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PETITIONER: BABU LAL

       Vs.

RESPONDENT: VINOD KUMAR & ANR.

DATE OF JUDGMENT:       01/11/2000

BENCH: D.P. Mohapatra & Y.K. Sabharwal.

JUDGMENT:

Y.K.SABHARWAL,J.

Leave granted. L...I...T.......T.......T.......T.......T.......T.......T..J

   The  tenant is the appellant.  By the impugned  judgment the  second  appeal filed by him has been dismissed  by  the High   Court  at  the  admission   stage  finding  that   no substantial question of law is involved.  The facts in brief are as follows:

   A  petition  for eviction on various grounds  was  filed against  the  appellant  in the year 1979.   The  ground  of eviction  relevant for the present purposes is only the bona fide need of the respondents under clause (h) of sub-section (1) of Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950.  Under the said provision the Court on being satisfied that the premises are required reasonably and  bona fide by the landlord for the use or occupation  of himself  or his family members could pass a decree in favour of  the  landlord directing the eviction of the tenant.   In the  present case, a decree for eviction was passed  against the  appellant  on  12th February, 1986.  The  first  appeal filed  by  the  appellant  was dismissed  by  an  Additional District  Judge  on 6th May, 1993.  The decree of the  trial court  and  the order in appeal were, however, set aside  by the  High Court in second appeal preferred by the appellant. In terms of the decision dated 21st December, 1993, the High Court,  inter alia, noticed that one of the grounds taken by the  tenant  that  another  house   was  available  for  the residence  of the respondents and the said house had come in their occupation after the decision of the suit by the trial court  had  not  been  considered.  In this  view  and  also keeping  in  view the fact that counsel for the  respondents did  not  dispute  that  the appellant was  entitled  to  be granted  an  opportunity to amend the written  statement  so that the subsequent events can be brought on record, setting aside  the judgment and decree of the courts below, the High Court  remanded  the  case for fresh decision of  the  trial court  directing  the trial court to allow the appellant  to amend  the  written  statement  to   bring  on  record   the subsequent  events of construction of a house and same being available  to the respondents/their father and other  family members and to allow the respondents to file replication, if any,  to  the amended written statement to be filed  by  the appellant and to decide the matter afresh after allowing the

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parties to lead additional evidence on this point and taking into  consideration the evidence already recorded during the trial.   After  remand two additional issues were framed  by the trial court which read as under:

   Issue  No.1-A:  Whether, after construction of the house bearing  No.53-A,  Ranjit Nagar, Bharatpur by the mother  of the  plaintiffs,  the plaintiffs have no requirement of  the disputed  Nauhra to get the same vacated in good faith,  and on  this  ground  the suit of the plaintiffs is  fit  to  be dismissed?

   Issue   No.8-A:   Whether  in   view  of  the  statement contained in para No.8 of the written statement filed during the  pendency  of the suit, the plaintiffs are left with  no requirement of the suit premises?

   The trial court on consideration of the matter afresh by judgment  and  decree dated 19th December, 1996, inter  alia held  that  the respondents have 27 members of their  family and  there  are  only 13 rooms available to  them  and  they require  the  premises  in dispute in good faith  for  their residential  use.  The plea that after construction of House No.53-A  in  Mohalla  Ranjit  Nagar by  the  mother  of  the respondents  they  were  left  with no  requirement  of  the disputed  house  was  negatived.  The issue  of  comparative hardship  was  also  decided in favour  of  the  respondents holding  that  the  appellant is not likely  to  suffer  any hardship  if  the disputed premises is got vacated from  him and  that  the  respondents shall suffer  more  hardship  in comparison  to the appellant if the disputed premises is not vacated  by  the appellant.  The judgment and decree of  the trial  court was affirmed in appeal by the learned  District Judge in terms of the judgment dated 17.12.1999.  The second appeal  having  been  dismissed, the tenant  has  filed  the present  appeal.  The litigation has already taken nearly 21 years.

   Having  heard learned counsel for the parties, we do not find  any  ground to interfere with the concurrent  findings recorded  by  all  the  courts.   Dr.Rajiv  Dhawan,  learned counsel  for the appellant, however, contends that it was  a case  of an open remand in terms of the decision of the High Court dated 21st December, 1993 and has been wrongly treated as  a  case  of limited remand by the trial court.   On  the facts  and circumstances of the case it is not necessary  to go  into this aspect.  We would assume that it was a case of open  remand to reconsider afresh the ground of eviction for the  personal need of the respondents.  Even so we find that on  consideration  of the evidence, the trial court  rightly decreed  the  suit.   There is also no merit  in  the  other contention  that  comparative hardship aspect has  not  been taken  into  consideration by the trial court.   As  already noticed, the trial court has held that the respondents shall suffer  more hardship in comparison to the appellant in case the  disputed premises is not vacated by the appellant.   We find no ground to interfere with the said findings.

   There  is  no  ground  to interfere  with  the  impugned judgment.    However,  having  regard  to  the   facts   and circumstances  of the case, the time to vacate the  premises is  extended upto 31st December, 2001 instead of 30th  June, 2001  as granted to the appellant by the High Court  subject to  the  appellant’s filing usual undertaking in this  Court within a period of four weeks.

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   Subject  to the above variation, the appeal is dismissed leaving the parties to bear their own costs.