N. C. SHARMA, J. - (1.) THIS second appeal has been filed by Chhogalal defendant-tenant against the decree of the Additional District Judge, Rajsamand dated May 30, 1983 reversing the decree of Munsiff Nathdwara dated November 22, 1976 of dismissal of plaintiff-landlord's suit for ejectment of the tenant from a shop with a Medi over it and decreeing the suit of Bhanwarlal plaintiff-landlord for ejectment of the defendant-appellant from the said premises.
(2.) IT is an admitted fact that the defendant had taken on rent a shop along with a Medi over it situated near Mathura Darwaja in the town of Nathdwara from the respondent on April 11, 1966 at a monthly rent of Rs.-21/ -. IT is also an admitted fact that the plaintiff carries on business in Kirana in Sarafa Bazar Nathdwara in a rented shop. The shop in which the plaintiff carries on business belongs to Temple Board Nathdwara and it is on rent with the plaintiff-respondent at a monthly rent of Rs. 23/ -. According to the averments in the plaint; the plaintiff-respondent is a licensed food-grain dealer. According to him, when he receives food grain from out side through Railway or through trucks, he does not have sufficient accommodation (godown or shop) to store such food grains. His rented shop in Sarafa Bazar, Nathdwara is insufficient for the purpose. He cannot keep the food grains received by him in the shop in Sarafa Bazar and also carry on his food grains business in that shop. On account of the scarcity of the accommodation he has to keep the food-grains on the public road after taking licence from the Municipality and has also taken on rent a Kotha for storing food grain on rent from. Rameshchandra Parakh. He, therefore, needed the suit premises which are on rent with the defendant-appellant for storing food grains and Kirana articles and for carrying on his trade in it. Apart from that the demised premises are said to be in dilapidated condition and he needs these premises to make improvement in the premises. On these grounds, the respondent sued the appellant for his ejectment from the demised premises. The suit was contested by the appellant. He pleaded that the plaintiff was carrying on his Kirana business in Sarafa Bazar for more than 20 years. He is a retail licensee under Food Grains Dealers Licensing Order. Looking to the terms and conditions of a retail licence, it is not possible that the plaintiff might receive a huge quantity of goods at a time through Railway or trucks. The plaintiff has sufficient accommodation for storing the quantity of goods which he receives as a retail licensee. The plaintiff was a retail licensee when the suit premises were let out by him to the appellant on April 11, 1966 and continued to be so on the date he filed the present suit on July 23, 1970. It was also alleged that after the plaintiff had let out the suit premises to the appellant, he further let out his another shop which is also situated near Mathura Darwaja on the opposite side of the demised premises to one Gegraj some time in the year 1968. This indicates that the plaintiff had no requirement of additional accomodation for the purpose of carrying on his trade 2 years before the suit. Thereafter no further development or circumstances have arisen making it necessary for the plaintiff to have additional accommodation. The plaintiff has notified before the competent authority some Kotha of his residential house as place of storing his goods. This also goes to show that the plaintiff did not have reasonable and bona fide need for the suit premiss. It was denied that the plaintiff obtained licence from the Municipality to keep his goods on the public road and in any event in order to attract customers, the dealers during day hours usually place food grains on the road. It was denied that the plaintiff had taken any Kotha on rent from Rameshchandra Parakh and in any evrnt, if any such Kotha had been taken on rent recently, it was nothing but -a device to create an evidence in support of his case. It was denied that the two premises required any improvement. The suit was originally decided by Munsif Nathdwara on April 11, 1975. The Munsif came to the conclusion that the rented shop in Sarafa Bazar Nathdwara is not sufficient for the plaintiff to store the goods received by him in connection with his trade and, therefore, he reasonably and bona fide required the demised premises for his trade purpose. The Munsif also came to the conclusion that the suit premises required improvement to be made as his Chabutri had broken down and stones are also coming out in its northern wall. On the basis of these findings, the suit of the plaintiff, for ejectment of the appellant from the demised premises was decreed. Aggrieved by this decree the tenant Chhogalal filed Civil First Appeal No. 146 of 1975 which was decided by the Additional District Judge, Udaipur on May 8, 1976. During the pendency of this first appeal, the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short, hereinafter 'the Act') had been amended by the: Amending Act No. 14 of 1976 on February 13, 1976 and in view of the amendments made, the decree on the ground of reasonable and bona fide need could be passed only after examining the comparative hardship of the landlord and the tenant. Due to this amendment in the Act, the Additional District Judge, Udaipur allowed the appeal of the tenant, set aside the decree of Munsif Nathdwara dated April, 1975 and remanded the case to the Munsif for framing an appropriate issue in the light of the amendment and to give both the parties an opportunity to lead their evidence if they so desired on newly framed issue. The evidence already recorded during the trial was to be treated as evidence during the trial after remand. It was directed that the trial court shall then decide the case afresh. After remand of the case the trial court framed an Additional issue No. 1 A regarding comparative hardship on July 29, 1976 and after recording additional evidence in respect of this issue, decided the case afresh on all issues on November 22, 1976. This time, Munsif Nathdwara decided the issue regarding personal and bona fide necessity against the plaintiff. With regard to the need of the shop for making repairs or improvement, it was held that it was not a ground for ejectment in the Act. Consequently, Munsif Nathdwara dismissed the suit of the plaintiff regarding ejectment of the defendant, from the dismissed premises. The plaintiff-land-lord then filed Civil First Appeal No. 76 of 1978 (Old) 69 of 1981 (new) in the court of District Judge, Udaipur. This first appeal was decided by the Additional District Judge, Rajsamand on May 30, 1983. The Additional District Judge reversed the findings of the Munsif Nathdwara on issue No. 1 and he held that the plaintiff reasonably and bona fide required the demised premises for his business purpose. He also held that hardship to the plaintiff-landlord will comparatively be more than the tenant. On the basis of his above findings, the Additional District Judge accepted the appeal of the landlord and decreed the suit for ejectment of the defendant tenant from the demised premises. The defendant-tenant has come in second appeal to this Court.
(3.) IT is necessary to briefly narrate the reasonings given by the courts below in arriving at different findings on issue No. 1 relating to reasonable and bona fide need of the demised premises. So far as Munsif Nathdwara is concerned, he held that the plaintiff land-lord received 2 or 3 trucks of food grain in a month. Each truck brought 90 or 100 bags in it. He stated that even according to the plaintiff, the goods received through trucks can be kept in the shop in Sarafa Bazar Nathdwara. IT was not the case that these 2 or 3 trucks arrived simultaneously. Munsiff referred to his own site inspection and found that 80 or 90 bags of grain were stored in the shop in Sarafa Bazar. There was also a Bukhari measuring 8'3"x 7'6" in which some more bags were lying and there was place for sitting and trading. According to him, the shop at Sarafa Bazar could accommodate the goods received in one truck or 1-1/2 times number of bags than the bags brought in the single truck. The grain bags received were also sold and the sale was of 10 to 12 bags per day. The grain bags are received in an instalment of 60 to 80 bags with interval of 10 to 15 days. The plaintiff was a retail licensee in food grain and not a wholesale licensee and as such he did not need more accommodation for storing the food grain bags. The Munsif also observed that when earlier Civil First Appeal No. 146 of 1975 at the instance of the tenant was pending before the Additional District Judge Udaipur, another shop belonging to the plaintiff and which is also situated near Mathura Darwaja opposite to the suit shop and which had been let out by the plaintiff to Gegraj fell vacant. The plaintiff instead of utilising that shop belonging to him for his aforesaid trade purpose, re-let the shop to another tenant. If indeed, it was held, the plaintiff needed additional accommodation for his trade purpose he would not have re-let his another shop which had fallen vacant during the pendency of the aforesaid first appeal. According to the plaintiff, he needed additional accommodation for storing his food grain and he did not want to shift his grain trading shop from Sarafa Bazar Nathdwara. IT was also observed that the plaintiff was retail licensee and he has not established that his trade had flourished any more. Compare to the plaintiff's trade, the defendant tenant was a wholesale grain dealer and the trade of the defendant in food-grain is more flourishing than that of plaintiff. On the basis of these reasonings, the Munsif decided issue No. 1 against the plaintiff. So far as the Additional District Judge, Rajsamand is concerned, he observed, that in earlier Civil First Appeal No. 145 of 1975 decided on May 8, 1976, the case was remanded to the trial court only with the direction to frame Additional issue regarding comparative hardship and, therefore, the Munsif Rajsamand committed an error in re-deciding issue No. 1 and in changing the earlier findings given by the Munsif Rajsamand when the suit was originally decided on April 11, 1975. In this respect the Additional District Judge referred to the decisions of their Lordships of the Supreme Court in Pasupuleti-ven-Kateshwarlu vs. The Motor and General Traders. (1) and that of this Court reported in Bhikamchand vs. Tarachand (2 ). The Additional District Judge also came to the conclusion that the plaintiff-landlord carried on his business in a rented shop and kept his goods in rented Kotha and if he wanted to occupy his own shop let out to the tenant, his requirement was reasonable and bona fide. As regards the reletting by the plaintiff of another shop which had been vacated by Gegraj, the Additional District Judge held that it depended on the wish of the plaintiff as to which shop was suitable or sufficient for his trade-purposes. When the accommodation in the shop in Sarafa Bazar, Nathdwara on the rent with the plaintiff was not sufficient to store the food grains received, the requirement of the plaintiff for the demised premises was reasonable and bona fide. Apart from that the shop which had been vacated by Gegraj was smaller in size than the suit shop. The Additional District Judge was of the view that the first judgment given in the suit by the Munsif on April 11, 1975 was more weighty and reasoned than the differing judgment given by Munsif Nathdwara on November 22, 1976 after the remand of the case. According to the Additional District Judge, the evidence adduced by the plaintiff land-lord was more weighty than that of the defendant. The plaintiff had even taken godown on rent from other person and when the tenant carries on wholesale business in food grain, the plaintiff will suffer more hardship compared with the defendant in case he does not get the suit premises in the carrying of his trade. On the basis of these reasonings the Additional District Judge reversed the findings of the Munsif Nathdwara on issues Nos. 1 and 1a and decreed the suit of the land-lord for ejectment of the defendant appellant from the suit premises. Mr. Rajendra Mehta appearing for the defendant-tenant urged that the plaintiff was a retail licensee. He received about 2 or 3 truck loads goods in a month. The shop run by him in Sarafa Bazar Nathdwara can store about 110 bags. He kept on Municipal land out side his shop in Sarafa Bazar only with a view to attract customers and not because of paucity of space in the shop. The plaintiff did not want to shift his shop from Sarafa Bazar in order to carry on his business. He only alleged that he needed the suit premises for using as godown for storing his goods. It was also urged that admittedly the plaintiff's another shop which was in the tenancy of Gegraj had fallen vacant during the pendency of earlier First Appeal No. 146 of 1975 and the plaintiff instead of occupying that shop for storing his goods, re-let that shop on a higher rent. It was urged that in such circumstances the alleged requirement of the plaintiff cannot be said to be reasonable and bona fide. It was also argued that while deciding the earlier Civil Appeal No. 146 of 1975, the Additional District Judge, Udaipur in his remand order not only directed the trial court to frame an appropriate issue on the point of comparative hardship but had also directed the trial court to decide the case afresh after recording evidence on the additional issue. Despite such a direction, the Additional District Judge, Rajsamand was wrong in holding that the Munsif Nathdwara had committed error in giving a different finding on issue No. 1 from that given when the suit was originally decided by the Munsif on April 11, 1975. It was contended that the Additional District Judge was wrong in allowing the appeal simply on the ground that the earlier judgment given by the Munsif on April 11, 1975 was more wighty and reasoned than the latter judgment of the Munsif dated November 22, 1976 without himself examining the evidence. Lastly, it was urged that the courts below have not examined the question whether no hardship would be caused to either party by passing a decree of partial ejectment only as provided, for in proviso to section 14 (2) of the Act. ;