S.K.Mal Lodha, J. - (1.) These two connected revisions before me involve a common question of law and, therefore, it will be convenient to dispose them of by a common order.
(2.) The petitioner is defendant-tenant and the non-petitioner is plaintiff- landlady. The plaintiff instituted a suit for arrears of rent and ejectment against the defendant in the court of Munsif City, Jodhpur on February 7, 1975 on the ground of reasonable and bona fide necessity under Section 13 (1) (h) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 ('the Act' hereafter). It is common ground between the parties that the shop was let out for commercial and business purposes. During the pendency of the suit, the Act was amended. By means of amendment subsections (2) and (3) were added by the amending Ordinance No. XXVI of 1975 with effect from September 29, 1975. Ordinance No. XXVI of 1975 was replaced by the Rajasthan Premises (Control of Rent & Eviction) (Amendment) Act. 1976 (No XIV of 1976) published in the Rajasthan Gazette Extraordinary Part 1VA dated February 13, 1976. Sub- sections (2) and (3) of Section 14, read as under; "(2) No decree for eviction on the ground set forth in clause (h) of subsection (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. Where the court is satisfied that no hardship would be caused either to the tenant or to the landlord by passing the decree in respect of a part of the premises, the court shall pass the decree in respect of such part only. (3) Notwithstanding anything contained in any law or contract, no suit for eviction from the premises let out for commercial or business purposes shall lie against a tenant on the ground set fourth in Clause (h) of Sub-section (1) of Sec. 13 before the expiry of five years from the date the premises were let out to the tenant." As the premises were rented out on March 30, 1972 and the suit was brought on February 7, 1975, it was not within a period of 5 years from the date the premises in suit were let out to the defendant and, therefore, he raised an objection before the trial court that the suit was not maintainable because of Section 14 (3) of the Act. This plea was negatived by the trial court by its order dated August 14, 1976 and it held that there is no bar to the maintainability of the suit as the amendment is not applicable to a pending suit. The defendant preferred S. B. Civil Revision No. 5tl of 1975 against that order to this court. The revision was dismissed and it was held that Section 14 (3) of the Act as amended by Ordinance No. XXVI of 1975 and replaced by the Amendment Act No. XIV of 1976 is prospective in operation and cannot apply to suits which had already been filed before the coming into force of Ordinance No. XXVI of 1975. It may be stated that this revision was decided on January 17, 1977.
(3.) It needs to be mentioned here that on November 9, 1976, an application was moved on behalf of the plaintiff for amendment of the plaint for incorporating the facts relating to comparative hardship between the landlady and the tenant. The learned Munsif allowed the application on April 24, 1977 and the amended plaint was submitted on, May 5, 1977. The defendant-petitioner while resisting the suit, inter alia, raised an objection in para 7 of the written statement, the substance of which is that since the plaintiff had moved an application for amendment of the plaint on November 9, 1976, the suit for ejectment from the shop in dispute, is not maintainable under Section 14 (3) of the Act The learned Munsif, after hearing arguments on the defendant's application dated November 21, 1977, framed issue No. 10," which when translated into English, reads as follows: "Whether in view of the fact that the plaintiff's plaint was amended, on the basis of the amendment application dated October 9, 1976 (there is mistake in regard to the date of the application for amendment, in fact the application was moved on November 9, 1976), the suit is not maintainable." The learned Munsif, after hearing arguments on this issue, decided it in favour of the plaintiff and against the defendant on January 23, 1978 and held that the suit is maintainable. Against this order dated January 23, 1978 by which issue No. 10 was decided in favour of the plaintiff and against the defendant, the defendant filed g. B. Civil Revision No. 198 of 1978 on May 16, 1978. The defendant also preferred appeal under Section 22 of the Act before the District Judge, Jodhpur against this very order dated January 23, 1978. The learned District Judge, by his order dated April 4, 1978, dismissed the appeal on two grounds; (1) that the order dated January 23, 1978, passed by the learned Munsif is correct on merits, and (2) that the appeal preferred by the defendant was not maintainable. Feeling aggrieved by the appellate order dated April 4, 1978, the defendant-petitioner has preferred S. B. Civil Revn. No. 199 of 1978.;