JUDGMENT 1. - This appeal has been filed by the plaintiff-appellant (landlord) against the appellant order dated November 15, 1982 of the Additional Civil Judge, Jodpur passed in Civil Appeal No. 21 of 1982, by which he accepted the appeal and remanded the case to the trial Court after framing an additional for fresh decision. 2. The plaintiff-appellant filed a suit against the respondent (tenant) in respect of a shop on March 13, 1978 for arrears of rent and ejectment. The ejectment was sought on the grounds of default and reasonable and bone fide necessity. The suit was contested by the defendants on various grounds by filing a written statement on September 4, 1978. While denying the allegations made by the plaintiff in the plaint other pleas were also raised. The learned Munsif framed as many as 11 issues inclusive of the relief. The plaintiff examined P.W. 1 Radha Kishan, P.W. 2. Sunil Behari, P.W. 3. Jethmal. P.W. 4. Som Dutt and P.W. 5. Kedardass. In rebuttal, the defendant examined himself as D.W. 1, D.W. 2. Daulat Singh, D.W. 3. Jethanand, and D.W. 4 Kanhaiyalal. Documentary evidence of the parties were also exhibited and proved. The Learned Munsif, by his judgment dated August 1, 1980, recorded the following findings : (1) That the defendant had executed the 'Kabulist' dated September 25, 1964 in favour of the plaintiff; (2) That the plaintiff requires the shop reasonably and bonafide for himself and his family for business : (3) That the plaintiff will be put to greater hardship than the defendant if the decree for ejectment is not passed in favour of the plaintiff and against the defendant; (4) That the defendant had tendered the rent to the plaintiff from March 1, 1977 in time whereby deciding issue No. 4 in favour of the defendant and against the plaintiff : (5) That the plaintiff has failed to establish that the defendant did not get the whitewash done yearly as per agreement whereby deciding issue No. 5 in favour of the plaintiff as against the defendant. (6) That the defendant is entitled to Rs. 1875/- and Rs. 99/- on account of rent and damages for use and occupation and interest respectively. (7) that the plaintiff is not entitled to damages for use and occupation @ Rs. (6) That the defendant is entitled to Rs. 1875/- and Rs. 99/- on account of rent and damages for use and occupation and interest respectively. (7) that the plaintiff is not entitled to damages for use and occupation @ Rs. 400/- per month from the date of the suit; (8) that the plaintiff is not entitled to the amount of 328/- as house tax from the defendant; (9) that there is no misjoinder of parties; and (10) that the defendant is not entitled to any compensatory costs. In view of the aforesaid findings, the learned Munsif decreed the suit of the plaintiff for ejectment and against the defendant in respect of the shop described in para 1 of the plaint. He ordered that the plaintiff will be entitled to withdraw the deposited amount and further that the plaintiff will get Rs. 158/- P.M. in lieu of rent. 2. An appeal was filed by the defendant against the judgment and decree dated August 1, 1980 of the Munsif City, Jodhpur, which was transferred to Additional Civil Judge, Jodhpur accepted the appeal and remanded the case to the Munsif City, after framing the following issue:-Whether in the circumstances of the case, a decree for eviction should be ordered in respect of the entire holding or eviction from part of the premises would be sufficient ? The learned Additional Civil Judge directed the learned Munsif to decide The suit afresh after taking evidence of the parties on the above mention issue. The judgment was rendered on November 9, 1982. Being dissatisfied with the appellate judgment and order of remand, the plaintiff-appellant has filed this appeal under Order 43, rule l(u), C.P.C. 3. When the appeal came up for admission on December 22, 1982, show cause notice was ordered to be issued. Thereafter on Feb. 2, 1983, in the presence of the learned counsel for the parties, the Court mentioned that as there is a very short question, about the validity of the remand order, is involved in this appeal, it be listed for admission on February 21, 1983 and that the appeal itself shall be disposed of on that day. Thereafter on Feb. 2, 1983, in the presence of the learned counsel for the parties, the Court mentioned that as there is a very short question, about the validity of the remand order, is involved in this appeal, it be listed for admission on February 21, 1983 and that the appeal itself shall be disposed of on that day. On March 1, 1983, learned counsel for the parties stated that they went to seek instructions about the dimensions of the shop, as the arguments have been advanced by the learned counsel for the appellant that in a case of single shop, the question of partial eviction does not arise. On March 15, 1983, learned counsel for the parties submitted that an application for grant of leave to amend the Written statement was filed and was under consideration in the trial Court. The hearing of the appeal was deferred. On April 12, 1983, learned Counsel for the parties stated that the application for amendment of the Written statement has been dismissed by the trial Court . Learned Counsel for the appellant prayed for time for filing revision against the order dismissing the application for amendment of the written statement. This Court declined to grant time. 4. I heard the arguments of the learned counsel for the parties on April 13, 1983 as ordered on February 2, 1983. 5. The appeal is disposed of finally at the admission stage. 6. Learned counsel for the appellant submitted the learned Additional Civil Judge committed an error when he remanded the whole case to the learned Munsif City, Jodhpur for fresh decision after framing the above-mentioned issue, as he should have only remitted the issue framed by him for recording evidence and finding therein to the Munsif. I have examined the judgment of the learned Additional Civil Judge. It appears that the learned counsel for the defendant-tenant (appellant before the Additional Civil Judge), had raised only one point before the learned Additional Civil Judge relating to the compliance of the second para of Section 14(2) of the Rajasthan Premises (Control of Rent and Eviction) Act (No. XVII of 1950) (herein referred to as 'the Act'). Learned Counsel for the respondent however disputes this and submits that he had challenged all the findings recorded by the learned Munsif in his judgment dated August 1, 1980 inclusive of reasonable and bonafide necessity and comparative hardship. Learned Counsel for the respondent however disputes this and submits that he had challenged all the findings recorded by the learned Munsif in his judgment dated August 1, 1980 inclusive of reasonable and bonafide necessity and comparative hardship. In this connection he referred to the memo of appeal filed against the judgment of the learned Munsif dated August 1, 1980. 7. Learned Additional Civil Judge, while agreeing with the contention raised by the learned Counsel for the dependent - tenant (appellant before the learned Addl. Civil Judge), framed the issue relating to the subject-matter of second para of Section 14(2) of the Act and accepted the appeal in part and directed the learned Munsif to decide the suit after recording evidence of the parties. The learned Munsif, by his judgment dated August 1, 1980 has decided all the issues framed by him and decreed the suit for ejectment. 8. Order 41 Rule 23A CPC provides for remand in other cases. According to it, where the Court has disposed of the case otherwise than on a preliminary point and the decree is reversed in appeal and the appellate Court thinks re-trial necessary, then, it has the same powers as it has under Rule 23. 8. Order 41 Rule 23A CPC provides for remand in other cases. According to it, where the Court has disposed of the case otherwise than on a preliminary point and the decree is reversed in appeal and the appellate Court thinks re-trial necessary, then, it has the same powers as it has under Rule 23. A persual of the appellate judgment of the learned Additional Civil Judge shows that he has not reversed the findings of the issue arrived at by the learned Munsif and has merely reversed the decree for want of non-compliance of second para of Section 14(2) of the Act, He has not even stated the reasons as to why he thought re-trial of the whole suit necessary.Order 41, Rule 25 C.P.C. reads as under:- "R. 25 Where appellate Court may frame issues and refer them for trial to Court whose decree appealed find : Where the Court from whose decree the issue appeal is preferred has omitted to frame or try any issue or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, whose decree the appeal is referred and in such case direct such Court to take the additional evidence required;and such Court shall proceed to try such issues and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefore, within such time as may be fixed by the Appellate Court or extended by it form time to time."It is clear that the learned Munsif has omitted to frame or try issue covering the subject-matter of second para of Section 14(2) of the Act which is mandatory and, therefore, he (Addl. Civil Judge) should have only framed an issue covering the subject-matter of second para of Section 14(2) of the Act and refer the same for trial to the Munsif, from whose decree the appeal was preferred. He should have followed the procedure provided in Order 41 Rule 25 and Order 41 Rule 26 C.P.C.O.XLI, r. 26 C.P.C. is as follows:- "26 - Finding and evidence to be put out on record. He should have followed the procedure provided in Order 41 Rule 25 and Order 41 Rule 26 C.P.C.O.XLI, r. 26 C.P.C. is as follows:- "26 - Finding and evidence to be put out on record. Objection to finding:- (1) Such evidence and findings shall form part of the record in the suit; and either party may, within a time to be fixed by the appellate Court, present a memorandum of objections to any finding. Determination of appeal : (2) After the expiration of the period so fixed for presenting such memorandum the Appellate Court shall proceed to determine the appeal." 9. It is, thus clear that the learned Additional Civil Judge should not have remanded the whole case for re-trial to the learned Munsif. He should have asked the Munsif to record evidence on the issue framed by him and to record finding thereon and the reasons therefore within the time to be fixed by him or extended by him from time to time. 10. For the reasons aforesaid, the order of remand is illegal and it cannot be sustained. 11. It was next, argued by the learned Counsel for the appellant that the premises in question is one shop and as such the point of partial ejectment does not arise. 12. Second para of the Section 14(2) of the Act reads as under:- "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 apart of the premises the Court shall pass the decree in respect of such part only." No finding has been recorded as contemplated in the second para of Section 14(2) of the Act. That is mandatory 13. It was held in Rahman v. Ramchand, AIR 1978 Supreme Court 423 as under:- "The only ground which we consider tenable and which has been urged by the appellant before we turn on the full failure of the Court s of facts in recording a finding as contemplated in the proviso to Explanation to Section 11(1)(h) of the Act. Obviously an error has been committed by the High Court in thinking that there is a concurrent finding of fact under the proviso aforesaid. Obviously an error has been committed by the High Court in thinking that there is a concurrent finding of fact under the proviso aforesaid. The trial Court and the first appellate Court have really not considered this question on the merits; indeed evidence itself has not been taken on the scores that there has been no specific plea in that behalf. We are satisfied that the proviso aforesaid mandates the Court to consider whether partial eviction as contemplated therein should be ordered or the entire holding should be directed to be evicted. This aspect, therefore, requires judicial exploration after giving opportunity to both sides to lead evidence in this appeal behalf." 14. This decision was referred to in Arun Kumar v. Mohammed Basir Ahmed, AIR 1981 Patna 230 , and the learned Judge in that case accepted the argument pertaining to the partial eviction and remanded the case. 15. This Court in Bhawani Singh v. Achalsingh (S.B. Civil Second Appeal No. 127 of 1981 , decided on August 26, 1981) and many other cases, remanded the cases (appeals) on the limited question to the first appellate Court. it is necessary that before a decree for ejectment is passed, finding is recorded as contemplated in the second para of Section 14(2) of the Act after giving an opportunity to both the parties to lead evidence on the question of partial eviction. In these circumstances, the contention of the learned Counsel for the appellant that as premises in suit is a shop, the question of partial eviction does not arise, cannot be accepted. The finding on the question that no hardship would be caused either to the tenant or to the landlord, in respect of the part of the premises, is necessary before decreeing the suit for ejectment. In view of the authoritative pronouncement of their Lordships of the Supreme Court in Rehman's Case (supra), the decree passed by the learned Munsif for ejectment could not be sustained. 16. No other point was pressed for my consideration in this appeal. 17. In view of the authoritative pronouncement of their Lordships of the Supreme Court in Rehman's Case (supra), the decree passed by the learned Munsif for ejectment could not be sustained. 16. No other point was pressed for my consideration in this appeal. 17. As I have come to the conclusion that the learned Additional Civil Judge should not have remanded the whole case to the learned Munsif (trial Court ) for fresh decision, after framing the issue relating to the compliance of the second para of Section 14(2) of the Act, I accept the appeal and set aside the appellate judgment dated November 19, 1982 of the learned Additional Civil Judge. The learned Additional Civil Judge is directed to re-admit the appeal to its original number and dispose of it in accordance with law after giving an opportunity of hearing to both the parties, keeping in view the observation made herein above that the principles laid down in the decisions referred above. 18. This order will, however, not preclude the learned Additional Civil Judge from adopting the procedure as provided in Order 41, Rule 25 and Order 41, Rule 26 C.P.C. will also take into consideration the points that may be pressed by the learned Counsel for the parties assailing the findings of the learned Munsif and thereafter to decide the appeal afresh in the light of the conclusions that may be reached by him. In the circumstances of the case, I make no order as to costs.Order accordingly. *******