GUPTA, J. - (1.) THIS appeal has been filed by the defendant, against the decree for eviction, passed by both the learned Courts below, on the ground of reasonable and bonafide necessity of the plaintiff, and by also deciding the question of comparative hardship and partial eviction, and subletting, against the appellant.
(2.) THE facts of the case are, that a suit for eviction has been filed on 23. 5. 85, by the three plaintiffs, being the heirs of Banshilal, i. e. his widow Radhabai, son Shantilal, and widowed daughter Shushila, alleging inter-alia, that the property described in para-1 of the plaint, being a Nohra including a shop, was let out to the defendant No. 1 (M/s. Ashuji Kewalchand) by the deceased landlord Banshilal and plaintiff No. 2 Shantilal, on 11. 2. 63, at a monthly rent of Rs. 42/-, the month of the tenancy was on the basis of Hindi Miti, rent note was executed on 14. 6. 63. THEn in Samvat Year 2030 a shop was constructed, therefore, the premises comprised of Nohra and shop, and since then the rent was increased to Rs. 100/ -. It was alleged, that since Banshilal has expired, his heirs being his widow, son and daughter have been impleaded as heirs. It was then alleged, that the defendant has neither tendered nor paid rent after Baisakh Vad Amavas Samvat 2037. Thus, 45 months' rent had fallen into arrear, and the defendant has become defaulter. THEn the plaintiff pleaded the premises to be reasonably and bonafide required by the plaintiff No. 2, pleading that presently the plaintiff No. 2 is sitting on his nephew's (Bhanja) shop. It was pleaded, that firstly that shop does not belong to Shantilal, secondly Shantilal had five nephews who require the shop for carrying on their business, and they want to evict Shantilal. Apart from all this, Shantilal needs a bigger premises, as he has one wife, four sons and two daughters, and apart from that, he would manufacture gold and silver ornament, refine the metal, and for that he would install machinery, and thus he needs a big Nohra. It was alleged, that the machines are presently installed at different place in Bhanwarlal Banshilal's shop, and he requires a shop for selling the prepared goods, and thus he requires the entire premises. It was pleaded that presently the refining work is required to be got gone by the plaintiff from other persons. It was also pleaded that the defendant does not require the shop, as defendant No. 1 has closed his business, and has further let out the premises to defendant No. 2 (M/s. Asuji Bharatkumar), and the grain business has been shifted to Krishi Upaj Mandi, and consequently the defendant No. 1 has shifted there, where he has a godown of much bigger size, and a shop, apart from the fact,that the defendant No. 1 has various other big plots, in Nehru Nagar, Mahavir Nagar, and Dhanmandi Scheme, Pali. It was also alleged that the defendant No. 1 has also purchased a shop near the disputed property, and if desires, it can get many other accommodation. It was also pleaded, that the defendant No. 1 has started textile business (trading in vials) in the name and style of Kumod Trading; at different place. Thus, he does not need the premises, and thus the comparative hardship is in favour of the plaintiff. It was then alleged, that the firm Ashuji Kewalchand has been closed some 5-6 years ago, and thus the defendant No. 1 does not need the shop. That apart Sohanraj, who was a partner in the said firm, and had purchased stamp, he and his other partner Mishrilal, have started separate business, in the name and style of Mishrimal Kewalchand, in godown No. 9 in Krishi Upaj Mandi, which is much bigger than the suit property, and is in the name of Mishrimal, and Sohanraj has another godown No. 50 in his name. Thus both the partners are carrying on independent business, and have much bigger sized godown. THE plaintiff then alleged, that the defendant No. 1 has handed over the premises to defendants No. 2, therefore also he is liable to eviction. Interalia with these pleadings prayer for eviction was made. The defendants filed a joint written statement on 27. 1. 1986, contending interalia, that the defendant No. 1 partnership firm is in existence since much before taking the premises on rent, whose partners were Mishrimal and Sohanraj, and they continued to be partner till dissolution of the firm, which was dissolved on 22. 10. 1979. It was admitted, that the premises was taken on rent by defendant No. 1, as alleged. It was denied that the tenancy was according to Hindi month. Then, it was also denied, that the plaintiff constructed shop in the Nohra, or that therefore rent was increased to Rs. 100/ -. It was pleaded that the shop existed at the time of initial commencement of the tenancy, and tenancy included the shop. Of course, rent was increased in 2030, but it was on the tenant of forcible dispossession. It was pleaded that the rent was paid up to Baisakh Vadi Amavas 2037, by Sohanraj, in the capacity of firm Asuji Bharatkumar (defendant No. 2), but in the rent note, the entry made regarding payment of rent was tampered with, and the name of Asuji Bharatkumar has been erased, and that, thereafter the rent was tendered but the plaintiff did not receive, on the ground, that he wanted to enhance the rent to Rs. 200/-, so much so that on the defendant declining to increase the rent, the plaintiff destroyed the rent note. It is pleaded that one of the partner Mishrimal separated, the sohanraj continued to be tenant, and is continuing till the date. Rent was sent by money order, which also, the plaintiff declined to receive. Then, notice was given, but that was also not responded. Thus, the defendant is not a defaulter. It was pleaded that the plaintiff does not require the suit premises. The plaintiffs simply want to enhance the rent. The allegation of plaintiff sitting in nephew's shop was denied. The plaintiff's having five nephews, and their intending to establish separate business was also denied. It was pleaded that Shantilal is carrying on business comfortably and peacefully in his family premises, and has big residential apartment, where also business can be carried. Thus, the requirement was denied. It was pleaded that the job of refining metal is done by Niargars and not by goldsmith. It was pleaded that Sohanraj requires the premises, and is carrying on grain business, Sohanraj is continuing in possession as tenant, and is carrying on business in the name and style of Asuji Bharatkumar, and thus Asuji Bharatkumar is not a subtenant, rather it is a partnership firm, wherein apart from Sohanraj his son Rameshchandra is partner. It was also denied that grain business is also shifted to Krishi Upaj Mandi, rather the grain business is carried on in Rui Katla and Dhanmandi which adjoin each other. It was pleaded that defendant No. 1 has no godown or shop in Krishi Upaj Mandi, nor does it have any plot in Nehru Nagar, Mahavir Nagar, or Dhanmandi Scheme, nor has he purchased any shop near the suit premises, nor does he carry on any business in the name of Kumod Trading Co. , and that if he is evicted, he would suffer great hardship, as his business would be closed, and outstanding would become bad debts. Denying the averment of subletting, it was pleaded, that since dissolution, original tenant Sohanraj is continuing in possession and carrying on business, even after dissolution, in the name and style of M/s. Asuji Bharatkumar, wherein apart from himself, his son Rameshchandra has been taken as a partner, who lives with Sohanraj. After filing of the suit, the plaintiff filed an application on 25. 9. 1987, seeking to add a ground of material alteration, alleging that the defendant has covered the Nohra with iron sheets, as a result of which the light and air of open Chowk has been closed. This application for amendment was allowed vide order dt. 16. 12. 1987, being subsequent event, as this was alleged to have been done during pendency of the suit. The plaintiff accordingly filed amended plaint on 22. 12. 87, and added para 5a, alleging that on 10. 9. 87 the defendant has made above material alteration. The defendant thereafter filed an amended written statement on 10. 7. 88, wherein this para 5a was denied as after thought. It was contended that tin shed existed since much before commencement of the tenancy, and he has not done any material alteration. The learned trial Court framed 12 issues. However issues No. 8 and 9 were subsequently not pressed. Issue No. 1 related to defendant No. 1 being defaulter. Issue No. 2 related to plaintiff's reasonable and bonafide necessity, issue No. 3 related to comparative hardship, then issue No. 4 comprehended the question as to whether the defendant has additional premises, on which ground he is liable to be evicted: however, this issue was not pressed by the plaintiff. Then, issue No. 5 related to ground of subletting. Issue No. 6 related to material alternation. Issue No. 7 related to plaintiff's entitlement to Rs. 3846/ -. The other issues need not detain me.
(3.) THE learned trial Court decided issue No. 1 and 7 together, and it was considered, that even according to the defendant, he has paid rent upto Baisakh Vad Amavash 2037. THEreafter rent was tendered but was not received, and money order was also refused. THEn, it was found that amount has not been deposited under Section 19a. THEn, after considering some judgments of this Court, it was found, that since the defendant has not deposited rent under Section 19a, nor has he given any notice to the plaintiff to inform his bank account, therefore, the defendant is defaulter, and both the issues were decided in favour of the plaintiff. THEn issues No. 2 and 3 relating to bonafide necessary and comparative hardship were also decided together. While deciding these two issues, the learned trial Court recapitulated the evidence of the parties, and then considered the contention of the parties, it was also considered, that the case is pending for the last 15-16 years, and during this time sons of plaintiff No. 2 has also grown up. THEn various judgments of this Court and Hon'ble the Supreme Court were considered, and it was found, that the plaintiff has reasonable and bonafide necessity, as his nephews want to evict him, and he has no other shop; then, the plaintiff is best judge of his requirement, as to where he wants to carry on his business. It was considered that apart from the plaintiff, he has four sons, and thus for five persons, to work, he requires the premises. THEn, considering comparative hardship, it was considered, that the defendant is, after all a tenant, and he should have prepared himself mentally, that sometimes he is to vacate, and therefore, if the tenant is required to take another premises on rent, it cannot be said to be uncalled for. Interalia with these findings, the two issues were decided in favour of the plaintiff. THEn, coming to issue No. 5 it was considered, that admittedly the shop was let out to defendant Asuji Kewalchand, which comprised of two partners, Sohanraj and Mishrimal, which firm has been dissolved vide Ex. A. 5, leaving partner of defendant No. 1, being Sohanraj, in his personal capacity, and thereafter he constituted another firm, being Asuji Bharatkumar, by inducting his son, and thereby he lost the right of continuing to be tenant, as it amounts to subletting. THEn the contention about the defendant No. 2 having paid the rent was negatived, on the ground that books of accounts of defendant No. 2 were not proved, while it was proved,that rent was paid by Sohanraj in his personal account, and does not appear to have been deposited in the capacity of partner of defendant No. 2. Thus the issue was decided in favour of the plaintiff. THEn, issue regarding material alternation was decided against the plaintiff. In the result the suit was decreed. During pendency of the suit of plaintiff No. 3 the daughter of Banshilal expired, and her legal representatives were substituted. In appeal the findings of the learned trial Court were challenged. Regarding bonafide necessity it was contented in the appeal, that a shop of plaintiff respondent Radhabai is available for business of the plaintiff, which is situated in the north of the shop of Gyan Prakash, who carries business in the name and style of Bhanwarlal Banshilal, which measures 15 x 30 ft. and this Gyan Prakash is real nephew (Bhanja) of plaintiff Shantilal, but this aspect has not been considered by the learned trial Court, and that the plaintiff is telling lie about no other shop being available. Thus, the requirement of the plaintiff is not established. Then, the other findings of subletting, and comparative hardship were also challenged. Then, it was also contended in the appeal that there is no pleading on the side of the plaintiff regarding partial eviction, and no issue has been framed, and no finding has been given, which was required to be done mandatorily, and it was also contended, that from the evidence available on record, it is clear that the premises is a big Nohra, and shop is situated in the north west corner. The learned lower Appellate Court after cataloguing the facts and framing of issues, and listing the evidence of the parties, and recapitulating, rather giving resume of the evidence of the parties, noticed the contentions of the counsel for the parties, and then proceeded to consider the matter issue wise. Deciding issue No. 1 it was held, that the defendant is not a defaulter, inasmuch as, there is no requirement of law, that if the rent is tendered, and if the landlord refuses to receive it, the tenant shall be under obligation to ask for the bank account, or to deposit it under Section 19, and thus issues No. 1 and 7 were decided in favour of the defendant. Then, deciding issue No. 5, regarding subletting, it was held, that of course Sohanraj has purchased the stamp, but there is nothing to show that the plaintiff had knowledge of dissolution, and had treated Sohanraj alone to be the tenant, there is no pleading of acquiescence in the written statement. It was also found that if there is partnership firm, and new partners enter, it would amount to relinquishment of possession. Then, it was found, that earlier Mishrimal and Sohanraj were in joint possession as tenant. Then, it is pleaded that Sohanraj alone remained a tenant, then Sohanraj and Rameshchandra jointly became tenant, and there is no evidence about this being in the knowledge of plaintiff, but then it was pleaded that this course is permissible. It was found that if the plaintiff had come to know of this fact, and he had waived this, then such defence would have been taken, which has not been taken, rather it is established from the defendant's pleading and the documents itself, that earlier defendant No. 1 was the tenant, and new defendant No. 2 is a separate partnership firm. However, the mere fact that one partner is common, is of no consequence. Then, both the learned counsel relied upon the judgment in 1981 (i) RCJ 592, which was approved by Hon'ble the Supreme Court in 1998 SCC 3214. Thus, it was found, that the issue was rightly decided in favour of the plaintiff. Then, deciding issues No. 2 and 3 together, it was considered, that the learned trial Court has discussed in detail, that Shantilal has to establish machinery for cutting and refining gold and silver, stretching wire, and thus four machines are required to be installed, and also to carry out goldsmith's business. Then, the contention was considered, that this type of business is carried on in the premises measuring 10 x 10 ft. , and therefore, partial eviction should have been ordered. As against this, the plaintiff contended, that he is the best judge of his requirement. The learned lower Appellate Court found, that plaintiff requires place for installing four machines, space to sit, and store the merchandise, and for all this, it is the plaintiff who is to decide as to how much place is required. It was contended by the plaintiff that in the present age size of jewelry shop is to be determined according to prevalent market condition, and the plaintiff cannot be compelled to carry on business in the small shop. Learned lower Appellate Court agreed with this submission. Then, regarding shop of Radhabai, it was found, that the contention is raised on the basis of the statement of Gyan Prakash, but then no documentary evidence has been produced, while the plaintiff site alongwith his nephew, and the plaintiff is the best judge of his requirement. Then, availability of other premises with the defendant was highlighted, and findings of the learned trial Court were upheld. Then, regarding partial eviction, it was found, that of course no issue has been framed, and no finding has been given, but then, since defenant Sohanraj has sizeable other place, and plaintiff requires to establish a new business, by commissioning machines, and establishing a shop, in such circumstances, partial eviction cannot be ordered. In addition, it was also held, that even the defendant himself has not taken a plea about possibility of partial eviction, and while in witness box, he has specifically deposed, that partial eviction cannot be done. Then, reliance was placed on the judgments in 1984 (2) RCJ 650 and 1990 (2) RCR 731 wherein it was held, that even if no issue of partial eviction has been framed, and no evidence has been led, and no request was made for partial eviction, in the learned trial Court, the learned lower Appellate Court need not remand the matter on this question. Thus, the issue was decided in favour of the plaintiff. Thus, the appeal was partly allowed, and while setting aside the finding on issue No. 1 and 7 the decree for eviction was maintained. Assailing the impugned judgment, learned counsel for the appellant, in the first instance, assailed the findings of the learned courts below on the question of reasonable and bonafide necessity, by contending that the learned courts below have failed to consider, that the plaintiff has come with a deliberate false case, about not having any other premises, while Gyan Prakash, who is none else than the nephew of the plaintiff Shantilal, has clearly admitted, that one shop adjoining to his shop belongs to Radhabai, and significantly Radhabai is plaintiff No. 1. Attention was also invited to Ex. A-1 dt. 4. 1. 91, which in the shop was admitted to be of Radhabai by PW. 2, but while in the witness box he has tried to get out of the situation, by deposing the shop to have been gifted to her daughter, some 8 years back, which on the face of it, could neither be believed, nor this aspect has even been considered by the learned courts below. On the other hand, learned lower Appellate Court has proceeded with the basic misconception, in expecting the defendant to produce documentary evidence, about a shop to be belonging to other plaintiff, despite having been admitted by Gyan Prakash, the plaintiff's witness, and plaintiff's nephew. Then, learned counsel also assailed the finding of the learned courts below on the question of partial eviction. Learned counsel read to me the provisions of Section 14 (2) of the Rajasthan Premises (Control of Rent & Eviction) Act, hereinafter referred to as the Act, and submitted, that even if there is no pleading and no evidence, still it is the duty of the Court to consider the question of partial eviction, on equitable consideration, and therefore, either the matter may be remanded back, or if the bonafide necessity is upheld, appropriate partial eviction may only be decreed, so as to leave northern western portion of the premises with the defendant, in the entire length of Nohra. Learned counsel relied upon the judgments of Hon'ble the Supreme Court, in Rahman Jeo Wangnoo vs. Ram Chand & Ors. , reported in AIR 1978 SC 413, Satwant Kaur vs. Dhund Singh, reported in (1983) 3 SCC 638, Krishna Murari Prasad vs. Mitar Singh, reported in 1993 Supp (1) SCC 439, Ramesh Chandra Kesherwani vs. Dwarika Prasad reported in 2002 WLC (SC) Civil 569, then some judgments of this Court being, in LRs. of Ibrahim vs. LRs. of Fakruddin, reported in RLW 1997 (2) Raj. 768, Riyaz Mohammad vs. Rameshwar, reported in RLW 1989 (1) 95, and Bharatpur Wholesale Sahakari Upbhokta Bhandar Ltd. vs. Shri Sohan Lal, reported in RLW 1988 (1) Raj. 262. Learned counsel also pointed out, that the two judgments rendered by this Court, in Bhanwarlal vs. Tikam Chand, reported in 2000 (4) WLC (Raj.) 408 = RLW 2001 (1) Raj. 564, and Anandi Lal vs. Smt. Sarju Devi & Ors. reported in 2000 (4) WLC (Raj.) 547 = RLW 2004 (4) Raj. 324, are clearly distinguishable on facts, and being contrary to the dictum given by Hon'ble the Supreme Court, cannot be said to be laying down correct law. It was also submitted in the alternative, that in any case, it appears that there are divergent judgments of coordinate Benches of this Court, therefore, the matter is required to be referred to larger Bench for authoritative pronouncement. Learned counsel then assailed the finding on the ground of subletting, by contending, that admittedly Sohanraj was key partner in defendant firm, and admittedly Sohanraj had purchased the stamps and executed a rent note, in such circumstances, after dissolution of the firm, when Sohanraj is continuing in possession, and simply because he had inducted his son Rameshchandra, who is also living with him, as partner, and has given the business, the shape of partnership firm, being M/s. Asuji Bharatkumar, it cannot be said that it amounts to any subletting, and the finding is required to be set aside. ;