GUPTA, J. - (1.) THIS is defendant's second appeal in a suit for eviction of shop on the ground of reasonable and bonafide necessity of the plaintiff decreed by both the learned court below. Of course the suit was also filed on the ground of default but then the defendant was given benefit of Sec. 13 (6) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter after referred to as "the Act" ). Hence, I need not refer to facts.
(2.) A perusal of the judgments and decree shows that the question of reasonable and bonafide necessity and comparative hardship is covered by issues no. 2, 2a and 3 which was decided by the learned courts below against the defendant. In the pleading no indication was even given from either side as to "whether no hardship would be caused either to the tenant or the landlord by passing a decree in respect of a part of the premises only", (such expression shall hereinafter referred to as "partial eviction" ). Not only this even during evidence nothing was said on this aspect, so much so no such evidence has been led which may even have the effect of providing sufficient indication to the court as to whether no hardship would be caused either to the tenant or to the landlord by passing a decree in respect of a part of the premises only. Likewise even during the course of arguments before both the learned courts below no submission were made on the side of either parties on this question. Obviously therefore rightly or wrongly both the learned courts below did not record any finding on this question. When the appeal came up for admission on 22. 10. 99, it was admitted on the following substantial question of law: Whether in absence of there being any finding on the question of partial eviction of the shop in dispute as envisaged under Sub-sec. (2) of Sec. 14 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 both the courts below have no jurisdiction to pass the decree for eviction on the ground of reasonable and bonafide necessity as envisaged under clause (h) of sub-sec. (1) of Sec. 13 of the aforesaid Act? After service of the notices on 27. 4. 2000 when the matter came up before me for consideration of stay petition, I found that since the finding on the question of bonafide necessity returned in favour of the plaintiff is not under challenge, without going into the question as to whether it was necessary or not, I thought it proper to frame an additional issue as under:- " Whether in the facts and circumstances of the case including the size and location of the shop in question, no hardship would be caused either to the tenant or to the landlord by passing a decree in respect of part of the premises in question?" and remitted this issue to the learned trial court under Order 41 Rule 25 with a direction to return its finding on this issue on the basis of the material which exists on record only but after hearing both the parties. This order was passed in presence of the learned counsel for the parties and irrespective of the question as to whether it has any bearing or not, it may be mentioned as a fact that on that day also no request was made by the learned counsel for the parties for being permitted to lead evidence. Be that as it may. Pursuant to this order, the learned trial court after considering various judgments of this Court observed that in para 1 of the plaint only four boundaries of the shop are given and measurements are not there and that merely on the basis of boundaries, it is not possible to decide as to whether the shop is capable of being divided and that this Court in Ram Babu vs. Padam Chand (1) has held that when suit premises cannot be divided, no decree for partial eviction can be passed. However in absence of the measurements the learned court below held that no the basis of the material available on record on opinion can be given on this question. After receipt of this finding the matter was finally heard by me on 10. 8. 2000.
(3.) BEFORE me, on 8. 8. 2000 the learned counsel for the appellant filed an application u/s. 100 (5) C. P. C. and Sec. 151 C. P. C. seeking to urge that apart from the question framed, other questions formulated in the memo of appeal do also arise in the present appeal, therefore, they should also be framed and decided. For this purpose I again went through the questions formulated at page 8 of the memo of appeal. Regarding question No. 2 the learned counsel utterly failed to point out the courts below to have based their finding on any admission of the defendant. As such this question does not arise. Regarding questions no. 3 and 4 which relate to bonafide necessity and comparative hardship, notwithstanding constraints of Sec. 100, I heard the learned counsel at length, and also went through the entire evidence of the parties, and find that these issues have also been rightly decided by the learned courts below, more particularly in view of the principles laid down by Hon'ble Supreme Court in the judgment reported in Raghunath G. Panhale (dead) by L. Rs vs. M/s. Chhaganlal Sundarji & Co. (2) and Shiv Sarup Gupta vs. Dr. Mahesh Chand Gupta Regarding 5th question the learned counsel contended that the learned lower Appellate Court has no mentioned the points arising for determination of the appeal, nor has decided the case issue wise, and therefore the judgment is vitiated on account of non-compliance of Order 41 Rule 31 C. P. C. A bare perusal of the judgments of the learned courts below show that both the learned courts below have decided issue no. 2, 2a and 3 together being closely inter-related and before the learned lower Appellate Court also only challenge was to these issues and the same have been decided together. As such the point of determination before the learned court below precisely was about existence of reasonable and bonafide necessity and comparative hardship, and the same have been decided. As such this question also does not arise. The other contention raised in the application was that since the question of determination of partial eviction requires evidence, the matter should be remitted back to the learned court below with opportunity to the parties to lead evidence and thereafter the question should be decided. ;