ARUN MADAN,J. - (1.) THIS Misc. Appeal has been preferred against the judgment and order dated 11th October, 1993 passed by the learned Additional District Judge No. 4, Jaipur City, Jaipur arising out of Civil Regular Appeal No. 81/92 whereby the learned appellate Court has set aside the judgment and decree dated 23.5.92 passed by the trial Court and remanded the case back to the trial Court.
(2.) THE facts giving rise to filing of this appeal, briefly stated, are that the appellant-plaintiff filed a suit for eviction and recovery of the arrears of rent against the respondent-defendant on 18.4.74. It was inter alia averred by the plaintiff in the suit that the Plot No. 52 is in his ownership and on the southern side of the said plot there are two shops and residential portion. Out of the two shops one shop was let out to the defendant-respondent at the rate of Rs. 30/- per month and a rent-note was duly executed by him. The tenant defaulted in payment of rent for a period of 9 months consecutively before institution of the suit. It was further contended by the plaintiff that he is a practicing lawyer and the maximum professional work he is getting from Jaipur and that he needs the disputed shop for opening the office for his legal profession and as such the plaintiff has reasonable and bona fide necessity of the promises in question. The Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short 'the Act') was amended in the year 1975 after filing the suit and consequently the appellant also took the plea of comparative hardship to the effect that in the event of a decree for eviction not being passed in his favour on the ground of reasonable and bona fide necessity, greater hardship would result to him. The learned trial court determined the provisional rent on 13.5.76 and since the respondent had failed to deposit the same in time, his defence against the eviction was struck off by the trial court vide its order dated 22.8.78 and by which the suit was decreed on both the grounds of default and reasonable and bona fide necessity. Thereafter the trial court recorded the evidence of the parties and decreed the suit for eviction against the defendant on 9.4.85. It was held by the trial court that since the respondents had failed to tender or pay to the appellant the arrears of rent for a period of more than 5 months consecutively, he had thus committed default in payment of rent and his defence deserves to be struck off. With regard to the question of reasonable and bona fide necessity of the appellant, the trial court held that the appellant did have the bona fide necessity to occupy the disputed premises for his office purposes. On the question of comparative hardship, the trial court recorded a finding that greater hardship would be caused to the appellant in the event of decree for eviction being declined. Consequently the suit was decreed in favour of the appellant by the trial court vide its judgment and decree dated 23.5.92.
(3.) THE respondent preferred an appeal against the judgment and decree of the trial court vide CFA No. 75/85 along with an application under order 41 Rule 27 CPC. The appeal was allowed and the appellate court remanded the matter back to the trial court for allowing the defendant to lead evidence on the question of partial eviction.;