AGARCHAND Vs. BADRIDAS ALIAS BADRI PRASAD

JUDGEMENT

(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(Raj) 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(Raj) 105, Prabhu Shanker v. Smt. Rukmani, 1976 RajLW 3 and Bhanwarlal v. Nath Mal,1976 RLW 59 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(Raj) 105 has been relied upon by the learned Counsel in support of his aforesaid submission.