Rajasthan High Court - Jodhpur
Lrs Of Bhera Ram vs Om Prakash on 12 September, 2013
Author: P.K. Lohra
Bench: P.K. Lohra
[1]
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
JUDGMENT
S.B. CIVIL MISC. APPEAL NO.124/1997
LRs of Bhera Ram Vs. Om Prakash
Civil Misc. Appeal under Order 43 Rule 1 (u) of
the Code of Civil Procedure against the judgment
and order dated 30.11.1996 passed by Addl.
District Judge, Churu in Civil Appeal Decree
No.7A/96 - Om Prakash Vs. Bhera Ram.
DATE OF ORDER: September 12, 2013
::P R E S E N T::
HON'BLE MR. JUSTICE P.K. LOHRA
Mr. Arvind Samdariya, for the appellants.
None present for the respondent.
***
BY THE COURT:
Appellants, the legal representatives of plaintiff Bhera Ram, have preferred this appeal under Order 43 Rule 1(u) of the Code of Civil Procedure against the judgment and order dated 30.11.1996 passed by the Addl. District Judge, Churu (for short, hereinafter referred to as 'the first appellate Court'), whereby the learned first appellate Court has set aside the judgment and decree dated 27.05.1985 passed by the Court of Civil Judge (Jr. Div.) Sardarsahar (for short, 'the trial Court'), and remanded the matter back [2] to the trial Court with the direction to frame issue on the point as to whether in case of partial eviction the parties would face any trouble or not; and if not, whether partial eviction from the premises in question is possible or not, and thereafter to take evidence of both the parties only on that point and to decide the suit afresh on that basis. The learned first appellate Court, while allowing the appeal also clarified that there is no necessity for the trial Court to decide rest of the issues again.
The facts, in brief, are that the plaintiff Bhera Ram filed the suit with the averments that he has a shop of his exclusive ownership in the eastern market of Sardarsahar, facing southwards purchased by him in the year 1956 and it has two rooms over it which were given to the defendant Omprakash 7-8 years back on monthly rent of Rs.100/- and to that effect rent deed was executed on 04.10.1979 but the defendant did not pay the rent in terms of the rent deed from Asoj badi Ekam, Samvat 2036 till filing of the suit as such having committed default in payment of rent is a defaulter. The plaintiff claimed due rent and interest thereon. It was averred in the plaint that the tenant had agreed to vacate the premises after 11 months but did not vacate the same. The plaintiff has [3] pleaded that the premises in question are required reasonably and bonafidely for engaging his two sons and two grandsons to carry on his business of goldsmith because it is not possible for all the five persons to undertake the aforesaid business in the present shop and work at the same place. Asserting with emphasis that in the business of goldsmith so many sophisticated works are to be done including filing, soldering, and fixing of gems etc with precision for which separate accommodation is required and as the space in the shop not being sufficient, the plaintiff is in personal bonafide need of the rented premises. The plaintiff also took the plea of comparative hardship that in case the premises in question are not vacated, his sons and grandsons would be deprived of doing job whereas the defendant is in the business of photography and the rented premises are sparingly used by him. It was further stated that the main source of income of the defendant is from salary and offerings received by him for worshipping in the temple of Tantiyas and he would suffer no hardship in case rented premises are vacated. The plaintiff prayed for arrears of rent and a decree of eviction.
The defendant filed written statement and stated that in addition to the two rooms, one small room (Kotdi) is [4] also in his tenancy which he is using as a dark room for photography purposes but the said fact is concealed by the plaintiff. It was stated that the said small room was taken on rent alongwith the two rooms in the year 1961 on a monthly rent of Rs.30 which was later on increased from time to time and its rent was increased to Rs.50 in the Samvat year 2035. According to the defendant, the rent deed of 4.10.1979 was forged one and no such rent deed was ever executed by him. He has specifically averred that he is regular tenant for last 20 years and has paid rent upto Asoj badi 15 of Samvat 2038 but thereafter the rent was not accepted, however, he is ready to pay the same. It was also stated in the written statement that the shop of the plaintiff is so large that thirty persons can sit together for undertaking required work and as such the plaintiff has no reasonable and bonafide requirement of the rented premises. It was further stated in the written statement that the grandsons of the plaintiff are not of the mature age for doing business and the present shop in possession of the plaintiff mostly remains closed on account of lack of business. Both the grandsons of plaintiff are studying and the available shop is large which is not being completely used by the plaintiff as such there is no need of the rented rooms to him whereas the defendant is doing the [5] photography business for last 20 years and he has a family of more than twenty members and this is the only source of their livelihood. The defendant has no other place available to him for his business and in case the rooms with him are got vacated, his family will face a situation of starvation.
The trial court in all framed nine issues and after evidence of the rival parties heard final arguments and decreed the suit. The issues of bonafide necessity and comparative hardship were decided against the defendant and in favour of plaintiff by judgment of the trial Court dated 27.05.1985 and the suit was decreed directing the defendant to hand over vacant possession of the rented premises to the plaintiff within a period of two months.
Being aggrieved, the defendant filed appeal before the first appellate Court on the ground that the trial Court did not frame and decided issue regarding partial eviction, which was necessary in view of the fact that the suit was filed for eviction on the basis of reasonable personal and bonafide necessity and prayed for remanding the matter back to the trial Court for framing issue on the point of partial eviction and to decide the same after evidence of parties. The learned first appellate Court [6] allowed the appeal as aforesaid.
The learned counsel for the appellant Mr. Samdariya has argued that the first appellate Court has committed grave and serious error of law in remanding the matter back to the learned trial Court for its decision afresh. The learned counsel would urge that the question relating to reasonable and bonafide necessity and comparative hardship was examined thoroughly by the learned trial Court and therefore, it was not desirable for the learned first appellate Court to remand the matter back for deciding the issue of partial eviction afresh. Lastly, the learned counsel for the appellant has submitted that although the learned below has remanded the matter for deciding the question of partial eviction of the tenant from the rented premises but while doing so simultaneously the learned first appellate Court has also reversed and set aside the entire decree passed by the learned trial Court.
I have heard the learned counsel for the appellant and perused the impugned judgment of the learned first appellate Court.
While considering the submission of the learned [7] counsel for the appellant that remand order is improper in want of decision regarding question of partial eviction, in my considered opinion, the submission appears to be quite attractive but the same is bereft of any substance. The judgment of Hon'ble Apex Court in case of Rehman Jeo Wangnoo Vs. Ram Chand And Ors. (AIR 1978 SC 413) and a judgment of this Court in Radha Kishan Vs. Naraindas [RCJ 1983 (2) 472], on which the learned first appellate Court has relied, it is held that a trial Court, while deciding issue relating to reasonable and bonafide necessity, is under an obligation to decide the question about partial eviction of the premises. The learned first appellate Court, in these circumstances, has rightly placed reliance on these two verdicts while remanding the matter back to the learned trial Court for decision on the question of partial eviction. Thus, in my considered opinion, the order of remand is per-se just and cannot be faulted in the given circumstances. The other contention of the learned counsel for the appellant, that the entire judgment and decree dated 27th of May 1985 is reversed and set aside, appears to be misplaced because in the operative portion of the judgment, the appellate Court has made it crystal clear that the judgment rendered by the learned trial Court on all other issues is not disturbed and is maintained as such. [8] The learned appellate Court has simply remanded the matter with a direction to frame an additional issue for partial eviction and decide the same after taking evidence of the rival parties. Even otherwise, on cumulative reading of the judgment of the appellate Court, the apprehension of the appellant appears to be wholly untenable. For the satisfaction of the appellant, it is clarified that the decision of the appellate Court, to the extent it has set aside the entire judgment and decree, may be treated in the light of the operative portion of the judgment wherein the remand order has been confined to the question of partial eviction only.
It is expected from the trial Court to decide the question relating to partial eviction of the premises by taking evidence of the rival parties uninfluenced by the recitals in the order of the appellate Court that the judgment and decree as such is reversed and set aside. The suit in question is pending since 1981 and therefore the learned trial Court is directed to decide the question of partial eviction by framing additional issue as early as possible, preferably within a period of six months from the date of this order.
[9]
The parties are directed to appear before the learned trial Court on 17th of October 2013. The record of the trial Court be sent back forthwith.
The appeal is accordingly disposed of. No order as to costs.
(P.K. LOHRA), J.
arora/