GUPTA J - (1.) HEARD learned counsel for the appellant.
(2.) LEARNED counsel has raised two contentions. His first contention is that the provisions of Sec. 14 (2) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 as amended by the Amending Act of 1976 (Hereinafter referred to as "the Act") are not retrospective so as to apply to appeals pending at the time when the Amending Act of 1976 came into force. The relevant portion of sub. sec. (2) of sec. 14 reads as under : - "14 (2)-No decree for eviction on the ground set forth in Clause (h) of sub-sec. (1) of sec. 13 shall be pissed 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 hardships would be caused by passing the decree than by refusing to pass it. . " In my view the provisions of the emended sub-sec. (2) of Sec. 14 would clearly be attracted to perdign appeals as well, in asmuch as it would be the decree that would be passed by the appllate court, which will be the final decree in the case and after the appeal is decided the decree passed by the (rial court will necessarily merge in the decree passed by the appellate court. This view, which I am inclined to take, that the provisions of sec. 14 (2) are applicable to appeals which were pending on the date when the amerded sub. sec. came into force or were filed thereafter, has also been taken in three decisieds of this Court in Prabha Sbanker vs. Smt. Rukmani (1), (AIR 1976 Raj. 17) M/s. Bahirumal Basdev vs. Lalit Kishore (2) (S. B. Civil Second Appeal No. 214 of 1975, decided on March 9, 1976) and M/s. Budharmal Nauranglal vs. Garni Shanker (3) (Civil Second Appeal No. 262 of 1974, decided on Feb. , 10, 1976) I am in respectful agreement with the view taken in the aforesaid three cases in this respect. The first contention of the learned counsel is, therefore, repelled. The second submission of the learned counsel is that the first appellate court should rot have set aside the decree passed by the trial court and remanded the entire suit, but should have framed an additional issue and should have remanded the same under the provisions of Order 41 Rule 25 CPC to the trial court. Learned counsel in this respect relied upon the decision in M/s. Bahirumal Basdev vs. Lalit Kishore (2 ). It may be pointed out that in the other two decisions referred to above, given in appeals against decree for ejectment passed on the ground of personal necessity, this Court took the view that it would be appropriate to remand the case to the trial court to allow the parties to amend their pleadings and the trial court was directed to frame a fresh issue in respect of comparative hardship of the parties and to allow them to lead fresh evidence, if they so desired, in respect of such newly framed issue. I may point out that in M/s. Bahirumal Basdev's case, the learned Judge took into considera-tion the unamended provisions of Order 41 Rule 23 CPC. The aforesaid provisions of Order 41 Rule 23 CPC were amended, so far as the Rajasthan is concerned, on March 11, 1965. Now the provisions of amended Order 41 Rule 23 CPC are not confined to remand in a case where the suit has disposed of by the trial court on a ptelmirary point only, but the appellate court, under the amended provisions of Order 41 Rule 23 CPC is empowered to remand a suit to the trial court when it conisders it necessary in "the interest of justice" to do so. Thus the provisions of Order 41 Rule 23 CPC as an ended are couched in very wide language and the fetter that a remand could only he made under the aforesaid provisions in case the suit was decided only on a preliminary point no longer subsists. In my view, the learned lower appellate court was justified in remanding the suit to the trial court in the present case, inasmuch as the parties should be allowed an opportunity to amend their pleadings, if they so desire, keeping in view the provisions of sec. 14 (2) of the Act, as amended by the Amerding Act of 1976 and then a new issue will have to be framed in accordance with the pleadings as amended and the provisions of Sec. 14 (2) and further both the parties will have to he afforded an opportunity to lead evidence rela-ting to such newly framed issue, if they so desire and thereafter the suit will have to be decided afresh after taking into consideration the evidence produced after the remand as well. Of course, it should be made clear that the remand of the suit to the trial court should not be allowed to be utilised for the purpose of adducing evidence in respect of other issues, which had already been framed in the suit or to fill in the lacuna in the evidence already produced in the suit, but the evidence, which will row be permitted to be adduced in the trial court shall be confined only to the new issue that may be framed with reference to the amended provisions of Section 14 (2) of the Act. In the aforesaid circumstances, I am not inclined to interfere with the order passed by the learned lower appellate court in the present case and with the observa-tions made above, the appeal is dismissed summarily. .;