ORDER
N.M. Kasliwal, J.
1. These three revisions are disposed of by a common order, as the landlords in all the three cases are the same and the three revisions have been filed by three different tenants, but a common order has been passed by the learned trial Court in all the three cases and common question of law is involved in these cases. The plaintiff-non-petitioners filed a suit for eviction on the ground of reasonable and bona fide personal requirement of the suit premises, During the pendency of the suit, Rajasthan Premises (Control of Rent and Eviction) Act, 1950, was amended by Amending Ordinance No. 26 of 1975 which was later on replaced by Act No. 14 of 1976. A new Section 14 was introduced in the Amending Act which reads as under:
“Section 14 — Restriction on eviction 5 (1) — No decree for eviction on the ground set forth in Clause (b) of Sub-section 13 shall be passed unless the court is satisfied, after taking all the facts and circumstances into consideration, that it is reasonable to allow such eviction.
(2) — No decree for eviction on the ground set forth in Clause (b) 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 could 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 a part of the premises, the court shall pass the decree in respect of such part only.
Notwithstanding anything contained In any law or contract, no suit for eviction from the premises let out for commercial or business purposes shall lie against a tenant on the ground set forth in Clause (b) of Sub-section (a) of Section 13 before the expiry of five years from the date the premises were let out to the tenant.” After coming into force of the above amending Act, the petitioner filed an application for amendment of the written statement, which was allowed and an additional issue No. 4-A on the question of comparative hardship was framed which reads as under :
^^D;k fookn xzLr Hkwfe [kkyh
djkus dh fMØh oknh ds fgr esa lkchr u fd;s tkus dh gkyr esa izfroknh ds eqdkcus
oknh dks vf/kd gkMZf’ki gksxh \**
2. The petitioner then submitted an application praying therein that the above issue may be amended and the burden of proof should be placed on the plaintiffs. The learned trial Court by its impugned order re-framed the issue as under :
^^D;k fooknxzLr Hkwfe fjDr djkus
dh vkbZ;k vkns’k ls gksus okyh dfBukbZ izfroknh vkifÙk ;LohHkwfr vkns’k dh
fLFkfr esa oknh dh dfBukbZ dh vis{kk vf/kd dfBukbZ gksxh A**
The same order has been passed in similar circumstances in all the three cases. Hence these revisions have been filed by all the three tenants.
3. Learned counsel for the petitioner has placed reliance on an unreported judgment of this Court in Civil Revn. No. 238 of 1976 (Raj), Swaroop Singh Sher Singh v. Mohanlal, decided on 6-9-1976 and P. B. Desai v. C. M Patel, AIR 1974 SC 1059. On the basis of the above decision the learned counsel contends that the burden of proof of the issue framed regarding comparative hardship should have been placed on the plaintiffs. On the other hand, learned counsel for the plaintiffs has contended that according to the language of Section 14(2) of the Amending Act, the burden of proof of comparative hardship should be placed on the defendant tenant and not on the landlord. It is next contended that even if the trial Court has committed any error of law in placing burden of proof wrongly on the defendant tenant, this Court cannot interfere in exercise of its revisional jurisdiction under Section 115 of the Civil P. C.
4. Their Lordships of the Supreme Court in the case P. B. Desai v. C. M. Patel; AIR 1974 SC 1059 have laid down as under (at p. 1065):
“So far as the finding on the question of greater hardship is concerned, the District Judge decided against the respondents on the view that as soon as the landlord establishes that he reasonably and bona fide requires the premises for his own use and occupation, the burden
of proving that greater hardship would be caused by passing a decree for eviction than by refusing to pass it is on the tenant and if the tenant fails to discharge this burden by producing proper evidence, a decree for eviction must go against him. This view in regard to the burden of proof, no doubt, prevailed at one time in various High Courts on the basis of the decision of the Court of Appeal in England in Kelly v. Goodwin (1947) 1 All ER 810 but it can no longer be regarded as correct after the decision of this Court in Central Tobacco Co. v. Chandra Prakash Civil Appeal No. 1175 of 1969 D/- 23-4-1969 (reported in AIR 1969 NSC 88), This Court speaking through Mitter J., pointed out in that case, while discussing Section 21(4) of the Mysore Rent Control Act, 1961, and what was said there must apply equally In relation to Section 13(2) of the Bombay Rent Act, which is in identical terms:
“We do not find ourselves able to accept the broad proposition that as soon as the landlord establishes his need for additional accommodation he is relieved of all further obligation under Section 21 Sub-section (4) and that once the landlord’s need is accepted by the Court all further evidence must, be adduced by the tenant if he claims protection under the Act. Each party must adduce evidence to show what hardship would be caused to him by the granting or refusal of the decree and it will be for the court to determine whether the suffering of the tenant in case a decree was made, would be more than that of the landlord by its refusal.
The whole object of the Act is to provide for the control of rents and evictions for the leasing of buildings etc. and Section 21 specifically enumerates the grounds which alone will entitle a landlord to evict his tenant. Clause (h) of Section 21 contains one of such grounds, namely, that the premises are reasonably and bona fide required by the landlord for occupation by himself. The onus of proof of this is certainly on the landlord. We see no sufficient reason for holding that once that onus is discharged by the landlord it shifts to the tenant making it obligatory on him to show that greater hardship would be caused to him by passing the decree than by refusing to pass it. In our opinion both sides must adduce all relevant evidence before the court, the landlord must show
that other reasonable accommodation
was not available to him and the tenant
must also adduce evidence to that
effect It is only after sifting such evidence that the court must form the conclusion on consideration of all the circum
stances of the case as to whether greater
hardship would be caused by passing
the decree than by refusing to pass it.”
It is further held by their Lordships
“It is, therefore, clear that the District
Judge placed the burden of proof
wrongly on the respondents and the
finding of fact arrived at by him on
question of greater hardship was vitiated by a mistake of law.”
Hon’ble Sachar
J, in case of Swaroop Singh Sher Singh
v. Mohanlal (referred to above) placing
reliance on the above Supreme Court
case observed as under:
“In my view, therefore, the burden should not have been placed on the tenant petitioner. The trial Court has committed a material irregularity in placing burden on the defendant. It is proper that this illegality should be corrected at the earliest.”
5. In view of the above decision of Hon’ble the Supreme Court the matter’ finally sets at rest. The burden of proof on the question of greater hardship shall: always lie initially on the landlord However Their Lordships have already made it clear as mentioned above that once that onus is discharged by the landlord, it shifts to the tenant making it obligatory on him to show that greater hardship would be caused to him by passing the decree than by refusing to pass it. Both the parties must adduce all relevant evidence before the court and the court after sifting such evidence, must form its conclusion on consideration of all the circumstances of the case as to whether greater hardship would he caused by passing the decree than by refusing to pass it. The placing of burden of issue wrongly on a party is a material irregularity in the exercise of jurisdiction by the trial Court and this Court has jurisdiction to correct such error in exercise of its powers under Section 115 C, P. C. I am in agreement with the view taken by Hon’ble Sachar J. that such illegality should be corrected at the earliest.
6. In this view of the matter the above revisions succeed, the order of the learned trial Court dated 11th October, 1976, passed in all the three cases mentioned above, so far as placing the burden of proof on the defendant tenant is set aside and the burden of proof of such issue is placed on the plaintiffs. In the facts and circumstances of the case there will be no order as to costs.