DINKER LAL MEHTA, J. - (1.) DEFENDANT appellant has preferred this appeal against the judgment and decree passed by the learned Civil Judge -cum -Chief Judicial Magistrate, Sambher, dated 9th August, 1985. Learned Chief Judicial Magistrate confirmed the decree passed by the learned Munsif, Sambhar, dated 28th August, 1981 in Civil Suit No. 1/77.
(2.) PLAINTIFF initiated a suit against the defendant for the eviction on 20th December 1976 on three grounds, (i) default, (ii) damage to the property (iii) nuisance. The suit was amended by the plaintiff on 12th March, 1980 and he pleaded that his son Gopal wants to do the business of cloth and Manihari in the shop. The shop is needed for his personal use and there is a bonafide necessity and comparative hardship in his favour. Defendant submitted the written statement and it was submitted that Gopal was in service in the RSEB and he is still in service. It was also submitted by them that two shops, namely, one in Halwai Bazar and the other near Cinema Hall, are vacant and Gopal can do the business if he likes to do so. The suit of the plaintiff was decreed and about the vacant shop there is no specific finding. Mr. Goyal first of all submitted that the provisions of Section 14 of the Rajasthan Rent Control Act has not been considered by the Court. Section 14(2) 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. It provides that where the Court satisfies whether any hardship is caused either to the tenant or to the landlord by passing the decree in respect of a part of premises, the Court shall pass the decree in respect of such part. Mr. Goyal argued that this point has not been considered by the court below. It was considered by me whether the case can be decided on the evidence available on record by dividing the shop in two parts or not, taking into consideration that the shop is about 14 'wide and 23' in length.
(3.) MR . Jain counsel for the opposite party submitted that on this point of necessity no evidence has been led, and, as such, this Court should not embark and should decide the matter. There is a clear violation of the provisions of Section 14(2) and the judgment and decree of the court below have to be set aside. The court below will also consider the bonafide necessity taking into consideration the allegation of the vacant shop and will decide the matter afresh after due discussion.;