SUNIL KUMAR GARG, J. - (1.) THIS is a second appeal filed by the appellant- plaintiff against the judgment and decree dated 1.6.1984 passed by the learned District Judge, Jodhpur, by which he dismissed the suit of the plaintiff- appellant and allowed the appeal filed by the defendant-respondent against the judgment and decree dated 18.3.1981 passed by the learned Munsif, Jodhpur, whereby the suit of the plaintiff-appellant for eviction of the defendant- respondent on the ground of reasonable and personal necessity as envisaged under Section 13(1)(h) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as the Act of 1950), was decreed.
(2.) THIS second appeal arises in the following circumstances :- "The plaintiff-appellant filed a suit in the Court of Munsiff, Jodhpur on 4.7.1978 for eviction of the defendant-respondent from the suit premises stating that there is a house of the plaintiff-appellant situated at 10th B. Pal Road, Sardarpura, Jodhpur and in that house, there is a garage and the said garage is in the possession of the defendant-respondent as a tenant at the monthly rent of Rs. 35/-. Apart from this garage, the defendant- respondent has also taken two shops and one underground (sic) on rent from the plaintiff-appellant, but this suit is only confined for eviction of the defendant-respondent from garage only. The case of the plaintiff-appellant is that this garage is required by him reasonably and bonafidely as in June, 1977 he has purchased Ambassador car and for keeping that car, he had no other accommodation and, therefore, this garage is required by him reasonably and bonafidely and he has filed this suit against defendant-respondent for his eviction from the garage. The suit of the plaintiff-appellant was contested by the defendant-respondent by filing a written statement in the lower Court on 12.4.1979 admitting that he has taken the garage on rent, but he has stated that he deals in the business of glasses and hardware and this garage is being used for keeping the goods such as glasses, articles of hardware etc. He has denied that the plaintiff-appellant is in need of this garage and, therefore, the suit be dismissed. On the pleadings of the parties, the learned lower Court framed the following issues on 28.8.1979 :- (Vernacular matter omitted.) Thereafter, both the parties led evidence. The learned Munsif by his judgment dated 16th March, 1981 decided issues No. 1 and 2 both in favour of the plaintiff-appellant holding that the garage in question is required by the plaintiff-appellant reasonably and bonafidely and he has no other accommodation and, thus, decreed the suit of the plaintiff-appellant for eviction of the defendant-respondent from the garage. Aggrieved from the judgment and decree dated 18.3.1981 passed by the learned Munsiff, the defendant-respondent preferred a first appeal in the Court of the District Judge, Jodhpur. During the pendency of the first appeal, the defendant-respondent moved an application under Order 41, Rule 2 read with Order 6, Rule 17 and Sections 107 and 151, CPC on 8.9.1982 stating that the garage in question cannot be got vacated within five years from the date on which it was taken on rent and, therefore, the present suit of the plaintiff-appellant is hit by the provisions of Section 14(3) of the Act of 1950 and this ground no doubt should have been taken by him in the memorandum of first appeal, but it has been left due to oversight and the same is now being taken and, he may be permitted to amend his appeal by adding the following paragraph after para 15 of the memorandum of appeal :- (Vernacular matter omitted.) The plaintiff-appellant filed a reply to this application in the first appellate Court on 15.9.1982 stating that this preliminary objection cannot be taken now as to the same has not been taken by the defendant- respondent in his written statement in the lower Court as well as in the memorandum of first appeal in the first appellate Court. Furthermore, this point cannot be raised as the garage in question was taken by the defendant- respondent from the brother of the plaintiff-appellant when he was the owner of this garage. Therefore, he has been the tenant of this garage for more than five years and this application should be rejected. The learned District Judge decided the said application of the defendant- respondent in the main judgment which was delivered on 1.6.1984 and it was held that since the plaintiff-appellant as PW.1 has admitted in his cross- objection on 10.10.1979 that the disputed garage was given on rent near- about four years back, therefore, suit was filed by the plaintiff-appellant before the expiry of five years from the date the suit premises were given on rent to the defendant-respondent. Hence, the suit was barred by the provisions of Section 14(3) of the Act of 1950 and on this ground alone, the learned District Judge allowed the appeal of the defendant-respondent and dismissed the suit of the plaintiff-appellant as barred by the provisions of Section 14(3) of the Act of 1950. Note :- One thing has to be mentioned here that so far as the findings on issues No. 1 and 2 are concerned, the learned District Judge in his judgment dated 1.6.1984 has upheld the findings recorded by the learned Munsiff holding that the garage in question is required by the plaintiff- appellant reasonably and bonafidely and there is no alternative accommodation for the plaintiff- appellant and thus, he decided issues No. 1 and 2 in favour of the plaintiff- appellant, but creating (treating ?) the suit barred by the provisions of Section 14(3) of the Act, 1950, he allowed the appeal of the defendant- respondent and dismissed the suit of the plaintiff-appellant. Against the judgment and decree dated 1.6.1984 passed by the learned District Judge, the plaintiff-appellant has preferred this second appeal in this Court.
(3.) THIS Court while admitting this second appeal framed the following substantial question of law on 22.10.1984 :- "Whether the learned District Judge should not have allowed the defendant- tenant to raise the plea as per provisions of Section 14(3) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, without there being any averment in the written statement, issue or evidence or ground taken in the Memo of Appeal ?" ;