N. K. JAIN, J. - (1.) THIS appeal is directed against the judgment and decree passed by learned Civil Judge,udaipur in case no 62/90 dt. 15. 4 91 whereby he has confirmed the judgment and decree of learned Munsif and Judicial Magistrate, Udaipur dt. 20. 6. 90. in civil suit no. 285/91.
(2.) BRIEFLY stated the facts of this case are that the defendant appellant is in possession of the disputed premises as a tenant since long. It was alleged that the respondent had purchased a part of Shivrati House, (described in para 1 of the plaint) by a registered sale-deed from one Bhim Singh. A notice dt. 24. 9. 1980 was issued informing the Education Department of the fact that he has become the owner by purchasing the disputed house for his own use. thereafter on 16. 10. 1980 another notice that due rent from 6. 9. 1980 to 6. 4. 1981 is not paid and to evict the house within two months as the house is required for his own use but it was of no avail. Thus, the plaintiff respondent filed a suit on the ground of default as rent has not been paid for more than six months and in case the suit premises is not vacated be will suffer greater hardship as house in which be is residing is only of one room with kitchen and it is not sufficient. On the pleadings of the parties, the learned trial court framed as many as 6 issues. The plaintiff examined P. W. 1 Kantilal and P. W. 2 Keshulal. The defendant has examined D. W. 1 Uma Chaturvedi in support of its case. The learned trial court after bearing both the parties and after considering material on record decreed the suit on the grounds of defaut and personal and bonafide necessity. Aggrieved by this the defendant preferred an appeal but the same was dismissed on 15-4-91. However, 3 month's time was granted to vacate the premises as girls' school was ruunig. Hence, the Department has filed this second appeal. Mr. Jasmatia and Mr. Bhati have not challenged the finding on the ground of default and reasonable and bonafide necessity bur submitted that the learned trial court without considering the point of partial eviction u/s 14 (2) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 passed a decree in favour of the plaintiff respondent. Mr. Khatri has submitted that no decree for partial eviction could be passed in the instant case. He has submitted that as the appellant has not raised this point neither in the written statement nor before the learned trial court nor before the first Appellate Court, there fore, this argument should be deemed to have been abandoned by the defendant and now it is not open for him to canvass this point. He has placed reliance on Narsingh Das Vs. Jethmal (1 ). He has also submitted that the courts below while considering issue ho. 1 has considered this aspect as the appellant has failed to adduce any evidence that the respondent is in possession of any other premises, than the purchased one the suit premises and the appellant has also not been able to establish that he will suffer hardship in comparison to the respondent who is residing in only one room having six members in the family, therefore, it will be a futile exercise to send the case in view of Rajkumar vs. Mehar Chand (2) and a decision of this Court in Brij Mohan and Anr vs. Hargur Das He has further submitted that the courts below have passed a decree on the ground of personal and bonafide necessity in addition to ground of default, so, it is not necessary to consider the question of partial eviction as provided in S. 14 (2) of the Act. He has placed reliance on Inder Chand Vs. Smt. Lilawati (4j. I have heard learned counsel for the parties and perused the record. Section 14 (2) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as the Act) reads as under.- "sec. 14 Restriction on eviction. . . (1 ). . . (2) No decree for eviction on the ground set forth in clause (h) of sub-section (1) of Sec. 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.) IT is no doubt true that it is incumbent upon the court to consider the point of partial eviction while passing a decree on the ground of reasonable and bonafide necessity. In the instant case D W. 1 Uma Chaturvedi has not been able to show when the rent from 6-9-1980 to 6-4-1981 was paid and the learned trial court on the basis of evidence while deciding issue no 4 has held that the,appallant has not deposited rent from 6-9 1980 to 6-4-1981. IT has also come on record that rent was not deposited upto 20-4 82. The rent was determined on 20-8-81. The rent for the month of August, 1982 was deposited only on 15-10-1982, whereby he committed second default. The defence of the appellant was struck off on 20-9-86. Admittedly, the Department has not filed any revision u/s. 115 CPC or appeal u/s. 22 of the Act, against the order of striking off defence. As such it has become final. This Court in Jnderchand Vs. Smt. Lilawati (supra) after relying on Modula India Vs. Kamakshya Singh (5) has held that once defence is struck off, the defendant will not be entitled to lead any evidence on his own. The learned trial court after considering material on record passed a decree on the ground of default, which has been affirmed by the learned Appellate Court and has also not been challenged before me. Under the circumstances, the argument of remanding of case for considering partial eviction has no substance as in the instant case Sec. 14 (2) of the Act is not applicable. In this case suit is not only based on the ground of reasonable and bonafide necessity but also on the ground, other than 13 (1) (h)of the Act i. e. default. Once a decree on the ground of default has been passed, in such a case the tenant will not be able to substantiate his case as he has lost his right to lead other evidence. Moreso, the defence of the tenant has been struck off and a decree on the ground of default has been passed. IT would a futile exercise as Sec. 14 (2) will not come into play. Keeping in view, the Legislature in its wisdom made S. 14 (2) of the Act applicable to the cases covered u/s. 14 (l) (h) of the Act only i. e. of reasonable and bonafide necessity. Therefore, as discussed above, in my opinion, in this case it is not necessary to consider the case of partial eviction as a decree on the ground of default has been passed. Mr. Jasmatia, learned Addl. Advocate General has not been able to show otherwise. As such no substantial question of law is involved in this case and no interference is called for. However, Mr. Jasmatia has prayed that some time may be granted to vacate the disputed premises and to grant time at least upto the expiry of this academic session, which is to expire on 30. 5. 92. Under the circumstances of the case, I deem it just and proper to grant time upto 30. 6. 92 to vacate the disputed premises provided the appellant furnishes an undertaking within one month from today to the effect that it will not part with or transfor the possession to any one during this period and will handover peaceful and vacant possession to the respondent on or before 30. 6. 92 and deposit the amount of rent due along with rent upto 30. 6. 92 within the aforesaid time in advance, failing which the respondent will be free to execute the decree at once. As already stated the appeal has no force, so it is hereby dismissed with the above observations. .;