JUDGMENT : 1. This is a tenant's second appeal against the affirming judgment and decree dated 9.2.1968, passed by the Civil Judge, Udaipur, a suit for arrears of rent and ejectment from a shop. 2. The respondents minors through their next friend their father instituted a suit for ejectment of the suit shop on the found of personal necessity. It was stated that the plaintiffs and their father are the members of the joint Hindu family and their father manages the affair of the family in the capacity of Karta. The plaintiffs purchased the shop through their father on 8.11.65 for a sum of Rs. 22,500/-. The tenant was informed of the sale. In para 6 of the plaint it was averred that the plaintiff's father and their guardian intends to start business in Nathdwara and for that the plaintiffs are badly in need of the suit shop and their father wants to carry on business in that shop. 3. The defendant denied these averments and in reply to para 6 stated that the plaintiffs are minors and they themselves are not in a position to carry on business and they do not need the shop. They do not reside in Nathdwara and do not have any business in Nathdwara. The plaintiff's father carry on business at Bombay and Koshiwara where they have shops in their possession. 4. On these pleadings the following issue was framed:- (1) Whether the plaintiffs need the suit shop and are entitled to eviction the defendant ? 5. So far the other pleadings issues are concerned it may be stated that they are not relevant for this appeal. 6. On issue No. 1 the plaintiffs examined PW 1 Khemraj, PW 2 Dulichand, PW 3 Kishan Lal, PW 4 Guljari Lal and PW 5 Nandram and in rebuttal of the plaintiffs evidence the defendant Narayan Lal examined himself as DW 1 and produced five witnesses, namely DW 2 Bhanwar Lal, DW 3 Manna Lal, DW 4 Fateh Lal, DW 5 Laxmi Lal and DW 6 Chhoga Lal. 7. After consideration of the evidence of the parties the learned Munsif, Nathdwara, found that the plaintiffs are in need of the suit shop and are entitled to seek eviction of the defendant and decide issue No. 1 in favour of the plaintiff. In appeal as well the learned Civil Judge found this issue in favour of the plaintiffs. 7. After consideration of the evidence of the parties the learned Munsif, Nathdwara, found that the plaintiffs are in need of the suit shop and are entitled to seek eviction of the defendant and decide issue No. 1 in favour of the plaintiff. In appeal as well the learned Civil Judge found this issue in favour of the plaintiffs. 8. It may also be mentioned that in this appeal on 1.3.68 and interim stay order was passed to the effect that the appellant shall not be dispossessed from the suit shop, but as the plaintiffs got the decree executed, so this ad interim stay order was vacated on 18.7.68. During the pendency of this appeal the Rajasthan Premises (Control of Rent and Eviction) (Amendment) Act, 1976 came into force and sub-section (2) to 14 was added with the result that following issue was framed:- "Whether having regard to all the 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 a decree than by refusing to pass it ?" (Onus on the plaintiff). And the said issue was referred for the trial to the lower appellate court with the direction that the lower appellate court shall recording additional evidence of the parties and shall return the evidence to this court together with its finding thereon. The lower appellate court after regarding the evidence of the aforesaid issue wherein has been found that greater hardship would be caused to the landlord plaintiffs in refusing to pass the decree and the issue was found in favour of the plaintiffs. 9. In this appeal on behalf of the defendant it has been vehemently submitted that there was no pleading of the that the plaintiffs required the shop reasonably and bond fide. The essential particulars of the requirement were not stated by the plaintiffs in the plaint and there was no issue to the effect that the plaintiffs required the suit shop reasonably and bonafide. In the absence of necessary pleadings and issue the evidence on record cannot be looked into and the two courts below have erred in holding that the plaintiffs are entitled to get the suit shop vacated from the defendant and they need the premises reasonably and bonafide. In the absence of necessary pleadings and issue the evidence on record cannot be looked into and the two courts below have erred in holding that the plaintiffs are entitled to get the suit shop vacated from the defendant and they need the premises reasonably and bonafide. With regard to the finding on issue of personal necessity it was also submitted by the learned counsel for the appellant that the plaintiffs themselves do not require the suit shop for their own occupation or use or for running their own business but they need the suit shop for their father, who may carry on his business. Father cannot be considered to be the member of the minor plaintiffs family and as such the plaintiffs have no right to sue with regard to the need of their father. He urged that the father cannot be considered to be the member the plaintiffs family for the purpose for need for occupation. 10. In support of the first contention reliance has been placed on the decision Mool Chand v. Kanwar Lal and another (1974 WLN (UC 96). As regards the second contention the learned counsel referred to the book fundamentals of Rent Control Legislation in India by R.C. Kochatta 1966 (July) Edition page 191 wherein on the basis of decision of Sushila v. Santosh Kumar (1957 MPLJ 593) : it is stated that the father cannot be held to be the member of the minor landlord's family for the purpose of need for occupation as he himself is dependent on his father. 11. The learned counsel for the plaintiffs respondents on the other hand submitted that the plaintiffs and their father constitute the joint Hindu family business and as such the plaintiffs need the premises not only for their father, but for themselves as well and further so far as the plaintiffs pleading is concerned the plaintiffs have specifically stated that they are badly in need of the suit shop for the purpose of business and it was not necessary to make mention of the words reasonably and bonafide. When the plaintiffs need the suit shop badly, it can inferred form this that the suit shop is required reasonably and bonafide. When the plaintiffs need the suit shop badly, it can inferred form this that the suit shop is required reasonably and bonafide. Moreover, he argued that both the parties had led evidence and went to trial knowing fully well that the plaintiffs averment is with regard to their personal requirement so the nature of pleading under the circumstances of the case, is of no significance and consequence. The learned counsel referred to cases in which it can be said that the pleadings were not quite satisfactory still when the parties had led evidence, the question had been examined by the Court as to the reasonably and bonafide requirements and decided the question on the basis of the evidence on record. He further submitted that the question of personal necessity is a question of fact and both the courts below have found in favour of the plaintiffs so that finding is binding and cannot be disturbed in this appeal and it is not open to the appellant to challenge the concurrent finding of the two courts below. 12. The learned counsel as to the first contention referred to Roop Narain v. Hira Lal (1963 RLW 90), Jodh Raj v. Suleman (1970 RLW 170); and Birdhi Chand v. Ram Prasad, (1970 RLW 297). For the second contention he referred to two costs of his Court Lal Chand v. Mohni Bai (1962 RLW 693) and Radhavallabh v. Damodardas (1964 RLW 587). 13. I have given my best consideration to the contentions advanced before me by both the sides. 14. At the out set I may state that question whether the suit shop is reasonably and bonafide required by the plaintiffs, is essentially one of fact and a second appeal would not lie unless is shown that the question of reasonableness or bonafide was not considered by the courts below. It is true that in this appeal this question has been raised that neither there was requisite pleading by the plaintiffs nor there was issue with regard to the ground of this provisions, but still the essence of the pleading and issue has to be considered. The word used by the plaintiffs in the plaint is that they need the suit shop 'badly'. From the use of this word 'badly' it can be said that what the plaintiffs intended to convey is that their requirement is reasonable and bonafide. The word used by the plaintiffs in the plaint is that they need the suit shop 'badly'. From the use of this word 'badly' it can be said that what the plaintiffs intended to convey is that their requirement is reasonable and bonafide. Further in issue No. 1 it also finds mention along with the plaintiffs need whether the plaintiffs are entitled to evict the defendant. Thus, the words in which the issue No. 1 is framed, it cannot be said that the requirements of Section 13(1)(h) (i) have not been put in, so I do not find that necessary pleading was not made by the plaintiffs or that proper issue was not struck. Further in Roop Narain's case it was observed that the defect in the pleading was however removed as soon as the plaintiffs came into the witnesses box and gave detailed explanation as to how the necessity had arisen, and they were cross examined on this aspect in detail. The plaintiffs witnesses were also cross examined at length. Then his Lordship Dave., J; as he then was, referred to the case of Nagubai Ammal v. B. Sharma Rao ( AIR 1956 SC 593 ) and placed reliance on the following observations of their Lordship of the Supreme Court, who took into consideration Lord Dunedin's observation in Siddik Mohammed Shah v. Mst. Saran (1930 PC 57 (1) that no amount of evidence can be looked into upon a plea which was never put forward:- "The true scope of this rule is that evidence let in on issues on which the parties actually went to trial should not be made the foundation for decision of another and different issue, which was not present to the minds of the parties and on which they had no opportunity of evidence. But the rule has no application where parties go to trial with knowledge that a particular question is in issue, though no specific issue has been framed thereon and adduce evidence relating thereto." The above principle fittingly applies to the present case as well as the parties went to trial and adduced evidence on the question as to whether the plaintiffs need the suit shop reasonably and bonafide. Thus, in my opinion, the question need no further consideration, but it would be proper that the case law cited by both the parties may further be noticed. 15. Thus, in my opinion, the question need no further consideration, but it would be proper that the case law cited by both the parties may further be noticed. 15. In Mool Chand's case (supra) cited on behalf of the appellant on the averment in the case, it was considered proper that an additional issue may be framed, so, his Lordship C.M. Lodha, J. framed the additional issue in the light of the provision contained in Section 13(1)(h)(i). It was considered that the pleadings of both the parties were not properly drafted and on considering the requirements of law additional issue was struck. The plaintiffs plea was considered to be non specific. In that case no issue was struck by the court regarding bonafide requirement of the premises and the defendant application for framing of the issue was rejected and the courts below considered that there was no specific denial regarding plaintiffs need so in these facts and circumstances of the case an additional issue was struck. It is true in this case it has been observed that there should be specific allegation regarding personal necessity fulfilling the requirement of law. But this authority is not of much help in view of what I have discussed above. 16. In Jodhraj's case (supra) the plaintiff averred that he needs the suit shop for his sons who wishes to carry on business in that shop. On this issue evidence was considered and it was found that the evidence was also discrepant and further it was observed that the averment in the plaint for personal necessity is vague and it was the duty of the plaint to have stated in specific terms that the shop in question is required by his son, who was living with him, to carry on a particular business and it was observed that it is the bounden duty of the plaintiff, who wants to get the premises vacated for his own use or for the use of his family to allege and prove that the necessity for the premises is both reasonable and bonafide and that cannot be done unless the landlord in the first instance alleges what business he propose to carry on in the shop. It was further observed that the legislature has purposely used the word reasonable and bonafide and therefore, it is the duty of the landlord in each case to prove that his personal necessity of the premises is genuine and is thus both "reasonable and bonafide". It was held that the averment in the plaint is most vague and indefinite and in the opinion of his Lordship it does not embrace within itself the necessity, which the plaintiff has tried to prove during the course of evidence. It was further observed that apart the evidence itself it is discrepant, besides being vague and indefinite. It would appear that after consideration of the evidence on record it was found that the plaintiff has failed to prove his reasonable and bonafide personal necessity. Similar is the position in the case of Birdhichan v. Ram Prasad (supra). In that case as well the plaintiff simply has stated that he wants the suit shop for his own sitting. It was not stated that he himself wants to carry on any particular business In the suit shop and it had come in evidence that there was one other shop of the plaintiff which is subsequently let out. In the facts circumstances of the case it was observed that mere assertion on the part of the landlord that the premises are required for his own use or business is not sufficient. Nature of the requirement must be disclosed so that not only the tenant may have an opportunity to rebut it, but the court may also in the light of the circumstances of each case be able to put it to the test of reasonableness and bonafide under the grab of personal requirement it is not open to the landlord to circumvent the law and it is the duty of the court to see that the landlord is not seeking eviction on the false pretense and for ulterior purpose. 17. If the evidence of both the parties is examined in the present case, it cannot be said that the plaintiffs need is not reasonable and bonafide. From the plaintiffs evidence it is well established that the plaintiffs or their father have no shop at Nathdwara. The shop was purchased by the plaintiffs father in their name for a sum of Rs. 22,500/- vide registered sale deed Ext. 1 dated 8.11.65. & the suit was instituted on 4.3.66. From the plaintiffs evidence it is well established that the plaintiffs or their father have no shop at Nathdwara. The shop was purchased by the plaintiffs father in their name for a sum of Rs. 22,500/- vide registered sale deed Ext. 1 dated 8.11.65. & the suit was instituted on 4.3.66. The plaintiffs evidence has been relied upon by both the courts below and it has come in the plaintiff evidence that Khemraj, the plaintiff's father wants to carry on business at Nathdwara. He had business of Sarafa in Bombay. The suit shop is situated in Sarafa Bazar, Nathdwara and now Khemraj wants to carry on Sarafa business and that matter has been considered by the first appellate court on remission of the case after framing of the additional issue by this Court on comparative hardship. It may be stated that fortunately in this case reasonableness and bonafide requirement can be tested as to now the shit shop has been made use of after having been vacated by the defendant. Thus, considered from any point of view that is there were concurrent findings of the two courts below regarding personal necessity of the plaintiffs, no appeal lies and even on consideration of the pleadings, issues and evidence on record. It cannot be said that the requirement of Section 13(1)(h)(i) have not been satisfied in this case. 18. Thus, I find no force in the first contention of the learned counsel for the appellant. 19. I may now take up the second contention. 20. In the second contention as well, in my opinion, there is no force in view of the nature of the pleadings and the evidence on record. It may be stated that the plaintiffs have come forward with the case that they need the suit shop for themselves as their father wants to carry on business in it and they have specifically come with this case that the plaintiffs along with their father constitute as joint Hindu family and their father in the 'Karta' their father constitute as joint Hindu family and the joint family property as karta. In the sale deed Ex 1 there is a recital that vendees, that is, the plaintiffs are minors and their father being the member of the joint family carry on business with the joint capital. In the sale deed Ex 1 there is a recital that vendees, that is, the plaintiffs are minors and their father being the member of the joint family carry on business with the joint capital. There is no doubt that the plaintiffs & their family constitute the joint Hindu family of which Khemraj is the 'karta' it is true that what is stated in the plaint is that their father will sit in the suit shop and will carry on business, but still it would be a joint family business and in this manner it cannot be said that the plaintiffs do not need the suit shop for their use of occupation. They will be in occupation of the suit shop through their father wherein the father will carry on business on behalf of the joint Hindu family. It may also be stated that it has come in the defendants evidence that some of the plaintiffs also sit in the suit shop. According to the defendant some one of the plaintiffs goes to Bombay and some one other sits in the disputed shop at Nathdwara. Thus, the use of the shop by the plaintiffs is established from the defendants evidence which has been recorded after the remission of the issue by this court. Thus from the evidence it can be found that the plaintiffs themselves need the suit shop for business. That apart, I am unable to agree with the contention of the learned counsel for the appellants that the father does not Constitute the family of the minor landlord in the book, fundamentals of Rent Control Legislation in India referred to by him, there is a reference of the decision of the Madhya Pradesh High Court but the report has not been made available to me on what reasoning what has been found cannot be considered in the absence of the report. Clause (h)(i) of Section 13 of the aforesaid Act is reproduced hereunder for facility for reference - "(h) that the premises are required reasonably and bonafide by the landlord. (i) for the use or occupation of himself or his family". 21. The contention of the learned counsel is based on the word 'his' which is underlined above. Clause (h)(i) of Section 13 of the aforesaid Act is reproduced hereunder for facility for reference - "(h) that the premises are required reasonably and bonafide by the landlord. (i) for the use or occupation of himself or his family". 21. The contention of the learned counsel is based on the word 'his' which is underlined above. According to the learned counsel the need should be of the landlord himself or his family and in the word family 'father' cannot be included, as father is not dependant on his minor son on the expression 'family' we have two decisions of our own High Court stated supra. In Lal Chand's case (supra his Lordship I.N. Modi J) considered the question in para 9 and observed as under:- "While it may be accepted, therefore, particularly having regard to the social habits and conditions and the modes of living in our own country that the intention of the legislature would be best served by putting an extensive meaning on the word 'family' as used in our Rent Control Act, it would still be a question as to how far it would properly be permissible to extend the meaning of this word and where one may have to stop. For, if the intention of the Legislature was that the expression was to include all blood relations or other relations, then there was nothing to prevent the legislature from saying so. Therefore, the word 'family' if I may say so with all respect, cannot be used to include all blood relations without any qualification whatsoever, and some sort of a limitation will have to be put on it to prevent an utterly promiscuous use being made of it. As I look at the matter, broadly speaking the word family would include a persons' wife or husband and the children; or his or her parents living with them as member of a common household; his or her brother and sisters constituting a joint Hindu family; a widowed daughter or her children, a deceased brother's wife or her children, all these being dependent on the living with him or her. But again, broadly speaking it will be hardly permissible to include other relations as falling within this phrase except perhaps under very very exceptional circumstances which for obvious reasons it is impossible to mention exhaustively. But again, broadly speaking it will be hardly permissible to include other relations as falling within this phrase except perhaps under very very exceptional circumstances which for obvious reasons it is impossible to mention exhaustively. It its ultimate analysis, therefore, whether a person is a member of the family of another is a question which must be decided having regard to the surrounding circumstance of case." 22. It was also observed that the expression family has not been defined in the Act and it does not give any guidance in interpreting this word. It was also stated that the expression family is a very elastic one, and can be interpreted sometimes in a narrow sense, which simply means the two parents and all their children, and at other times it is used in a very comprehensive sense so as to include within its meaning a body of persons descended from a common ancestor as well as those united together owing to a tie of marriage or even affection and living under one roof and forming, as it were a single household. On the facts of that case it was found that Lal Chand's widow that is the plaintiff Mohinibai's Bhojai and children and mother in law of Lal Chand's widow are not the members of Mohinibai's family. There was no evidence to effect that they ever lived together under the same roof or management. 23. In Radhavallabh's case (supra) after reviewing the English and Indian case law on fact it was found that the nephew was not the member of the landlord's family. 24. In the present case what I am called upon to examine is not this question as to whether father is the member of the family or not, as it is not in dispute that father along with the plaintiffs, is member of a family. The question of economic dependency of the alleged member on the landlord is out of question in the present case. The question to be examined by me is as to whether a minor landlord has ground available to him for eviction with regard to the requirement of his father. According to the learned counsel for the appellant this ground is not available to him as minor cannot have family of his own, so it cannot be said that he needs the premises for his family. According to the learned counsel for the appellant this ground is not available to him as minor cannot have family of his own, so it cannot be said that he needs the premises for his family. Such an interpretation of this provision, in my opinion, would not be in harmony with the intention of the Legislature. the cannot be conceived that the Legislature intended to deprive a minor landlord to sue for eviction on the ground that he needs the premises for his father. It may be stated that words his family are to be interpreted in this sense that the person's family is that family of which he is a member and in this way it can be said that who so ever may be the members of the family of which minor is a member and if the premises are needed for them then he needs the premises for his family. The expression family should be construed in a comprehensive sense. Thus, whoever constitute one house hold it can be said that is the house hold of each individual member who has constituted the same. Thus, to me it appears that the second contention is also devoid of force on both the grounds considered above, that is on facts it has been found that the plaintiffs are in need of the suit shop for themselves and also on the ground that they have got a right to sue even when the suit shop is needed for being used by their father. 25. Learned counsel for the appellant further contended that the first appellate court has erred in deciding the remitted issue against the defendant and has primarily considered the question of comparative hardship on the basis of the development which took place after vacation of the suit shop by the defendant. The learned counsel submitted that the decree itself is under challenge and the court was not competent to consider the improved position of the plaintiffs after the execution of the decree. The learned counsel urged that the question of comparative hardship should have been examined as on the date of the suit and not thereafter. The learned counsel submitted that the decree itself is under challenge and the court was not competent to consider the improved position of the plaintiffs after the execution of the decree. The learned counsel urged that the question of comparative hardship should have been examined as on the date of the suit and not thereafter. It was wrong on the part of the learned first appellate court to have considered as to how much investment has been made in business by the plaintiff's father and what outstandings are there, which would not be realised easily in case the plaintiffs are put out of the possession of the suit shop and it was also not proper on the part of the first appellate court to consider that the defendants is 75-80 years old and is not in a fit condition to carry on business. 26. In this connection it may be stated that the question of comparative hardship has to be examined in the light of all the circumstances including the question of availability of alternative accommodation by the landlord and the tenant. The respondents learned counsel in reply first submitted that the finding of this issue is also a finding of fact and is not open to challenge and in support of this contention he placed reliance on Subodh Gopal Bose v. Brojendra Kishore Roy (AIR 1954 Calcutta 90) and Iahwna Bhatta and others v. Iswara Bhatta and another (AIR 1962 Mysore 61) and he further contended that the learned first appellate court has not misdirected itself in considering all the circumstances of the case which have come on record before examining the question of comparative hardship for passing or refusing the decree, including the circumstance of alternative accommodation. 27. On a careful consideration of the respective contentions, I am of the opinion that the finding on the question of comparative hardship has been correctly arrived at after thorough scrutiny of evidence of both the parties as such it is not necessary for me to consider the question whether the finding on comparative hardship can be challenged in second appeal. It may be stated that the first appellate court had examined the question of availability of alternative accommodation. It may be stated that the first appellate court had examined the question of availability of alternative accommodation. It was found that there was no alternative accommodation available to the plaintiffs at Nathdwara, whereas from the defendant evidence it is revealed that the defendant had made use of alternative accommodation and suppressed this fact that there was any shop of himself and his brothers which according to the defendant's evidence was lying closed on account of some dispute between the brothers, it has also come in defendant evidence that the defendant's son Shankar Lal was sitting in the shop of Kesulal, his brother-in-law, where the defendant also used to sit. As considered above in this case, the test of subsequent user & subsequent position of the parties is available. Generally such a test is not available in cases where execution of eviction decrees stayed but in the preset case as parties have led evidence after eviction from the shop, in my opinion the evidence can be made use of for testing the plaintiffs requirement as well as comparative hardship can be considered on that basis. If the very provision according to which the additional issue has been framed by this court is considered then the circumstances in their entirety are to be considered before passing or refusing the decree for eviction including the circumstances of availability of accommodation. Normally, the position as obtaining at the time of the institution of the suit, has to be seen. In this case even if the question of comparative hardship is to be considered as on the date of the suit it cannot be said that greater hardship would not have been caused to the plaintiffs in refusing the decree than by passing a decree in their favour. The plaintiffs were badly in need of the suit shop for business. The business at Bombay was closed and the suit shop was purchased for running business at Nathdwara. They needed the shop for carrying on Sarafa business in Sarafa Bazar so their hardship was greater, as compared to the defendant's hardship and for determining the comparative hardship the evidence led by the parties after vacation of the suit shop can atleast be taken into consideration for testing the plaintiffs case. The requirement finds its manifestation in the business set up by the plaintiff's father investing huge funds to the tune of Rs. The requirement finds its manifestation in the business set up by the plaintiff's father investing huge funds to the tune of Rs. 70,000 to 80,000 and on that ground greater hardship will also arise as it has come in evidence that about Rs. 50,000 are outstanding, which would not be realised in case the plaintiff are ousted from their suit shop. Thus, I find no merit in the contention advanced on behalf of the appellant. 28. No other point has been pressed before me. 29. In the result, I find no force in this appeal, so it is hereby dismissed with costs.Appeal dismissed. *******