R.L.GUPTA, J. - (1.) THE appellants who are the plaintiffs, landlords of the suit shop situated at Chittorgarh, filed a suit against the respondent defendant tenant, for eviction and arrears of rent on the ground of personal bonafide and reasonable necessity for the suit shop. The suit was decided by the learned Additional Civil Judge, Partabgarh, headquarter at Chittorgarh. It was held, that the plaintiffs have, no bonafide and reasonable necessity for the suit for their personal use and the suit of the plaintiffs was dismissed. An appeal from the judgment and decree of the learned Additional Civil Judge was preferred before the District Judge, Partabgarh. The learned District Judge, Partabgarh dismissed the appeal of the plaintiffs and upheld the judgment and decree passed by the Additional Civil Judge, Chittorgarh. The second appeal has now been preferred before this Court by the plaintiffs appellants against the judgment and decree passed by the District Judge in First Appeal affirming the judgment and decree of the learned Additional Civil Judge.
(2.) DURING the pendency of this appeal an amendment was made in Section 14 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 by the Rajasthan Amending Act No. 14 of 1976. In Section 14 Sub -section (2) was newly added which runs as follows: (2) 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 than by refusing to pass it. Where the court is satisfied that no hardship world be caused either to the tenant or to the landlord by a passing the decree in respect of a part of the premised, the court shall pass the decree in respect of such part only. In view of the amendment, the learned Counsel for the appellant moved an application before this Court on 15 -4 -1977 praying that, in view of the above amendment, an additional issue on the question of comparative hardship be framed and the same may be remitted to the remitted to the court below for giving a finding after recording evidence on that issue. The arguments were heard in this connection. It has not been disputed that in this position of amended law, the court has to be satisfied that greater hardship would be caused by passing the decree then by refusing to pass it and this matter needs to be enquired into. But the learned Counsel for the respondent has opposed this application on two grounds: (1) that both the courts below have held that there is no bonafied and reasonable personal necessity of the suit shop for the plaintiffs. It is, therefore, necessary for the appellants to first satisfy this Court that there it a reasonable and bonafied necessity of the suit then it may remand the case for deciding the question of comparative hardship. (2) that this Court while remanding the case should set aside the judgment and decree of the courts below and remand the case as a whole for fresh trial as provided in Order 41 Rule 23 CPC as amended in the State of Rajasthan and not for a finding on the issue of comparative hardship alone under Order 41 Rule 25 CPC.
(3.) SIMILAR questions arose before this Court in S.B. Civil Misc. Appeal No. 20/1877 Jai Narain v. Panna Lal which was decided in 8th March, 1978.;