MADAN, J. - (1.) THIS revision petition has been preferred by the defendant-petitioner (for short "the defendant") challenging the order dated 6. 12. 1999 passed by learned Additional District Judge No. 8, Jaipur City, Jaipur in Civil Regular Appeal No. 5/99 whereby, the said court had disallowed the relief sought for by the defendant by way of an application moved under Order 6 Rule 17 read with Section 151 CPC seeking amendment of the written statement filed by him in the said suit.
(2.) THE facts which are relevant for deciding the controversy between the parties briefly stated are that plaintiff-respondent (for short "the plaintiff") filed a suit against the defendant seeking eviction on the ground of reasonable and bonafide requirement of the suit premises for running business by his son. As regards partial eviction, the plaintiff pleaded that his need for the suit premises could not be satisfied by partial eviction. THE suit was contested by the defendant denying the averments made in the suit as regards plaintiff's need for the suit premises. THE learned trial Court decreed the suit vide its judgment & decree dated 14. 12. 1998 in favour of the plaintiff as regards the reasonable and bonafide necessity. On Issue No. 3 regarding partial eviction, the trial Court while deciding the same in favour of the plaintiff held that the said issue did not require any consideration or examination for the reason that the plaintiff deposed that his need could not be satisfied by partial eviction and that the same was the case of the defendant. Being aggrieved by the Judgment & decree of the trial Court as aforesaid, the defendant preferred Regular Appeal before the Appellate Court i. e. ADJ No. 8, Jaipur City, Jaipur challenging the finding of the trial Court on Issue No. 3 regarding partial eviction. The appeal is pending adjudication before the Appellate Court. During the pendency of the said appeal, the defendant filed an application under Order 6 Rule 17 CPC seeking amendment of the written statement as necessitated for determining the controversy between the parties as regards partial eviction. As averred in the application, there could be division of the shops in question so as to enable both the parties to carry out their business smoothly and conveniently by opening their respective shops on independent roads. It was further averred in the application that the plaintiff had sufficient accommodation on the first floor of the premises having 4 rooms in his possession and further the premises on the first floor, available with the plaintiff, could be very well used for commercial purpose if the plaintiff had need of the premises for his son. The plaintiff further did not reside in the suit building. Further, the plaintiff can carry out business for his son at the first floor which is quite suitable. Plaintiff in rebuttal, denied the possibility of partial eviction on the ground that the lane on the side of the suit premises was dirty and that the shop could not be opened on that side besides the said lane being of 6 feet in width only. As regards the accommodation, available on the first floor, the plaintiff stated that the premises on the first floor being in occupation of tenant Arun Kumar and Mahesh Bansal was not available with him as Civil Suit No. 398/1995 filed by the plaintiff for recovery of possession of the said premises is pending in the trial Court and even if the premises on the first floor is not suitable for running business. The Appellate Court after hearing the learned counsel for the parties on the application under Order 6 Rule 17 CPC seeking amendment in the written statement rejected the same vide its order dated 6. 12. 1999. Hence, this revision petition. It has been contended by the learned counsel for the petitioner that the trial Court without making any judicial exploration on Issue No. 3 regarding partial eviction decided the same by recording finding in favour of the plaintiff and held that the said issue did not require any consideration or examination for the reason that the plaintiff had deposed in evidence that his need could not be satisfied by partial eviction and the same was the case of the defendant (petitioner herein ). The contention of the learned counsel for the petitioner is that the trial Court had in this regard totally ignored the mandate of Section 14 (2) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (for short "the Act of 1950") which stipulates, as under:- " 14. Restriction on eviction:- (2) No decree for eviction on the ground set forth in clause (h) of sub-section (1) of Section 13 shall be passed if the court is satisfied that, having regard to all the circumstances of the case including the question whether other 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. 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. "
(3.) THE aims and object of the legislative mandate in inserting Section 14 (2) in the Act of 1950 are that it is the primary duty of the court to apply the doctrine of comparative hardship in every case of eviction on the basis of bonafide and reasonable requirement of the landlord before the decree of eviction is passed in favour of the landlord on the said ground. THE bonafide need has to be objectively considered by taking into consideration the comparative hardship of the respective parties to the case i. e. both the landlord and the tenant and; (a) the court has to be satisfied as to whose hardship would be greater by passing a decree of eviction i. e. landlord or the tenant in respect of a part of premises and b) whether the suit premises in question is divisible in nature so as not to result in material hardship to a party who can be easily accommodated in the part of the premises notwithstanding the decree. Though, there is no definite guideline in this regard for judging or assessing the comparative hardship of any party, the hardship of both the parties is to be compared in weighing the evidence in every case by the court. It is the satisfaction of the court which is subjective or objective assessment of the material on record on appraisal of facts and circumstances of each particular case. It is settled position established by precedents and hence the court is free to record a finding of fact on this aspect after examining the comparative hardship of the parties on assumption of facts to be considered objectively on the basis of evidence adduced by both the parties. It is pertinent to mention in this connection that the finding of facts which have been recorded by the trial Court are to the effect that shop premises in question has two separate outlets. On one side, the shop is measuring 6x6 feet in width & 21 feet in length and on the other side the shop is measuring 7 feet in width & 7" x 3" in length and in case it is divided in two parts then, on one side the shop would be measuring 6x6 in width and 13 feet in length and on the other side 7 feet in width and 14 feet in length. While, the middle wall can be raised upto 6" in width. The aforesaid application was contested by the plaintiff on the grounds that the shop is not divisible looking to the bonafide need and requirements of his family. On this aspect, the trial Court recorded the evidence of the parties and thereafter made a finding to the effect that division of the shop premises was not possible. On the aspect of the comparative hardship the issue framed by the trial Court was to the effect that as a result of the partial eviction, whether the requirements of the plaintiff could be fully satisfied? From the evidence led on behalf of the plaintiff, it was specifically contended by the learned counsel that the plaintiff himself had not only examined himself but also by way of corroborative evidence had supported his version that division of the shop is not possible and even if it is done, the basic requirement regarding bonafide need will not be satisfied. Consequently, the trial Court recorded the finding on the said issue in favour of the plaintiff. ;