JUDGMENT
Sunil Kumar Garg, J.
1. This second appeal has been filed by the appellant-defendant against the judgment and decree dated 23.2.1999 passed by the learned Addl. District Judge No. 1, Sri Ganganagar in Civil Appeal No. 35/1996 by which he allowed the appeal of the plaintiff-respondent and set aside the judgment and decree dated 4.7.1996 pissed by the learned Addl. Civil Judge (JD) No. 2, Sri Ganganagar dismissing the suit of the plaintiff-respondent and after deciding issues No. 5, 6 and 7 in favour of the plaintiff-respondent, he decreed the suit filed by the plaintiff-respondent against the defendant-appellant for eviction from the shop in question on the ground of reasonable and bonafide necessity as contained in Section 13(1)(h) of Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (hereinafter referred to as “the Act of 1950”).
2. The necessary facts giving rise to this second appeal are as follows:-
On 16.7.1985, the plain tiff-respondent filed a suit against the defendant-appellant for eviction from the shop in question situated in Public Park, Sri Ganganagar measuring 27x 14 foot on various grounds and one of the grounds was that since the plaintiff-respondent would do the business of electrical articles in the disputed shop and since there was no other alternative accommodation, therefore, shop in question was required by the plaintiff-respondent bonafidiely and reasonably. It was further pleaded in the plaint that in Sri Ganganagar, other shops were available to the defendant appellant and therefore, in case the decree of eviction was not passed, a greater hardship would be caused to the plaintiff respondent in comparison to the defendant-appellant and furthermore, shop in question was not divisible and thus, it was not possible to pass a decree of partial eviction.
The suit of the plaintiff-respondent was contested by the defendant-appellant by filing a written statement and in that written statement, it was averred that the plaintiff-respondent would not do any business in the shop in question, as he had already sufficient agriculture land in Punjab for doing business. Hence, no case for passing decree of eviction in favour of plaintiff respondent was made out and the suit be dismissed.
On the pleadings of the parties, on 4.2.1988, the learned trial Judge framed as many as 12 issues. The issue No. 5 pertained to bonafide and reasonable necessity, issue No. 6 pertained to comparative hardship and issue No. 7 pertained to partial eviction.
Thereafter, both the parties led evidence in support of their respective case.
After hearing both the parties and after considering the evidence led by the parties, the learned Addl. Civil Judge (JD) No. 2, Sri Ganganagar dismissed the suit of the plaintiff-respondent holding inter-alia:-
(i) That need of the plaintiff-respondent for the shop in question was not found reasonable and bonafide and thus, the learned trial Judge decided issue No. 5 pertaining to reasonable and bonafide necessity against the plaintiff-respondent.
(ii) That so far as the issue No. 6 pertaining to comparative hardship is concerned, the learned trial Judge did not give any finding on that issue as the issue No. 5 pertaining to bonafide and reasonable necessity was decided against the plaintiff-respondent.
(iii) That so far as issue No. 7 is concerned, the same was decided in the manner that division of the shop in question was not possible and thus, it was decided against plaintiff-respondent.
Aggrieved from the said judgment and decree dated 4.7.1996 passed by the learned Addl. Civil Judge (JD) No. 2, Sri Ganganagar, the plaintiff-respondent preferred first appeal before the Court of District Judge, Sri Ganganagar and later on, it was transferred to the Court of Addl. District Judge No. 1, Sri Ganganagar.
The learned Addl. District Judge No. 1, Sri Ganganagar through impugned judgment and decree dated 23.2.1999 allowed the appeal of the plaintiff-respondent and set aside the judgment and decree passed by the learned Addl. Civil Judge (JD) No. 2, Sri Ganganagar and decreed the suit of the plaintiff-respondent for eviction against the defendant-appellant on ground of reasonable and bonafide necessity as defined in Section 13(1)(h) of the Act of 1950 holding inter-alia:-
(i) That so far as issue No. 5 pertaining to reasonable and bonafide necessity is concerned, the learned First Appellate Court came to the conclusion that the need of the plaintiff-respondent for the shop in question was reasonable and bonafide one. The learned First Appellate Court further came to the conclusion that no doubt plaintiff-respondent had agriculture land in Punjab, but that land was being cultivated by others and if he intended to do business in the shop in question, he may do so as he had a right to do any particular business. Thus, the learned First Appellate Court reversed the findings of the learned Trial Court on issue No. 5 and decided issue No. 5 pertaining to reasonable and bonafide necessity in favour of the plaintiff respondent.
(ii) That so far as issue No. 6 pertaining to comparative hardship is concerned, that issue was not decided by the learned Trial Court and the prayer of the defendant-appellant that the case be remitted back to the learned Trial Court for deciding issue No. 6 was rejected and the learned First Appellate Court itself decided the issue No. 6, as according to it, there was ample evidence on record to decide that issue.
From the evidence on record, the learned First Appellate Court came to the conclusion that the plaintiff-respondent had no other alternative accommodation except the shop in question for doing business of electrical goods and the defendant-appellant had failed to prove , that he made efforts to get alternative accommodation. Therefore, the learned First Appellate Court categorically came to the conclusion that if the decree of eviction was not passed, the plaintiff respondent would be put to more hardship than to the defendant-appellant. Hence, issue No. 6 pertaining to comparative hardship was decided in favour of the plaintiff respondent and against the defendant appellant.
(iii) That so far as issue No. 7 pertaining to partial eviction is concerned, the learned First Appellate Court came to the same conclusion as recorded by the learned Trial Court that division of the shop in question was not possible.
Aggrieved from the said judgment and decree dated 23.2.1999 passed by the learned Addl. District Judge No. 1, Sri Ganganagar, the defendant-appellant has preferred this second appeal.
3. This Court vide order dated 12.4.1999 while admitting this second appeal framed the following substantial questions of law:-
“(1) Whether the first appellate court on the point of payment of Rs. 6,000/- as rent for 22 months has disbelieved the statement of PW1 Sushil Kumar, who was believed by the learned Trial Court, without following the norms for appreciation of oral evidence?
(2) Whether once the Trial Court having an opportunity to see de meanor of a witness has believed the witness, the learned first appellate court, unless some special reasons are recorded, should not have disbelieved the statement of such witness?
(3) Whether the learned first appellate court has committed substantial error of law in not remitting the issues of comparative hardships and partial eviction to the learned Trial Court as envisaged under Order 41 Rule 25 CPC?”
4. I have heard the learned counsel for the appellant-defendant and the learned counsel for the respondent-plaintiff and gone through the record of the case.
5. First the substantial question No. 3 is being decided.
Substantial question No. 3
6. Before proceeding further, it may be stated here that so far as issue No. 5 pertaining to reasonable and bonafide necessity is concerned, for that no substantial question of law has been framed by this Court and thus, the findings of the learned First Appellate Court on issue No. 5 that the need of the plaintiff respondent for the shop in question was bonafide and reasonable one have become final one.
7. There is no dispute on the point that issue No. 6 pertaining to comparative hardship was not decided by the learned Trial Court and the prayer of the defendant appellant for remitting the case to the learned Trial Court for deciding that issue was rejected by the learned First Appellate Court and on the contrary, the learned First Appellate Court itself decided that issue.
8. The first question that falls for consideration is whether in a case where issue of bonafide and reasonable necessity was decided by the learned Trial Court against the plaintiff, in such a situation, issue of comparative hardship should be decided by the learned Trial Court or not.
9. It may be stated here that issue of comparative hardship as is contained in Section 14(2) of the Act of 1950 pertains to reasonable and bonafide necessity of the landlord as defined in Section 13(1)(h) of the Act of 1950.
10. The above question has been answered by this Court in Dr. Saligram v. Sagar Chand, 1983 RLW 101, by holding that the question of comparative hardship was not to be considered when ground of bonafide and reasonable necessity failed. The evidence recorded in respect of comparative hardship under Section 14 of the Act of 1950 can be looked into only if the plaintiff first makes out a case of bonafide and reasonable necessity.
11. Thus, in view of the above, since in the present case, the issue No. 5 pertaining to reasonable and bonafide necessity was decided by the learned trial Judge against the plaintiff-respondent, therefore, in such a situation, there was no occasion for the learned trial Judge to decide issue No. 6 pertaining to comparative hardship. Therefore, in these circumstances, if the learned trial Judge had not decided issue No. 6 pertaining to comparative hardship, he has committed no illegality or infirmity in doing so.
12. The next question that arises for consideration is when any issue or point had not been decided by the learned trial Judge, whether learned appellate court should remit the matter to the learned trial Judge for deciding that issue or point which was not decided by the learned trial Judge while delivering original judgment?
13. The substantial question No. 3 pertains to the above question and that has to be answered now.
14. The legal position on that point is found in Order 41 Rules 24 and 25 CPC.
15. According to Rule 24 of Order 41 CPC, where the evidence upon the record was found to be sufficient to enable the Appellate Court to pronounce judgment on any issue, which was not decided by the learned Trial Court, the Appellate Court may finally determine that issue. This rule enables the appellate court to dispose of the case finally without a remand if the evidence on the record is sufficient for the purpose.
16. It is a rule of law that the case should be disposed of on the evidence on record and should not be remanded for fresh evidence, except in rare cases as where there has been no proper or regular trial and prejudice has been caused in consequence.
17. This Court in Hari Shanker v. LRs of Bhanwar Lal, 1998 A.I.H.C. (Raj.) 123, RLW 1997(3) Raj. 2079, has held that where the evidence upon the records are found to be sufficient by the first appellate courts to enable them to pronounce judgments on merits, it can do so by pressing into service the provisions postulated under Order 41 Rule 24 CPC instead of remanding the suit to the Trial Courts.
18. Therefore, if the Appellate Court has ample evidence before it, it can decide the point without remitting the matter to the Trial Court under Order 41 Rule 25 CPC.
19. Thus, it can be held that even first appellate court is also competent to decide all issues in a suit including the issue of comparative hardship and for that, the judgment of this Court in Babulal and Ors. v. Mohd. Rafiq and Ors., 1991(2) WLC (Raj.) 17, may be referred to.
20. Apart from this, as per Section 103 CPC, even the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal, which has not been determined by the lower appellate court or both by the court of first instance and the lower appellate court.
21. Thus, from every point of view, the first appellate court has power to decide an issue which has not been decided by the Trial Court provided there should be sufficient evidence before the first appellate court.
22. When this being the position of law, the submission of the learned counsel for the defendant appellant that the first appellate court should have remitted the matter to the Trial Court for deciding issue No. 6 pertaining to comparative hardship, stands rejected and the learned First Appellate Court has not committed any illegality or infirmity in deciding that issue No. 6 by itself instead of remitting the matter to the learned Trial Court as there was sufficient evidence before it to decide that issue No. 6.
23. The next question that arises for consideration is whether the findings of the learned first appellate court on issue No. 6 with regard to comparative hardship can be said to be erroneous or perverse one or not.
24. Before proceeding further, it may be stated here that it is well established law that the finding regarding comparative hardship is a finding of fact and for that, the law laid down in Bhagwan Vishwanath Phadnis and Ors. v. Bhaskar Digamber Choudhary, AIR 1977 SC 2183, may be referred to.
25. In the present case, on consideration of the evidence on record, the learned First Appellate Court found that the plaintiff-respondent had no other alternative accommodation except the shop in question for doing the business of electrical goods and on the contrary, the defendant appellant had not made any efforts to search out alternative accommodation. Therefore, the learned First Appellate Court has categorically come to the conclusion that if the decree of eviction was not passed, the plaintiff respondent would be put to more hardship than to the defendant appellant.
26. In my considered opinion, since the question of comparative hardship is a question of fact and the findings of the learned First Appellate Court that in case the decree of eviction was not passed, the plaintiff respondent would be put to more hardship than to the defendant appellant are based on correct appreciation of evidence on record and they do not suffer from any basic illegality or infirmity, therefore, they are not to be interfered with by this Court in second appeal.
27. Apart from this, the High Court in second appeal cannot set side a finding of fact though recorded by the learned first appellate court for the first time. From that point of view also, the findings recorded by the learned first appellate court on issue No. 6 pertaining to comparative hardship in favour of plaintiff respondent, which are based on correct appreciation of evidence on record, are not to be interfered with by this Court in second appeal.
28. So far as issue No. 7 pertaining to partial eviction is concerned, as already stated above, there are concurrent findings of facts recorded by both the courts below that division of the shop in question was not possible and especially looking to the size of the shop in question, these findings of facts appears to be sound one on the point that shop in question cannot be divided into two.
29. So far as the argument of the learned counsel for the defendant-appellant that no doubt first appellate court has power to decide an issue, which has not been decided by the Trial Court, but by doing so, the party in the present case defendantappellant has been deprived of his right to assail findings on the ground that he will have only one right of appeal and not right of two appeals, especially when in second appeal, findings of facts are not being touched, is concerned, in my considered opinion, the same cannot be appreciated in view of the fact that once the first appellate court has power to decide an issue, which has not been decided by the Trial Court, this right cannot be said to have been curtailed merely on the ground that one right of appeal would be lost. For that, this Court is in agreement with the law laid down by the Punjab and Haryana High Court in Sacha Singh v. Bhalwan, 1999(2) Civil LJ 601 (P&H HC).
30. For the reasons stated above, the substantial question No. 3 framed by this Court is answered in the manner that the learned first appellate court has not committed any substantial error of law in not remitting the issues of comparative hardships and partial eviction to the learned Trial Court as envisaged under Order 41 Rule 25 CPC. Hence, substantial question No. 3 stands decided in favour of the plaintiff respondent and against the defendant-appellant.
Substantial Questions No. 1 and 2.
31. So far as substantial questions No. 1 and 2 framed by this Court are concerned, since they have not been pressed much by the learned counsel appearing for the parties, therefore, they are not being decided in this second appeal.
32. Thus, in view of the decision of substantial question No. 3 in favour of the plaintiff-respondent, this second appeal is liable to be dismissed.
Accordingly, this second appeal filed by the appellant defendant is dismissed. However, the appellant defendant is granted six months’ time from today to vacate the shop in question.