LAL, J. - (1.) THIS civil second appeal has been filed by defendant Hari Prasad under Section 100 of the Code, Civil Procedure, 1908 (here-in-after referred to in short `the CPC') against the judgment and decree dated 13. 3. 1989 passed by the learned Addl. District Judge No. 2, Kota in Civil Appeal No. 87/1981 whereby the appeal has been dismissed and the judgment and decree dated 9. 11. 1981 passed by the learned Munsiff (North) Kota in Civil Original Suit No. 393/1974 has been upheld.
(2.) BRIEFLY stated, the relevant facts leading to the filing of this appeal and necessary for its disposal are that Quarter No. 13 situated in Old Chhapakhana Building, Rangpur Road, Bhimganj Mandi, Kota belonged to Shri Brahmdutt Joshi and Smt. Kamla Joshi from whom the same was purchased by Gopi Chand vide registered sale-deed dated 23. 6. 1972. These premises had been let-out by them to the defendant-appellant about 15 years ago. Gopi Chand filed a suit for eviction and arrears of rent on the ground of reasonable and bonafide personal necessity, substantial damage to the suit premises and suitable alternative residential accommodation being available for him and default in the payment of rent for six months. After filing the suit, he further sold the suit premises to Madan Lal through registered sale-deed dated 26. 12. 1974 who moved an application on 14. 2. 1975 under Order 6 Rule 17 CPC and under Order 1 Rule 10 CPC for permission to be substituted in place of the original plaintiff Gopi Chand and for amendment of the pleadings. Gopi Chand also moved an application on 27. 2. 1975 before the trial Court stating that he had no objection to the acceptance of the application moved by Madan Lal, the transferee of the suit premises. The applications were ultimately allowed. Madan Lal, the transferee was substituted in place of Gopi Chand and he was also permitted to file amended plaint. Madan Lal, the transferee filed amended plaint on 15. 12. 1975 on the self-same grounds as were taken by Gopi Chand in is plaint. The defendant denied all the averments made in the plaint and contested the suit. The trial court framed as many as nine issues on the basis of the pleadings of the parties. The parties were afforded an opportunity of leading their respective evidence. They examined three witnesses each besides producing other documentary evidence. The trial Court after hearing both the sides decided issue Nos. 1, 3 and 4 in favour of the plaintiff and issue No. 6 and 7 against him. It was further held that issue No. 2 had been rendered unnecessary and was decided accordingly and issue No. 5 was not pressed by the learned counsel for the plaintiff. Issue No. 8 was also likewise held to be rendered un-necessary in view of the pronouncement of the Hon'ble Apex Court in V. Dhanapal Chettiar vs. Yashodai Ammal (AIR 1979 SC 1745 ). As issue Nos. 3 and 4 which pertain to reasonable and personal bonafide necessity and comparative hard- ship were decided in favour of the plaintiff and against the defendant. The suit for eviction was decreed by the trial Court on 9. 11. 1981. The appeal preferred against the said judgments and decree was dismissed by the first appellate Court vide its judgment dated 13. 3. 1989. Hence, this second appeal which was admitted on 19. 5. 1989 on the following substantial questions of law. " 1. Whether in the present facts and circumstances the application under Order 1 Rule 10 and Order 6 Rule17 CPC filed by Madanlal was maintainable and same were rightly allowed by trial court? 2. Whether a decree for eviction on the ground of reasonable and bonafide necessity can be passed in favour of plaintiff-respondent even though he runs a shop and resides at Rawatbhata and in Kota the only son of plaintiff-respondent has separate accommodation for needs of his family? 3. Whether the finding with regard to comparative hardship is vitiated on the ground that two courts below have not taken note of finding recorded by trial court on issue No. 7? I have heard learned counsel for the parties and have perused the impugned judgment as well as the judgment of the trial Court. I have also perused the relevant record and the authorities cited at the bar. Learned counsel for the appellant-defendant has contended that no cause of action for eviction and arrears of rent accrues to the plaintiff-respondent Gopi Chand. The suit was, therefore, not maintainable. The plaintiff-respondent could have at best filed a separate suit on the basis of his own reasonable and bonafide personal necessity after purchase of the demised premises. He has referred to M/s. Martin and Harris (Pvt.) Ltd. & Anr. vs. Prem Chand (1996 (3) WLC (Raj.) 461), Sheikh Jehangir vs. Smt. S. Kaushilya Bai and others (1987) Suppl. SCC 630, Bharatpur Wholesale Sahkari Upbhokta Bhandar Ltd. vs. Shri Sohan Lal (1997 (3) WLC (Raj.) 128) and Indrasen Jain vs. Rameshwardas (2005) 9 SCC 225 in this regard. Learned counsel for the respondent-plaintiff has supported the impugned judgment and has vehemently opposed the aforesaid contention. He has submitted that the authorities referred to and relied upon by the learned counsel for the appellant-defendant are clearly distinguishable on facts. So, the law laid down in these authorities does not help the appellant-defendant. He has contended that the plea with regard to the non-accrual of cause of action has not been raised before the trial Court or the first appellate court and the same being a question of fact could not be permitted to be raised for the first time in this second appeal. He has further contended that a perusal of the record clearly demonstrates that the demised premises initially belonged to Brahmdutt Joshi and Smt. Kamla Joshi who had sold the same through registered sale-deed dated 23. 6. 1972 to original plaintiff Gopi Chand who further sold the said premises to plaintiff-respondent herein. The defendant had taken the demised premises on rent from Brahmdutt Joshi and Smt. Kamla Joshi about 15 years ago on a monthly rent of Rs. 10/- and admittedly he had been paying the rent to them. After the purchase of the demised premises by the original plaintiff Gopi Chand, he filed the instant suit on 18. 5. 1974 which has led to the instant appeal. It is also an undisputed fact that Gopi Chand sold the demised premises to Madan Lal through registered sale-deed dated 26. 12. 1974 who was substituted in place of Gopi Chand and who had filed his own amended plaint seeking eviction of the defendant from the demised premises on the ground of default in the payment of rent for 22 months and 7 days i. e. w. e. f. 23. 6. 1972 to 20. 6. 1974 and for reasonable and bonafide personal necessity, wilful substantial damage to the demised premises by the defendant and for getting the same re-constructed and renovated as the premises were in dilapilated condition. He has submitted that the defendant filed his written statement in the suit on 2. 2. 1976 and his amended written statement on 12. 7. 1976 to the amended written plaint filed by the plaintiff-respondent denying all the averments made in the plaint. The issues were framed by the trial Court on the basis of the amended pleadings of the parties before the court. According to the learned counsel, the reasonable and bonafide personal necessity of plaintiff Madan Lal has been duly adjudicated upon by the trial Court as well as the first appellate court. In the authorities referred to and relied upon by the learned counsel for the appellant, either the premises had been sold/purchased at the stage of the first appeal or the second appeal and in none of these cases, the reasonable and bonafide personal necessity of the transferee/assignee was adjudicated upon by the trial court. I have carefully considered the rival submissions made at the bar in the light of the materials on record as well as the authorities referred to and relied upon by either side.
(3.) IT is an undisputed fact that the demised premises were purchased by the present plaintiff-respondent before the issues were settled. The issue framed in the suit was with regard to the reasonable and bonafide personal necessity of plaintiff Madan Lal. IT is not a case where the decree of eviction has been passed on the ground of reasonable and bonafide personal necessity of the predecessor-in-title. In the cases referred to and relied upon by the learned counsel for the appellant- defendant, the decrees were passed in favour of the plaintiffs on the basis of their reasonable and bonafide personal necessity. As such, the decrees in those cases had been rendered inexecutable in view of the relevant provisions whereas in the instant case the decree passed in the suit has not become inexecutable in view of the provisions of Section 13 (1) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950. M/s. Martin and Harris (Pvt.) Ltd. & Anr. vs. Prem Chand (supra), an application under Order 22 Rule 10 read with Section 146 CPC was filed for impleading the purchasers to whom the property in dispute came to be sold through five registered sale- deeds dated 23. 12. 1995. It was contended on the basis of Order 22 Rule 10 (1) CPC that the purchasers were entitled to be impleaded as of right as necessary parties to the appeal. But relying upon the case of Sheikh Jehangir vs. Smt. S. Kaushilya Bai and others (supra), it was held by the Apex Court that the finding recorded by the trial Court on the question of bonafide requirement of the previous landlord who was plaintiff in the said eviction petition did not survive after the plaintiff had transferred his right, title and interest in the demised premises by executing a registered sale-deed in favour of the subsequent purchaser. The Apex Court in this regard referred to the clear inhibition contained in the Andhra Pradesh Buildings (lease, rent and eviction) Control Act, 1960 against the institution of the suit by the purchaser on the ground of bonafide and reasonable personal necessity for a period of three months from the date of the purchase. In the Rajasthan Premises (Control of Rent & Eviction) Act, 1950, there is no such inhibition and the issue of bonafide and reasonable personal necessity of the plaintiff- respondent has been adjudicated upon in the instant case whereas it was not so done in the case relied upon in the afore-mentioned authority. So, the case being clearly distinguishable has no application to the facts of the instant case. In the case of Bharatpur Wholesale Sahkari Upbhokta Bhandar Ltd. vs. Shri Sohan Lal (supra), prior to the Amendment Ordinance No. 26 of 1975, the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 did not contemplate for splitting up of the premises for the purposes of passing a decree for partial eviction and, therefore, no issue was framed with regard to partial eviction. So, an additional issue was framed in the second appeal and the matter was remitted to the court below with direction to decide the aforesaid issue after affording opportunity to the parties to adduce evidence with regard thereto. So, this case also has no bearing on the present case. ;