TOPANDASS Vs. KANTA KUMARI

JUDGEMENT

(1.) THIS is a defendant -tenant's second appeal directed against the judgment and decree of the learned Additional District Judge No. 2, Jodhpur dated May 8, 1975 by which he reversed the decree of the learned Munsif, Jodhpur City, dated March 30, 1974 so far as ejectment was concerned.

(2.) THE facts giving rise to this appeal may briefly be noticed. The plaintiff -landlady instituted a suit for arrears of rent and ejectment against the defendants from shops Nos. 16 and 17 situate at 2B Road, Sardarpura, Jodhpur, more specifically described in para 1 of the plaint, on January 11, 1971. Ejectment was sought on the ground of reasonable and bonafide necessity for landlady's son Virerdra Kumar alleging that her son had left his studies and wants to start general merchandise business in the shops in suit. Rs. 401.25 were claimed as arrears of rent and mesne profits from the .defendant. An averment was made in the plaint that the tenancy of the defendant has been validly terminated by serving registered notice dated October 7, 1970.

(3.) BEING dissatisfied with the judgment and decree of dismissal of the suit relating to ejectment, the plaintiff preferred appeal. The learned Additional District Judge No. 2, jodhpur, by his judgment dated May 8, 1975 accepted the appeal and set aside the judgment and decree dated March 30, 1974 so far as the relief of ejectment was concerned. He decreed the suit for ejectment and recovery of mesne profits @ Rs. 75/ -per month from the date of the institution of the suit (January 11, 1971) to the date of the delivery of possession of the shops in dispute on the condition that the requisite court -fee is paid by the plaintiff at the time of the execution of the decree. He allowed six months' time to the defendant to vacate the shops in suit. He found that the need of the plaintiff is reasonable and bonafide. It will be useful to extract the finding recorded by the learned Additional District Judge,: It is thus well proved that Shri Virendra Kumar has left studies, he wants to start a business of General Merchandise in the suit shop, neither the plaintiff nor her son Shri Virendra Kumar owns any other shop in Jodhpur city, he is a young man of 22 years of age and there is no allegation in the written statement that the suit has been filed to put pressure upon the defendant to further enhance the rent. It is also proved that the truck No. RJQ, 4125 has been sold, the contract business was temporarily carried on by Shri Virendra Kumar during the pendency of the suit and at present he is doing nothing His need is, therefore, reasonable and bonafide. Aggrieved by the appellate judgment, the defendant -tenant preferred second appeal to this Court on September 5, 1975. After the coming into force of the Rajasthan Premises (Control of Rent and Eviction) (Amendment) Ordinance, 1975 (No. XXXVI of 1975), an application under Order XLI, Rules 1 & 2, CPC was moved for incorporating pleas relating to the benefit of the Ordinance. The amended memo of appeal was submitted by the learned Counsel for the defendant -appellant on December 16, 1975. Arguments of the learned Counsel were heard by this Court on February 3, 1977. By that time, the aforesaid Ordinance No. XXVI of 1975 was replaced by the Rajasthan Premises (Control of Rent and Eviction) (Amendment) Act, 1976 (No. XIV of 1976). This Court framed the following two issues: (a) Whether having regard to all the circumstances of the case including the question whether any reasonable accommodation is available to the landlord or the tenant greater hardship would be caused by passing the decree than by refusing to pass it ? (b) If the court comes to the conclusion that no hardship would be caused either to the tenant or to the landlord by passing the decree in respect of one shop out of two shops let out to the tenant, what will be its effect ? Onus on the landlord Both these issues were referred for trial to the lower appellate court and it was directed that that court should record additional evidence of the parties and return the evidence together with its findings thereon to this Court. In pursuance of the order passed by this Court on February 3, 1977, the lower appellate court recorded the evidence of the parties on the above mentioned two issues remitted for trial by this Court. The plaintiff examined herself as PW 1 and Virendrakumar PW 2. The defendant examined himself as DW 1, Dhaiarndas DW 2, Keshav DW 3, Laxman DW 4, and Khoobchand DW 5. After considering the question of comparative hardship as contemplated by Section 14 l2) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (No. XVII of 1950) for short, 'the Act' hereafter) the lower appellate court opined that a decree may be passed for ejectment against the defendant in respect of one shop only so that that shop would be available to the plaintiff's son for doing his business It further held that the plaintiff has not been able to prove her case for ejectment in respect of both the shops. After the receipt of the findings from the lower appellate court, this county, on August 18, 1977 directed the parties, to file objections if any, within 15 days The appellant submitted his objections to the findings on September 3, 1977 praying therein that the findings of the lower appellate court may be modified and' both the issues may be decided in favour of the appellant where -/ by holding that the defendant -appellant would be put to greater hardship if one shop out of the two shops is ordered to be vacated The plaintiff - -respondent submitted objections to the findings on September 5, 1977 praying that decree for ejectment passed against the defendant in respect of both the shops should be maintained. Learned Counsel appearing for the appellant has raised the, following three points before me: 1. That lower appellate court has committed a serious error Of fact and law, when itself that the need of the plaintiff is reasonable and bonafide, 2. 'that the lower appellate court, while deciding the, two remitted issues. Wrongly 'held that greater hardship would be caused to the plaintiff if her suit for ejectment in respect of one shop is not decreed for the business of her son, and 3. that at any rate, the findings of the lower appellate court that if ejectment in respect of both the shops 'is ordered in favour of the plaintiff, no shop would be available to the defendant and that would cause hardship to him, has been arrived at after examining the pros and cons of matter and as such, the finding relating to comparative hardship being a finding of fact should not be interfered with and, the finding that ejectment of the defendant should be confined, to one shop only as recorded by the lower appellate court', should be maintained. Learned counsel appearing for the plaintiff respondent supported the judgment of the lower appellate court dated, May 8 1975 in which it was held that the need of the plaintiff is reasonable and bonafide On the question of comparative hardship, learned Counsel submitted that the reasons, given by the lover appellate court while deciding the remitted issues that the need of the plaintiff would be met by ordering ejectment in respect of one shop out of the two in possession &'occupation of the defendant for the business of the plaintiff's son are not sustainable in law and thus the finding in this regard is infirm and therefore, should be set aside and the decree for ejectment, passed by the lower appellate court in respect of the two shops should be maintained, In support of his arguments, learned Counsel drew my attention to Malai Kolandai Mudaliar v. M R Swaminathan 1970 RCR 551.