M.C. JAIN, J.—The following question of law was referred by one of us (M.C. Jain, J.) to answered by the Full Bench vide order of reference dated 2-9-1978 :—

"Whether the finding recorded by the first appellate court on the issue relating to comparative hardship remitted by this Court, being a finding of fact, is not open to challenge in the second appeal ?

2. The material facts leading to the present reference may be briefly stated as follows:—

3. Mahant Ramdas, plaintiff-respondent, instituted a suit for arrears of rent and ejectment from the disputed premises on the ground of personal necessity and default in the Court of Munsif, Udaipur, who by his judgment dated 30-11-1966 decreed the suit for eviction having found issue No. 2 regarding personal necessity in favour of the plaintiff. The defendant went in appeal, but his appeal was dismissed by the learned Additional District Judge, Udaipur, vide his judgment dated 10th of July, 1968. The defendant then preferred the second appeal. During the pendency of the second appeal the Rajasthan Premises (Control of Rent and Eviction) (Amendment) Act, 1976, came into force and in view of the amended section 14(2) the following issue of comparative hardship was remitted for trial by this Court to the first Appellate Court vide order dated 31-3-1976:—

"Whether having regard to all the circumstances of the case including the question whether any other reasonable accommodation is available to the land-lord or the tenant, greater hardship would be caused by passing a decree than by refusing to pass it?"

4. It was further directed that the lower Appellate Court shall record additional evidence of the parties and shall return the same to this Court together with its finding thereon. The first appellate court, after recording the evidence of both the parties and after hearing them, gave its finding on the aforesaid issue to this effect that greater hardship would be caused to the defendant Chatarlal by passing a decree than by refusing to pass it. Thus the remitted issue was decided in favour of the defendant and against the plaintiff. In the second appeal, an objection was raised on behalf of the defendant-appellant that the finding on the issue remitted by this Court, is a finding of fact and is not open to challenge in the second appeal. The finding of fact is binding on this Court. This preliminary objection was heard one of us sitting in Single Bench and divergence of judicial opinion was noticed, so the above question was referred to be answered by the Larger Bench,

5. We have heard Shri N. P. Gupta, learned counsel for the defendant-appellant and Shri L.R. Mehta, learned counsel for the plaintiff-respondent.

6. The learned counsel for the defendant-appellant submitted that the issue was remitted to the lower appellate court under O. 41 rule 25, C.P.C., and the lower appellate court after recording the evidence of the parties, has returned the record together with its finding on the remitted issue. The finding so received forms part of the record in the suit under O. 41 rule 26, C.P.C. and the plaintiff-respondent has submitted memorandum of objection against the finding. He urged that the finding arrived at by the first appellate court, being a finding of fact is not open to attack in second appeal in view of sections 100 and 101 of the Code of Civil Procedure. The provisions of O. 41, C.P.C, have not been made applicable to the second appeal in their entirety by the provisions contained in O. 42, rule 1, C.P.C, but the provisions of O. 41 have been made applicable so far as may be to appeals from appellate decrees. He urged that despite the fact that the finding has been given only by one court, that as, the first appellate court on the remitted issue, that finding cannot be scrutinised and gone into by this court in view of the bar of sec. 101, C.P.C., and this appeal cannot be treated as a first appeal so far as the finding on the remitted issue is concerned. He contended that against an

Click Here to Read the rest of this document