GOYAL, J. - (1.) THIS is the tenant's second appeal arising out of a suit for arrears of rent and eviction.
(2.) THE plaintiff-respondent No. 1 instituted a civil suit for arrears of rent and eviction on 22. 7. 1982 against the appellant and his nephew Sh. Nand Lal (respondent No. 2) with the averments that the suit shop was let-out to the defendants for a period of 15 years on 23. 3. 1967. Monthly rent agreed upon was Rs. 35/ -. Eviction was sought on the ground that the plaintiff's son Shyam Lal of 24 years of age would start his cloth business. Vide amended plaint, an additional ground of eviction was added that the defendants have failed to pay the rent for 13 moths after institution of the suit. Vide written statement, the tenancy was admitted, but the grounds of eviction were denied. Issues were framed. Evidence was recorded. Vide judgment dated 13. 4. 1993 learned Additional Munsif No. 1, Alwar giving the benefit of the first default in payment of rent decreed the plaintiff's suit for eviction on the ground of reasonable and bonafide requirement. First appeal preferred by one of the tenants Shyam Sunder was dismissed by learned Additional District Judge No. 1, Alwar vide impugned judgment dated 28. 4. 1998. Concurrent findings of two courts below have now been assailed by the defendant in the instant second appeal. Following substantial questions of law were framed by this Court on 24. 7. 1998:- (i) That the finding of Issue No. 1 is based on no evidence and wrong tests have been applied. In the facts and circumstances of this case no case of alleged necessity was established. If so, whether the impugned judgment and decree of both the courts below are not sustainable in law? (ii) That for deciding Issue No. 4 regarding comparative hardship wrong tests have been applied and in fact if the disputed shop will be got vacated the defendant will suffer grater hardship. Whether finding on Issue No. 4 is sustainable in law?
(3.) BOTH the questions co-relate, hence are taken up together. Section 13 (1) (h) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (in short the Act) provides that where the premises are required reasonably and bonafide by the landlord for the use of occupation of himself or his family, a decree of eviction shall be passed. Section 14 (2) of the Act provides that no decree for eviction on the ground set forth in clause (h) of sub-section (1) of Section 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. These facts are not in dispute that the plaintiff's husband Sh. Girdhari Lal is occupying the adjoining shop of the suit shop. The defendant No. 2 nephew and co-tenant of the defendant No. 1 started his separate business in 1974 and since then only the defendant No. 1 is in occupation of the suit shop. According to the statement of the plaintiff Smt. Narbada Devi her husband Girdhari Lal is carrying on cloth business in adjoining shop, her eldest son Mukesh is in service of L. I. C. , her youngest son is a student in B. A. classes and the suit shop is required for her son Shyam Lal to carry on cloth business. Presently, her son Sh. Shyam Lal is serving at his father's shop on payment of Rs. 400/- per month and they have no other shop. P. W. 2 Girdhari Lal husband of the plaintiff, P. W. 3 Ramesh Chand Singhal, P. W. 4 Shyam Lal, for whose requirement the eviction was sought, P. W. 5 Jayanti Prasad, P. W. 6 Inder Lal and P. W. 7 Hardwari Lal supported the statement of the plaintiff. According to the statement of the defendant Shyam Sunder he is carrying on his business of fans, radio etc. in the suit shop along with his sons and in the adjoining shop Girdhari Lal and his son Shyam lal carry on their cloth business and he has no other shop. D. W. 2 Jagdish Prasad and D. W. 3 Navneet Lal, D. W. 4 Surjan Singh and D. W. 5 Krishna Kumar have corroborated the statement of D. W. 1. ;