P.D. Kudal, J.
1. This appeal is directed against the judgment of the learned Civil Judge, Ajmer dated 14th January, 1976, whereby the judgment and decree of the learned Addl. Munsiff and Judicial Magistrate, Beawar dated 19th March, 1974 were set aside.
2. Brief facts of the case which are relevant for the disposal of this appealare that Tara Chand and Om Prakash filed a suit for eviction and arrears of rent against Bhikam Chand and M/s. Bhikam Chand & Sons, Beawar. The eviction was sought on the ground of reasonable and bona fide necessity of the suit premises by the plaintiffs and on the ground of default. The learned trial Court decided the issue regarding reasonable and bona fide need of the suit premises against the plaintiffs. It was also held that the defendants have not committed any default. The suit for eviction was therefore, dismissed. The plaintiffs feeling aggrieved filed an appeal which was decided by the learned Civil Judge, Ajmer on 14th January, 1'976. The judgment and decree of the learned trial Court were set aside and the case was remanded to the trial Court with the direction that an additional issue may be framed keeping in view the amendment in Section 14(2) of the Rajasthan Premises (Control of Rent and Eviction) Act, made by the Ordinance of 1975, whereby the question of comparative hardship had to be investigated and decided. It is against this judgment of the learned Civil Judge, Ajmer that the present appeal has been directed before this Court.
3. It was contended on behalf of the defendants-appellants that the learned lower appellate Court erred in law in setting aside the judgment and decree of the learned trial Court. It was contended that the learned lower appellate Court ought to have framed an issue on the question of comparative hardship and should have remitted the case only for a finding on that additional issue. It was also contended that after the finding on the additional issue had been received from the learned trial Court, the lower appellate Court ought to have decided the entire appeal on merit. It was further contended that in the present case, the learned lower appellate Court has set aside the judgment and decree of the learned trial Court without examining the merits of the various issues decided by the learned trial Court and without setting aside the findings on the various issues. It was, therefore, contended that the learned lower appellate Court has committed a grave illegality in law in setting aside the judgment and decrea of the learned trial Court.
4. The learned counsel for the plaintiffs-respondents has contended that the lower appellate Court did not commit any illegality in law in setting aside the judgment and decree of the learned trialCourt. It was also contended that with a view to avoid multiplicity of proceedings it was necessary that the judgment and decree of the learned trial Court oughtto have been set aside. It was also contended that keeping in view the provisions of Order 41, Rule 23, C. P. C., as amended in the State of Rajasthan, the order of the learned lower appellate Court suffered from no infirmity and the appeal filed by the defendants-appellants deserves to be dismissed.
5. The learned counsel for the defendants-appellants placed reliance on Bahirumal Basdey v. Lalit Kishore, 1976 Raj LW 225 : (AIR 1976 Raj 244); Lal Chand Goyal v. Jeet Ran Tatia, 1977 WLN (UC) 53 and General Auto Agencies, Jaipur v. Hazari Singh, 1977 WLN 74 : (AIR 1977 Raj 180).
6. Learned counsel for the respondents-plaintiffs placed reliance on Pra-bhashankar v. Rukmani, 1975 WLN 618: (AIR 1976 Raj 17); Bhanwar Lal v. Nathmal, 1976 Raj LW 59 : (AIR 1976 Raj 137); Firm Khila Ram Jawahar Lal v. Smt. Ghisi Bai, 1976 WLN (UC) 68; Mehta Manuk Lal v. Modi Fateh Lal, 1976 WLN (UC) 69; Ghanshyam v. Bhagwandas, 1976 WLN (UC) 96 and Mishrilal v. Shiv Charan, 1976 Raj LW 605: (AIR 1977 NOC 142).
7. The respective contentions of the learned counsel for the parties have been considered and the record of the case carefully perused.
8. Sub-section (2) of Section 14 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 was added by the Ordinance No. 26 of 1975, and was replaced by the Rajasthan Act No. 14 of 1976. Sub-section (2) of Section 14 provides that no decree for eviction on the ground set forth in Clause (h) of Sub-section (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 part of the premises, the Court shall pass the decree in respect of such part only.
9. The short question which requires consideration is whether the first appellate Court should have directed the trial Court to frame an additional issue on theground of comparative hardship while setting aside the judgment and decree of the trial Court, as has been done in the instant case, or it should have framed an additional issue and remitted the case to the trial Court to record evidence and finding on that issue and then re-submit the record to the appellate Court for decision of the appeal on merits. In Bahirumal Basdev v. Lalit Kishore (AIR 1976 Raj 244), it was held that after coming into force of the new Amending Ordinance of 1975, a decree for eviction on the ground of reasonable and bona fide necessity under Section 13 (1) (h) can only be passed if the Court is satisfied that greater hardship would be caused to the landlord by refusing to pass the decree. It was further held that in view of the express provision contained in Order 41, Rule 25, C. P. C., this Court cannot have recourse to inherent powers under Section 151, C. P. C. In Lal Chand Goyal v. Jeet Raj Tatia, 1977 WLN (UC) 53, an issue of comparative hardship was framed, and the case was remitted to the learned appellate Court for recording evidence and finding thereon. In General Auto Agencies, Jaipur v. Kazan Singh (AIR 1977 Raj 180). an issue was framed and the same was remitted to the trial Court with the direction to give an opportunity to lead evidence, and then return the case to the Court along with the finding thereon. Prabhash anker v. Rukmani (AIR 1976 Raj 17) and Bhanwar Lal v. Nath Mal (AIR 1976 Raj 137) have been considered in Bahirumal Bandev v. Lalit Kishore. In Firm Kbila Ram Jawahar Lal v. Smt. Ghisi Bai, 1976 WLN (UC) 68, the judgment and decree of the lower Court were set aside and the case was remanded for framing the issue on the question of comparative hardship. The parties were permitted to amend their respective pleadings on the newly framed issue. In Mehta Manuk Lal v. Modi Fateh Lal (1976 WLN (UC) 69), judgment and decree of the lower Courts were set aside and the case was remanded to the trial Court with a direction to frame an appropriate issue on the question of comparative hardship. The parties were permitted to amend their respective pleadings and they were also allowed to lead evidence.
10. In Ghanshyam v. Bhagwandas, 1976 WLN (UC) 96, judgment and decree of the lower Courts were set aside and the learned Court below was directed to frame an additional issue on the question of comparative hardship, and then decide the case on merit. In Mishrilal v. Shiv Charan (AIR 1977 NOC 142 (Raj)), it was held that the provisions of Order 41, Rule 23, C. P. C., as amended in the State of Rajasthan are couched in very wide language and that in the interests of justice even though the suit may not have been decided on preliminary point, the first appellate Court had jurisdiction to remit the case to the trial Court after setting aside the judgment and decree of the trial Court.
11. Order 41, Rule 23, C. P. C., as amended in Rajasthan with effect from 11th March, 1965, reads as under :--
'Where the Court from whose decree an appeal is preferred has disposed of the suit on a preliminary point and the decree is reversed in appeal, or where the Appellate Court, while reversing or setting aside the decree under appeal considers it necessary in the interests of justice to remand the case, it may by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with direction to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.'
11-A. It was also contended that the provisions of Order 41, Rule 25, C. P. C. would not apply as it cannot be said that the learned trial Court omitted to frame an issue which it could, at the time when the issues were framed, no plea of comparative hardship was incorporated in the pleadings.
12. Section 14 (2) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 was incorporated by the Ordinance of 1975 with retrospective effect. It was contended that by means of a legal fiction it could be construed that this provision existed when the plaint was filed, and that the learned lower Court could have framed the issue on comparative hardship on the ground that such plea was incorporated. The procedure for trial of suits is only a handmaid of justice. The benefit of the provisions of the Ordinance, 1975 has to be extended to the tenants, at the same time the provisions of this Ordinance cannot be used as a means for protracting the litigation indefinitely, or for having a second inning in the suit. Without entering intothe question whether the provisions of Order 41, Rule 23 or 25, C. P. C. must apply, it appears expedient and necessary in the interests of justice that an issue ought to have been framed and remitted to the learned trial Court by the lower appellate Court. The lower appellate Court has seriously erred in law in setting aside the judgment on all other issues without entering into the examination of the merits of those issues.
13. For the reasons stated above, the appeal filed by the appellant is hereby allowed. The judgment of the lower appellate Court is set aside. The following issue is struck :--
'Whether in the facts and 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?'
14. The case is remitted to the learned trial Court for recording a finding on this additional issue after allowing the parties to amend their pleadings and to lead evidence. The learned trial Court shall submit the record of the case to the learned lower appellate Court within three months. After receipt of the record, the learned lower appellate Court shall decide the appeal on merits.
15. There would be no order as to Costs.