S. C. AGRAWAL. J. - (1.) THIS second appeal is by the landlord in a suit for eviction from a shop situated at Tripolia Bazar in Jaipur City. The premises were let out by the appellant to the respondent, Rajendra Kumar, on 22nd October, 1960 for a period of one year on a monthly rent of Rs. 33/ -. The respondent is carrying on business in sale of books and stationery in the name of M/s. Rajasthan Prakashan in the said premises The appellant is a qualified engineer. He was earlier employed with Kamani Engineering Corporation. Some time in 1967 he left the service and started business of sale of electrical goods and machines. For that purpose he took on rent two shops on Motilal Atal Road, at Jaipur on a monthly rent of Rs. 425/ -. On-"2nd August, 1968 he filed the suit, giving rise to this appeal, for eviction of the respondent. The appellant sought eviction of the respondent on two grounds, namely, (i) default in payment of rent and: (ii) reasonable and bonafide personal necessity of the appellant. The ground of default in payment of rent was later not pursued by the appellant and the only ground on which he is now seeking eviction of the respondent is reasonable and bonafide personal necessity. The case of the appellant, as set out in the plaint, in this regard was that since no shop of the appellant was vacant he had to take on the shops at Motilal Atal Road but the said shops were not suitable for carrying on the business in electric goods and moreover the rent for the said shops was Rs. 425/- per month whereas he is getting only Rs. 33/- per month for the premises in possession of the respondent. The appellant also submitted that the suit premises are more suitable for carrying on the business in electric goods and that the appellant wanted to shift his business to the suit premises and, therefore, he requires the premises reasonably and bonafide for his own use. During the pendency of the suit, the appellant left the shops which were taken on Motilal Atal Road and took on rent a shop at Johari Bazar on a monthly rent of Rs. 90/- and shifted his business to the said shop at Johari Bazar and now he is carrying on his business in electrical goods at Johari Bazar in the name of Deepak Engineering Works.
(2.) THE respondent contested the suit and filed written statement. THE said written statement was amended by the respondent in 1971 and the amended written statement dated 7th October, 1971 was filed. THE appellant filed a replication dated 30th October, 1971 to the said amended written statement. Further amended written statement was filed on 25th October, 1975. The respondent in his written statement, has denied that the appellant was carrying on business in electrical goods and stated that the appellant does not understand the said business and has no experience of the same and that he has filed the suit with a view to put undue pressure on him and to increase the rent. The respondent also submitted that the suit premises are not suitable for carrying on business in electrical goods and that moreover after the filing of the suit, the appellant has taken on rent a shop in Johari Bazar which is in main market in the city and the said shop is about. ,the same size as the suit premises and that in that shop the business of the appellant is being run quite properly, and that the appellant would not suffer any hardship if the suit premises are not made available to him and that on the other hand, the respondent, would suffer considerable loss if he is required to vacate the premises. The respondent also submitted in the written statement that one shop belonging to the appellant was let out to Star Trading Company and that the appellant had also given a notice for eviction to the tenant of the said shop but instead of filing a suit against the tenant the appellant had sold the said shop to the wife of the tenant which shows that the appellant did not need the suit premises for his business and does not need the game even now. Six issues were framed by the trial Court out of which the issues which are relevant for the purpose of this appeal are issue No. 3 relating to reasonable and bonafide personal necessity and issue No. 6 relating to comparative hardship. The Addl. Civil Judge, Jaipur City, Jaipur, by his judgment and decree dated 13th April, 1978, decided both these issues against the appellant and dismissed the suit. The appellant filed an appeal which was dismissed by the Addl. District & Sessions Judge No. 5, Jaipur City, Jaipur by his judgment and decree dated 19th December, 1981. Hence this second appeal. I have heard Shri R. M. Lodha, the learned counsel for the appellant in support of this appeal and Shri S. M. Mehta the learned counsel for the respondent. During the course of hearing of this appeal Shri Mehta filed an application to bring on record certain subsequent events namely, that a partition has taken place between the appellant and his family members on 25th September, 1985 and as a result thereof half of the suit premises has fallen in the share of the appellant and the other half has fallen in the share of his son, Ashok Kumar. It has also been stated that during the pendency of the appeal, the appellant has got vacant possession of one shop and Kotha situated at Gopal-ji-Ka-Rasta, Jaipur from Shri Girraj Prasad, on the ground of bonafide and personal necessity of his son Rajendra Kumar and that the said suit has been decreed by this Court in second appeal on 30th April, 1988. It has also been submitted in the said application that a shop belonging to the appellant situated in Johari Bazar which had been let out to Shri Abdul Waheed, Tailor, has also been sold to Shri Om Prakashji and Vijay Prakashji. The respondent has also stated in his application that his father, Shri Jhunni Lal has expired on 2nd December, 1978 and since the respondent is the only son he has become the sole proprietor of the firm M/s. Rajasthan Prakashan and he is looking after the entire business of the said firm. The appellant has submitted a reply to the said application wherein, the fact of oral partition dated 25th September, 1985 has not been disputed. It has also not been disputed that a decree regarding one shop and Kotha in Gopa!ji-Ka Rasta has been passed 'by this Court but it has. been stated that the same is with regard to the need of Rajendra Kumar, the son of the appellant, and that he would start his jewellery business in the same and that eviction has been sought for that purpose. As regards the shop in Johari Bazar it has been stated that on partition the said shop came to the share of Rajendra Kumar, the son of the appellant, and he has sold the said shop in April, 1986 since the frontage of the said shop is 4' only and it was not suitable for his business. The appellant has also stated that the rent for shop in Johari Bazar which was taken by the appellant in 1970 on a monthly rent of Rs. 90/- has been increased to Rs. 175/- per month.
(3.) SHRI Mehta has urged that the concurrent findings have been recorded by both the courts below on the grounds of reasonable and bonafide personal necessity and comparative hardship against the appellant and that the said find-ings do not suffer from any legal error or infirmity which may justify interference in second appeal. It is no doubt true that findings on Issue No. 3 relating to reasonable and bonafide personal necessity as well as on Issue No. 6 relating comparative hardship are findings of fact and this Court in second appeal would interfere with the said findings only if they are vitiated by an error of law or if they are perverse, based on no evidence or they are such as no reasonable man could reach. (see-Mattulal Vs. Radhe Lal (1) ). Such a finding could also be Open to challenge in second appeal if important and relevant evidence has been ignored while arriving at the findings. (See: Damadilal Vs. Parashram (2) ). Shri Lodha, the learned counsel for the appellant, has submitted that in the present case the findings recorded by the Addl. District Judge on Issues Nos. 3 and 6 are not sustainable inasmuch as in arriving at the said findings the Addl. District Judge has not applied the correct legal tests and has overlooked material parts of the evidence having a bearing on those questions. It is, therefore, necessary to examine as to whether the Addl. District Judge has applied the correct legal tests for arriving at his conclusions with regard to Issue Nos. 3 and 6 and for that purpose it will be necessary to consider the proper tests which are applicable. Section 13 (1) (h) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (hereinafter referred to as 'the Act') makes provision for eviction of a tenant on the ground of reasonable and bonafide personal necessity of the landlord and it provides as under: - "13 (1) Eviction of tenants.- Notwithstanding anything contained in any law or contract, no court shall pass any decree, or make any order, in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to pay rent therefore to the full extent allowable by this Act, unless it is satisfied - xxxxxxxxxx (h) that the premises are required reasonable and bonafide by the landlord - (i) for the use or occupation of himself or his family, or (ii) for the use of occupation of any person for whose benefit the premises are held, or (iii) for a public purpose, or (iv) for philanthropic use". . ;