S.K.MAL LODHA,J. - (1.) THIS appeal has been filed by the plaintiff-appellant (landlord) against the appellant order dated November 15, 1982 of the Additional Civil Judge, Jodpur passed in Civil Appeal No. 21 of 1982, by which he accepted the appeal and remanded the case to the trial Court after framing an additional for fresh decision.
(2.) THE plaintiff-appellant filed a suit against the respondent (tenant) in respect of a shop on March 13, 1978 for arrears of rent and ejectment. The ejectment was sought on the grounds of default and reasonable and bone fide necessity. The suit was contested by the defendants on various grounds by filing a written statement on September 4, 1978. While denying the allegations made by the plaintiff in the plaint other pleas were also raised. The learned Munsif framed as many as 11 issues inclusive of the relief. The plaintiff examined P.W. 1 Radha Kishan, P.W. 2. Sunil Behari, P.W. 3. Jethmal. P.W. 4. Som Dutt and P.W. 5. Kedardass. In rebuttal, the defendant examined himself as D.W. 1, D.W. 2. Daulat Singh, D.W. 3. Jethanand, and D.W. 4 Kanhaiyalal. Documentary evidence of the parties were also exhibited and proved. The Learned Munsif, by his judgment dated August 1, 1980, recorded the following findings : (1) That the defendant had executed the 'Kabulist' dated September 25, 1964 in favour of the plaintiff; (2) That the plaintiff requires the shop reasonably and bonafide for himself and his family for business : (3) That the plaintiff will be put to greater hardship than the defendant if the decree for ejectment is not passed in favour of the plaintiff and against the defendant; (4) That the defendant had tendered the rent to the plaintiff from March 1, 1977 in time whereby deciding issue No. 4 in favour of the defendant and against the plaintiff : (5) That the plaintiff has failed to establish that the defendant did not get the whitewash done yearly as per agreement whereby deciding issue No. 5 in favour of the plaintiff as against the defendant. (6) That the defendant is entitled to Rs. 1875/- and Rs. 99/- on account of rent and damages for use and occupation and interest respectively. (7) that the plaintiff is not entitled to damages for use and occupation @ Rs. 400/- per month from the date of the suit; (8) that the plaintiff is not entitled to the amount of 328/- as house tax from the defendant; (9) that there is no misjoinder of parties; and (10) that the defendant is not entitled to any compensatory costs. In view of the aforesaid findings, the learned Munsif decreed the suit of the plaintiff for ejectment and against the defendant in respect of the shop described in para 1 of the plaint. He ordered that the plaintiff will be entitled to withdraw the deposited amount and further that the plaintiff will get Rs. 158/- P.M. in lieu of rent. 2. An appeal was filed by the defendant against thejudgment and decree dated August 1, 1980 of the Munsif City, Jodhpur, which was transferred to Additional Civil Judge, Jodhpur accepted the appeal and remaned the case to the Munsif City, after framing the following issue : - Whether in the circumstances of the case, a decree for eviction should be ordered in respect of the entire holding or eviction from part of the premises would be sufficient ? The learned Additional Civil Judge directed the learned Munsif to decide The suit afresh after taking evidence of the parties on the above mention issue. Thejudgment was rendered on November 9, 1982. Being dissatisfied with the appellate judgment and order of remand, the plaintiff-appellant has filed this appeal under Order 43, rule l(u), C.P.C. When the appeal came up for admission on December 22, 1982, show cause notice was ordered to be issued. Thereafter on Feb. 2, 1983, in the presence of the learned counsel for the parties, the Court mentioned that as there is a very short question, about the validity of the remand order, is involved in this appeal, it be listed for admission on February 21, 1983 and that the appeal itself shall be disposed of on that day. On March 1, 1983, learned counsel for the parties stated that they went to seek instructions about the dimensions of the shop, as the arguments have been advanced by the learned counsel for the appellant that in a case of single shop, the question of partial eviction does not arise. On March 15, 1983, learned counsel for the parties submitted that an application for grant of leave to amend the Written statement was filed and was under consideration in the trial Court. The hearing of the appeal was deferred. On April 12, 1983, learned Counsel for the parties stated that the application for amendment of the Written statement has been dismissed by the trial Court . Learned Counsel for the appellant prayed for time for filing revision against the order dismissing the application for amendment of the written statement. This Court declined to grant time.
(3.) I heard the arguments of the learned counsel for the parties on April 13, 1983 as ordered on February 2, 1983.;