JUDGMENT
Guman Mal Lodha, J.
1. This is a defendant’s second appeal against whom a decree for eviction has been passed by the Munsif and Judicial Magistrate, Ramganj Mandi, on 30th March. 1974, and the same has been affirmed in appeal by the District Judge.
2. The brief facts giving rise to this appeal are alleged by the appellant may now be mentioned and they are as under:–
That the plaintiff-respondent Dr. Ram Kumar brought a suit for eviction and arrears of rent against the appellant and his two brothers who are pro forma respondents Nos. 2 and 3 on 14th Oct.,
1971 in respect of a shop situated in Ramganj Mandi on the ground of reasonable and bona fide necessity and arrears of rent amount to Rs. 225 from 15th Jan.. 1970 to 14th Aug., 1971. Para No. 5 of the plaint in which the ground of reasonable and bona fide necessity was mentioned is reproduced as under :
5- ^^;g fd oknh ds nks yMds o;Ld
gks pqds gS o Mhty baftu dh o vkVksekckbYl dh Vsªfuax bUnkSj o vU; LFkkuks ls
izkIr djds vk x;s gS o eksVjksa ds fjis;Zl ikVZl dk /kU/kk izkjEHk dj fn;k gS A
muds futh nqdku ;k edku e.Mh es [kkyh u gksus ls cgqr vlqfo/kk gks jgha gS e.Mh
ls jkst dksVk tkuk vkuk cMk eqf’dy gS c e.Mh esa nqljks dh egjokuh ij vkfJr jguk
iM+ jgk gS A oknh ds YkM+ds ds ikl ?kj nqdku u gksus ls ;gk vLFkkbZ rkSj ls HkS:
yky Hkaojyky dh nqdku ij lkeku Mkd j[kk gS o /kU/kk oknh ds yM+dksa dk BIi gks
jgk gS A oknh Lo;a ukSdj is’kk gS o ljdkjh vLirky dksVk esa MkDVj gS o yM+dks dk
oknh ds lkFk jgdj dk;Z djuk lEHko ugh gS A**
The plaintiff served a notice on all the defendants terminating the tenancy by 14th Aug., 1971. It was also mentioned in the plaint that the shop in question was in a dilapidated condition and could fall down at any time and as such it was necessary to be repaired.
3. The defendants filed their written
statement on 15th Dec., 1971 and among
other pleas submitted that the tenancy
was a yearly one and the rent fixed was
Rs. 151 per year. The present one was
the fourth suit for ejectment since 1954.
The earlier suits had been dismissed and
the present suit was also filed mala
fide. It was held in the last ejectment
suit decided on 9th Aug., 1968 that the
plaintiff had intentionally removed the
stones from the wall of the suit shop in
order to show that the same is in a dila
pidated condition. The following reply
was given to para 5 of the plaint which
reads as under:–
5- ^^;g fd en uecj 5 vthZ
nkok rlyhe ugh gS uk rks eqn~nbZ ds yM+ds bl yk;d gh gS fd eksVj ikVZl dh nqdku
jkexat e.Mh es yxkos cfYd eqn~nbZ ds yM+ds ukfod gS tks i< jgs gSa
eksVj ikVZl dh nqdku jkexat e.Mh esa dksbZ Hkh yxkuk ilUn ugh djrk exj dksbZ
Lis;j ikVZl dh nqdku dksVk esa eqn~nbZ ds yM+ds djrs gksxs Hkh rks jkexat e.Mh tSls xkao esa ?kkVs dh
nqdkunkjh djuk dksbZ ilUn ugh djrk A MkDVj lkgc ;kuh eqn~nbZ x;s 15&20 lky
ls dksVk esa gh jgrs vk;s gSa ftuds dksVk esa futh tk;nkn o nqdkusa dkQh gS
jkexat e.Mh esa dHkh ugha vkrs cfYd muds eq[rkj nqdkuksa dk fdjk;k olwy djrs
gSaS lkeku dk Hks:yky Hkaojyky dh nqdku esa j[kuk Hkh rlyhe ugh gS A eqn~nbZ dh
deZ y[kifr gS tks yu nsu djrh gS cfYd nqdkunkjh dk /kU/kk vkt rd ugh fd;k blfy;s
nqdkunkjh BIi gksus dk loky gh iSnk ugh gksrk A**
It was further submitted that the tenancy being yearly one the notice terminating the tenancy of 15 days was invalid. The rent has been paid and there were no arrears against the defendants. The learned Munsiff framed 7 issues. In issue No. l it was held that the rent was paid as yearly one but as the rent-deed was not a registered one, the tenancy was treated from month to month and not from year to year. In issue No. 2, it was held that the defendants had paid rent up to 15th April, 1971 and the suit was not based on default. The learned Munsif, however, decreed the suit for ejectment on the ground that the plaintiff required the suit shop reasonably and bona fide. On appeal the learned District Judge also held that the tenancy was from month to month and the notice terminating the tenancy within 15 days was valid and that the suit shop was required reasonably and bona fide, by the plaintiff, and the appeal was dismissed.
4. Thus, it would be seen that both the lower courts have given a concurrent finding that the suit-shop was reasonably and bona fide required by the plaintiff.
5. In this appeal, this Court, framed the following issue and remitted it to the District Judge, Kota:–
”Whether having regard to all circumstances of the case including the question whether any other reasonable accommodation is available to the landlord or the tenant, greater hardship would be caused by passing the decree than by refusing to pass it.” The above issue was framed and remitted on account of the amendment by the Rajasthan Premises (Control of Rent and Eviction) Act (14 of 976), by intro-
duction of new Section 14 which reads as under:–
“Section 14. Restriction on eviction.– (1) No decree for eviction on the ground set forth in Clause (b) of Sub-section (1) of 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 (h) 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 would be caused by passing the decree than by refusing to pase 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.
(3) 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 (h) of Sub-section (1) of Section 13 before the expiry of five years from the date the premises were let out to the tenant.”
6. The District Judge, Kota, recorded the evidence. The plaintiff examined himself and produced three of his sons in addition to P.W. 4 Rampratap. The defendant produced himself and one Ramkishan.
7. The learned District Judge on 3 detailed consideration of the entire evidence produced before him, recorded his finding in about 12 typed fullscap pages, holding that the plaintiff has got other reasonable accommodations, and therefore, comparative hardship would be caused to the defendant by passing a decree in favour of the landlord than by refusing to pass it. A number of reasons have been given and one of them which has been debated before me relates to the alternative accommodation available in market No. 2 near the shop of Kanhaiyalal. It has been found that if the plaintiff’s son Prakash Chandra or Harimohan wants to do some business they have got this additional accommodation near the disputed shop. While doing so, the learned District Judge has
taken into consideration various events which have happened up to July. 1977.
8. After this finding was received by this Court, the party aggrieved was required to file objections under Order 41, Rule 26. C.P.C. The finding was received by this Court on 21st Jan., 197R as would be obvious from the office order-sheet. No objections were filed. Ultimately on 30th Jan.. 1979, the case was put up before the Court and the Court directed that one month’s time might be allowed for filing objections if any. After the passing of this order on 30th Jan., 1979, the respondent-plaintiff who is now feeling aggrieved by this finding, did not file any objections, and it was recorded on 3rd March, 1979 that no objections were filed. However, the case was listed before this Court on 26th April, 1979, and again on 2nd July, 1979. On this date, i.e. 2nd July, 1979, one month’s time was again granted. It may be noticed that the case then came up before this Court on 7th Aug., 1979. Mr. Daleep Singh, the learned counsel for the appellant, and Mr. D. K. Soral, the learned counsel for the respondents, were present on that date. It was noticed that no objections were filed against the finding. The learned counsel for the respondents did not make any prayer for permitting him to file objections or for extension of time. Now, the case is being heard in 1982, and it is obvious that no objections have been filed even though the finding was recorded on 12th Sept., 1977 and the respondent-plaintiff had about 4-5 years’ time. In the above circumstances, a preliminary objection was taken by Mr. Singh that the Court should not hear Mr. Soral against the finding as no objections have been filed. Reliance was placed by Mr. Singh on (he decision of a Division Bench of the Lahore High Court in Partab Singh v. Achhar Singh (AIR 1921 Lahore 22S (2)), wherein, it was observed that where no objections are filed under Rule 26, the Court may in its discretion decline to hear objections at the hearing.
9. Mr. Soral confronted with the above submission, has submitted that even objections without being filed, this Court can and should consider the objections. He relied upon the decision of the Allahabad High Court in Mukhtara v. Sardara (AIR 1923 All 417 (1)). The following observations were made in that case:–.
“The defendant comes here in second appeal and says that this action of the learned Dist. Judge was not warranted by law, and that he ought to have himself considered whether the findings were good or bad findings and should have then decided the case. In support of this contention, the case of Mumtaz Begum v. Fateh Husain ((1984) ILR 6 All 391) has been referred to me. This contention is fully borne out by the ruling relied upon and the learned District Judge ought to have himself considered the correctness or otherwise of the findings returned by the Munsif before deciding the appeal. ”
Reliance was also placed by Mr. Soral on the decision of the Supreme Court in Rallis India Ltd. v. G. Lakshmi Kan-than (AIR 1976 SC 23301, in which it was observed as under:–
“the scope of remand was limited to a finding whether he had committed any act in his capacity as an empolyee that would entail his discharge from service while writing the offending letter as a shareholder and not to find out whether he had written that letter as an employee.”
Having considered the submissions of learned counsel for the parties, I am of the opinion that the preliminary objections of Mr. Singh should succeed. A party who has failed to file objections for a long period of two years to five years in a case where he wants eviction for bona fide and reasonable necessity, deserves no hearing against the finding, and the Court in its discretion, should disallow any objections at th belated stage. In the instant case as mentioned above, the plaintiff respondent had the opportunity to file objections throughout after the finding was recorded in 1977. This Court granted time expressly for that purpose. Even then the objections were not filed. I am, therefore, of tha opinion that in such a case, a strict view should be adopted and I should refuse to consider the objections against the finding which is in favour of the defendants.
10. Mr. Soral then submitted that the finding is beyond jurisdiction. This contention of the learned counsel for tha respondents, is also untenable, because, the issue expressly shows that the Court was to examine the question of alternative accommodation both for tha landlord and the tenant and the question should have been decided after con
sidering that. The Court recorded evidence on the point of alternative accommodation. The court found that some other accommodation was available to the landlord. It cannot be said that it was beyond jurisdiction or beyond the scope of the issue. Thus, once the issue was remitted to the first appellate court directing the first appellate court to record evidence on the question of alternative accommodation and the first appellate court in compliance of the order of this Court, recorded the evidence and decided it, the respondent who was a party to the framing of the issue leading all the evidence now cannot be allowed to take the plea that this evidence should not be looked into and the earlier finding should be accepted. If that is so, he should have pointed out at the time of the framing of the issue that the question of comparative hardship has already been examined and needs no re-examination. In other words, the counsel for the landlord should have pointed out to this Court when the issue was framed and remitted to the first appellate court that the conditions of Section 14 were already fulfilled and that no fresh evidence was necessary. This having not been done, the respondents cannot be allowed to enjoy the same opportunity now at this stage. The principles laid down in the decision of K. Veerabasappa v. Court of District Judge, Citradurga (AIR 1979 Kant 40), pointed out by Mr. Soral, require no comments.
11. In view of the above discussion, the principles laid down in the decision of Rallis India Ltd. v. G. Lakshmi Kan-than (AIR 1976 Sc 2330) (supra) are not applicable to the facts and circumstances of the present case.
12. Mr. Soral submitted that in Cha-tar Lal v. Maham Ramdas (AIR 1979 Raj 87), the finding recorded regarding comparative hardship under Section 14 of the Act has been treated as a finding of fact. It is not necessary for me to enter into this controversy, because, that finding is not under challenge before me in so far as its merits are concerned.
13. The result of the above discussion is that since the defendant-tenant has succeeded to make out a case under Section 14, regarding comparative hardship in the instant case, the decree for eviction, passed by the two courts below cannot be sustained, and the same is set
aside. However, the parties would bear their own costs throughout. The appeal succeeds as indicated above.