated 23. 2. 1999 passed by the learned Addl. District Judge No. 1, Sri Ganganagar, the defendant-appellant has preferred this second appeal.

(3.) THERE is no dispute on the point that issue No. 6 pertaining to comparative hardship was not decided by the learned Trial Court and the prayer of the defendant appellant for remitting the case to the learned Trial Court for deciding that issue was rejected by the learned First Appellate Court and on the contrary, the learned First Appellate Court itself decided that issue.