JUDGMENT
Rajesh Balia, J.
1. This is defendant’s second appeal against the judgment and decree of eviction passed against him by both the courts-below. The respondent-plaintiff filed the present suit in the year 1980 for eviction of the appellant defendant from the suit premises, which is admittedly a car garrage constructed within, the residential house of the plaintiff. Plaintiff’s case was that when he had constructed the house he did not have sufficient means to own a car therefore initially he let out garrage to the defendant, who is doing laundry business therein. Now that the plaintiff has the mean to acquire the car, he therefore requires the suit premises for parking of his car.
2. The defendant contested the suit inter alia on the ground that it is not the defendant, but his son Dinesh Kumar it the tenant. He also denied that any need exists for the use of premises for car parking by the plaintiff.
3. The suit was also based on the ground of default, but the trial court decided the issue No. 4 in favour of the defendant.
4. The plea of the defendant that it is not Onkar Lal but his son Dinesh Kumar is the real tenant was not accepted and defendant was held to be tenant in the suit premises. Plaintiff’s need for occupying the suit premises was held to be reasonable and bonafide. The question of comparative hardship was also decided in favour of the plaintiff. The suit was decreed by learned Munsif and Judicial Magistrate (South), Udaipur on 24.4.1992.
5. Aggrieved with the aforesaid judgment and a decree the defendant preferred an appeal before the learned District Judge, Udaipur, who transferred the appeal for disposal to the Additional Civil Judge No. 2, Udaipur, who by his judgment dated 9.7.1993 dismissed the appeal affirming the decree passed by the trial court.
6. Learned Counsel for the appellant raised two contentions before me. Firstly it was contended that the lower appellate court has not applied its mind to the question of comparative hardship and has ignored the availability of alternative accommodation while deciding the question of comparative hardship.
7. The facts necessary in this regard, which have come on record are that suit premises is constructed as garrage on the ground floor at the road level. The suit house is not having open compound within its boundary walls surrounding the main building. Adjoining to the garrage, a pole and adjoining to this pole a shop is situated. It is not also disputed that so called pole and shop are constructed three feet above road level. Alternative accomocation, which can be occupied by plaintiff as per the defendant, were the said pole, the shop and a chowk which could be approached only through the pole by demolishing the raised construction of three feet and bringing it to ground level. Apart from aforesaid accommodation, other open space suggested as alternative accommodation are space, in the nearby public school, the open space on the public road in front of the suit house and a godwon of the plaintiff, which is admittedly situated about 2 kilometers away from the plaintiff’s house.
8. In view of the aforesaid facts, after noticing all these facts, the trial court found that by requiring the plaintiff to use pole or the shop or the chowk, which is approachable only through pole, as a car parking place as garrage would require the plaintiff to materially alter the pole or the shop of the residential house of the plaintiff razing the same to ground level and convert these other accommodations which are being used for other purposes by the, plaintiff, to a garrage and deprive plaintiff of such use of such parts of the premises. Thus these accommodations can not be termed as alternative accommodations available with the plaintiff for use as car garrage. It also came to the conclusion that the suggestion that the plaintiff can place his car in open space of the public school or on the public road also cannot be accepted keeping in view the safety requirement of keeping the car and the fact that the plaintiff has no right and cannot be compelled to use the school ground or public road as garrage. Regarding availability of godwon, it came to the conclusion that it can not be expected to park his car 2 Kms away from the residence and cannot be considered to be a suitable alternative accommodation for parking the car which is a thing of daily use and for speedy transportation from the place of residence. The appellate court after taking note of the arguments raised before it came to a positive finding that the plaintiff has only place where he can park the car, is the garrage in dispute that is to say the appellate court agreed with the finding of the trial court and rejected the defendant’s plea that any suitable accommodation is available, plaintiff while taking into consideration the case of comparative hardship. Therefore, in my opinion, it cannot be said that lower appellate court has arrived at its conclusion without application of its mind to all the material on record and without taking into consideration the plea of the defendant about availability of alternative accommodation. Thus, the finding about comparative hardship having been arrived at after taking into consideration all the relevant facts is not open to challenge in the second appeal as it does not give rise to any substantial question of law.
9. The Second contention raised by learned Counsel for the appellant is that the District Judge had no jurisdiction to transfer the appeal filed before him to Additional Civil Judge, Udaipur. This argument is stated to be rejected. Section 24 of the Code of Civil Procedure, clearly confers such power on the District Judge to transfer any appeal pending before it to any court subordinate to it. It can not be disputed that Additional Civil Judge No. 2, Udaipur, to whom the appeal was transferred is a court subordinate to District Court, Udaipur. Thus the source of power being there, the order can not be invalidated by referring provisions of other statutes which may not contain such power.
10. No other point was pressed.
11. Appeal is dismissed.
12. Learned Counsel for the appellant lastly urged that the appellant is occupying the suit premises for last 22 years, he may be allowed reasonable time to surrender the vacant possession of the suit premises. It may be noticed that suit was filed way back in 1980. The defendant had enough time to search alternative accommodation genuinely. He chose to contest the suit on frivolous plea of denying tenancy between himself and landlord by setting up that tenancy exist in favour of his minor son. The appellant is not entitled for any lenient view in the matter. Be that as it may, it is ordered in the interest of justice that decree for eviction against the appellant shall not be executed for six months provided he furnishes an undertaking within one month before the executing court, i.e. Munsif and Judicial Magistrate, Udaipur (South) that he shall surrender the vacant possession of suit premises on or before 20th Feb1994 and that he shall not part with the possession of the suit premises in favour of anybody except the decree holder in any manner. The appellant shall also continue to pay mesne prof at the rate at which rent was payable per month until he physically surrenders the vacant possession of the suit premises to the plaintiff-decree holder and shall further pay any sum due under the decree and arrears of rent upto date if any within one month from today.
13. There will be no order as to costs of this appeal.