JUDGMENT
S.N. Bhargava, J.
1. This is a tenant defendant’s second appeal in a suit for arrears of rent and ejectment, on the ground of reasonable and bonafide necessity. This appeal had come up before me earlier on 7th May, 1987, and after hearing learned counsel for the parties, the case was remanded back to the first appellate court for recording additional evidence, on the ground of subsequent event to show that the landlord has acquired alternative accommodation where his son is carrying on his business of auto repairs. The first appellate court has recorded the additional evidence and has submitted the same to this court. Now, this case has come up for final disposal at the admission stage.
2. The plaintiff respondent had filed the suit out of which the present appeal has come up, on the ground of reasonable and bonafide necessity, on 4-1-1973. The trial court decreed the suit on 15-4-1975. During the pendency of appeal, because of amendment in the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, here in after referred to as the Rent Control Act,’ the case was remanded to the trial court for recording evidence on the point of comparative hardship The trial court decreed the suit again. The appeal was also dismissed. An appeal, being S.B. Civil Second Appeal No. 103/1979 filed by the tenant was admitted and the following substantial questions of law were framed:
(1) Whether, the learned courts below mis-construed the material part of the statement of the plaintiff relating to his admission that he filed suit for the defendant refused to advance loan of Rs. 11,000/-against mortgage?
(2) Whether, the learned courts below made a substantial error of law when it did not give due importance to the aforementioned admission of the plaintiff for the same had not been pleaded by the defendant?
(3) Whether, law of pleadings required that the above admission, which was in the nature of evidence, ought to have been pleaded in the written statement?
(4) Whether, the learned courts below made a substantial error of law when they held that notice to Radhey Shyam alone was sufficient?.
Ultimately, the appeal was allowed, the judgment and decree passed by the first appellate couitwas set aside and the case was remanded to the first appellate court to give an opportunity to the parties to re-examine the plaintiff on the question of his admission, and to decide the appeal afresh. The first appellate court dismissed the appeal by the impugned judgment dated 26-7-1986 and it is against that judgment, that the present appeal has been filed.
3. During the pendency of this appeal, the appellant had filed an application under Order 41. Rule 27, CPC which was allowed by this court by order dated May 7. 1987 and the case was remanded back to the first appellate court for recording additional evidence.
4. The defendant examined himself as DW 1 and also Chhitar Lal as DW 2. They have stated that Om Prakash son of Kanhaiya Lal plaintiff has started working in another shop in the name of Soni Motor Cycle Repairs and have also produced a photograph of the shop. The plaintiff, in rebuttal, examined himself as PW 1 and also examined his son Om Prakash as PW 2. They have also admitted that Om PraKash son of the plaintiff has taken a shop on rent at rate of Rs. 300/- per month and is carrying on his business of motor cycle repairs in the said shop.
5. Learned counsel for the appellant has very vehemently argued that subsequent events should be looked into and no decree of eviction could be passed if the need of the plaintiff stands satisfied before passing the decree even during the pendency of appeal, and has cited a number of decisions on this point which is not necessary to deal with because this proposition cannot be doubted and that is why the case was remanded for recording additional evidence. On facts also, it is clear that the need of the plaintiff for a shop for doing the business of motor cycle repairs by his son Om Prakash has been satisfied as he is carrying on this business in a rented shop which he took on a monthly rent of Rs. 300/- during the pendency of this appeal. But it is yet to be seen when a landlord takes another premises on rent and he or his son starts business, whether it can be said that the rent of the plaintiff landlord is satisfied and decree of eviction on that ground should, not be passed or confirmed. Learned counsel for the respondent has placed reliance on a decision of this court in Heera Lal v. Panna Lal 1974 WLN (UC) 365 wherein it has been held that if a landlord is occupying another premises on rent, it cannot be said that his requirement is not reasonable or bonafide. He has also placed reliance on another decision of the Supreme Court in Smt. Chander Kali Bai and Ors v. Jagdish Singh Thakur 1978(1) RCJ 17) wherein the same view was taken I am also of the same view that if during pendency of the suit or appeal, the landlord acquires another premises on rent, it cannot be said that the need of the landlord has been satisfied and that he does not require the premises reasonably and bonafide. On the other hand, taking another shop on rent by the landlord during the pendency of litigation, shows the bonafide of the landlord and genuineness of his use that the suit premises were required by him reasonable and bonafide for carrying on business by his son. If that were not so, a landlord after having filed a suit on the ground of reasonable and bonafide necessity for doing business in his own shop will have to sit idle and wait for an indefinite period when the litigation is pending in the courts.
6. The only question that now remains to be seen is as to whether after having obtained another premises on rent of Rs 300/- per month by the plaintiff landlord it can be said that the tenant will suffer greater hardship than the ladlord if he is asked to vacate the suit premises. I am afraid in this case, this question cannot be examined because the parties have led no evidence on this point and I do not see any reason as to why the case should be remanded again for the purpose. If the parties wanted to lead evidence on this point, they could have led evidence after the remand of the case by order dt. 7-5-87. More over in the present case, the finding with regard to the bonafide necesrity as comparative hardship could not be challenged even in civil second appeal No. 103/79 because in that case, the only substantial question of law framed (which have already been quoted in the earlier part of this judgment) was that at the stage of admission of second appeal No. 103/79 or at the time of hearing when the appeal was accepted and case remanded, the only point remained to be seen was about the malafide in filing the suit by the plaintiff. After disposal of evil second appeal No. 103/79, the learned counsel for the tenant did not seriously challenge the finding regarding reasonable and bonafide necessity and compirative hardship before the learned District Judge who decided the appeal after the remand in civil second appeal No. 103/79. More over, in this case, there is evidence on record that the appellant has got another accommodation as well in his possession where he is carrying on his business So it cannot be said that greater hardship would be caused to the appellant.
7. Learned counsel for the appellant has also challenged before me