ANAND PRAKASH Vs. ABDUL KAYUM

JUDGEMENT

(1.) THIS appeal is directed against the judgment and decree dated August 20, 1985 passed by the learned Additional District Judge, No. l, Jodhpur in Civil Appeal No. 44 of 1979 affirming the judgment and decree dated July 9, 1979 passed by the Additional Munsif, No. 1, Jodhpur, whereby, the plaintiff's suit for eviction was decreed.

(2.) THE plaintiffs instituted a suit for eviction in respect of the suit-shop on the basis of reasonable bonafide need, which was decreed by the trial court. THE defendants went in appeal and the appeal was heard by the learned Addl. District Judge, No. 1, Jodhpur who, by his judgment dated 7, 1981 dismissed the appeal. THE defendants then preferred Civil Second Appeal No. 118 of 1981 in this Court and this court by judgment dated September 11, 1981 accepted the appeal and set aside the judgment of the first appellate court dated April 7, 1981 and gave directions to the first appellate court. THE operative portion of the judgment reads as under:- "the result is that I accept the appeal and set aside the judgment and decree dated April 7, 1981 of the learned Addl. District Judge, No. 1, Jodhpur and direct him ( first appellate court ) to go into the question as to whether the reasonable requirement of the plaintiffs (Landlord) may be substantially satisfied by evicting the tenant from a part only of the premises as contemplated in the second para of S. 14 (2) of the Act. If, after taking evidence, the court is satisfied that the entire premises must be vacated to fulfil the reasonable requirement of the plaintiffs, the decree for ejectment will stand. If, on the other hand, the court finds as a fact that the partial eviction will meet the ends of justice as contemplated in second para of S. 14 (2) of the Act, an appropriate order will be passed on the same footing. THE learned Addl. District Judge will take up the case on file pursuant to this order of remand and confine himself to the limited question stated above, give opportunity to both the parties to lead evidence on the sole question and dispose of the appeal in accordance with law within four months. In the circumstances of the case, there will be no order as to costs. THE parties are directed to appear in the court of Additional District Judge, No. 1, Jodhpur on October 1, 1981. THEreafter, the learned Additional District Judge, No 1, Jodhpur will fix the date for recording the evidence on the aforesaid limited question".

(3.) I have considered the above submissions of Mr. Bhoot. It may be mentioned that several factors have been taken into account by the learned Additional District Judge. What investment the plaintiffs are prepared to make, what is the size of the shop and the space available for the two plaintiffs for running the business, how and in what manner the business is to be carried by the two brothers namely; Abdul Rehman and Abdul Halim. All these factors have gone into consideration. It is true that the statement of each individual witness have not been discussed but the relevant factors have been taken into consideration by the learned Additional District Judge. It was not necessary for the learned Additional District Judge to examine as to whether the market for motor parts and auto parts would be available to the plaintiffs, in the premises in question as such a business is run in the city of Jodhpur on Chopasni Road. That may be so, however, the premises in question are situated on the main road of a busy market and not far off from Chopasni Road. Besides that, as far as this aspect is concerned is not to be looked into on the question of partial eviction. It is a point, which is relevant for determination of the question of reasonable bonafide need and comparative hardship. The finding as to reasonable bonafide need and comparative hardship was not challenged before this Court and only partial eviction has been agitated. With regard to space, the statements of Abdual Rehman and Abdul Halim were recorded They have stated that the space is required for motor parts and auto-parts business. Two counters would be installed, one for motor-part business to be run by one brother and the other for auto-part business to be run by another brother. In that situation, it cannot be said that the plaintiffs do not need the total frontage of the shop. The dimensions of the shop, which have come on record is 281/2'x 14 1/2" x 12 1/2' with a varendah of 6 1/2 ft. in front of the shop. Thus, the space required, has been taken note of by the learned Additional District Judge. It is true that the learned Additional District Judge took into consideration some extraneous matters as well, like that the defendants are tenants like continuously since 1941 and had paid only Rs. 40/- per month as rent and during all these years, made profits in lacs. As a matter of fact, these matters should not at all have been averted to. He was only required to consider the question of partial eviction without causing any hardship either to the landlord or the tenant. After determining the question of hardship by partial eviction, if it is found that no hardship could be caused either to the landlord or to the tenant, then, only decree for partial eviction can be passed. Para 2 of Sec. 14 (2) of the Rent Act reads:- "sec. 14:- Restriction on eviction- (1 ). . . . . . . . . . . . . . . . . . . . (2 ). . . . . . . . . . . . . . . . . . . . Where the court is satisfied that no hardship would be caused either to the tenant or to the landlord by passing the decree in respect of a part of the premises, the court shall pass the decree in respect of such part only".