JUDGEMENT
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(1.)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
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.
(2.)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
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
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
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.
(3.)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.
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