- (1.) THIS second appeal having been filed by legal representatives of the defendant-tenant (Chandaram who died pendente suit) arises out of the judgment and decree of the trial court which were affirmed by the first appellate court also.
(2.) PLAINTIFFS (namely, Girraj Sharan, Cm Prakash, Pradeep Kumar, Suresh Kumar (sons) and Smt. Resham Kaur (widow) of Shri Bal Krishan Sharma, instituted a civil suit and sought therein a decree of eviction against the defendant-tenants (appellants) on the following assertions : (1) that the tenant had not paid rent of the suit shop for the period from 16. 2. 1970 to 28. 2. 1972 and, therefore, the tenant had been defaulter; (2) that, the suit shop is needed reasonably and bonafidely by the landlord so as to carry on business of electrical apparatus etc. by Suresh (plaintiff No. 4), of which he has got good experience; (3) that, the suit shop had been parted with possession by the tenant to Motiram and, therefore, the suit shop has been sublet and seemingly not needed by the tenant, and (4) that the tenaney has come to an end as the tenant in their reply to the notice denied the ownership of the landlord (plaintiffs ). The defendants denied the plaintiffs' assertions and did also deny the title of the suit shop of the plaintiffs and their stand was that the suit shop was owned by the temple Shri Dauji Baldev Ji Maharaj. As regards default in payment of rent, they pleaded that they bad already deposited the rent upto 15. 4. 1972 under Section 19-A of the Rajasthan Premises (Control of Rent & Eviction) Act (for short 'the Rent Control Act'), They also pleaded that they never denied the ownership of the plaintiffs in their reply to the notice. The suit was also got amended in regard to the plea of comparative hardship. On the basis of the pleadings of the parties, the following issues were framed : *** The evidence was led by both the parties in support of their respective case. After hearing both the parties, the learned trial Court under its judgment & decree dated 8th April 1983, decreed the plaintiff's suit for eviction against the defendants-tenant deciding issue Nos. 1, 5 and 6 in favour of the plaintiff. Issue No. 2 was decided in favour of the tenant and under issue No. 3 the tenant was held not defaulter.
(3.) THE conclusion drawn on issue Nos. 1, 5 & 6 by the trial Court and the decree of eviction were affirmed by the first appellate court in appeal moved by the tenants. Hence this second appeal. Issue Nos. 1 & 5 relate of the questions of comparative hardship & bonafide and reasonable necessity of the suit shop. Issue No. 6 relates to the question of denial of the title of the landlord. The concurrent findings arrived at by the courts below under issue Nos. 1, 5 & 6 are sought to be challenged in this second appeal and that apart, the impugned decree of eviction is also sought to be assailed raising a question of partial eviction as provided in 2nd para of sub-section (2) of Section 14 of the Rent Control Act. Undoubtedly, such a question of partial eviction neither before the trial Court nor the first appellate court, has been raised inasmuch as it has also not been raised in memo of second appeal. Only during the course of arguments, the learned counsel for the defendants has raised a completely new question by contending that since it has not been considered by the two court-below and there is no findings having been arrived at or recorded as to the partial eviction as contemplated in sub-sec. (2) of sec. 14 of the Act, thereby it has resulted in miscarriage of justice and in violation of the provisions of the Rent Control Act. Much stress has been laid on this point seeking remand of the case to the trial court for being considered the question of partial eviction. ;