1. This is a first appeal by defendant Bank of Baroda against the decree of the Additional District Judge No. 5, Jaipur City dated August 4, 1988 decreeing the suit of the plaintiff-respondent for ejectment of the appellant from the demised premises detailed and described in para 3 read with para I of the plaint.
2. Plaintiff-respondent Nand Kishore Kachhwaha instituted Civil Original Unit No. 264 of 1980 against the appellant Bank of Baroda with the averments that plaintiffs father Nar Singh Kachawah had constructed, during his life-time, a house property on Plot No. 8-32 bearing House No. 2J-45 located on Arvind Marg, Mirsa Ismail Road, Jaipur, Nar Singh Kachawa in his life time partitioned this house property in the year 1974 between his six sons and wife as a result of which the southerneastern portion of the house, which is triangular in shape, came to the share of the plaintiff-respondent. Mr. K.C. Bakiwala, who was Regional Manager of Bank of Baroda, was a friend of Nar Singh Kachawah and he contacted with the plaintiff with a request that the Bank needed the portion of the house which had come to plaintiff's share for its use as godown and the Bank would pay rent at the rate of 94 paise per square foot in relation to the covered area. The plaintiff agreed to the proposal and consequently the defendant Bank took on rent four rooms, one store and a verandah out of the plaintiffs house on a monthly rent of Rs. 565/- with effect from July 1, 1976. The defendant had agreed to vacate these premises after two years. However on February 1, 1977 the employees or the defendant bank occupied an adjoining verandah and bath-room which were not included in the demised premises and did not vacate the rented premises even after the expiry of the period of two years. On August 11, 1978 and again on October 23, 1978, the plaintiff wrote to the defendant Bank to vacate the verandah and the bath-room and to pay its additional rent at Rs. 75/- per month. The defendant Bank vacated the Verandah and the bath-room on October 31, 1978 but it did not pay any rent to the plaintiff for the same.
3. The plaintiff alleged that since the time there was partition of the house, he was residing in the portion of the house which had fallen to the share of his mother with her permission. However, she was requiring the plaintiff to shift the house portion which had been allotted to him and as such the plaintiff required the demised premises for the use and occupation of himself and his family. The plaintiff was carrying on the trade of supplying building material but since one year before the institution of the suit, the plaintiff is suffering from pain in his spinal cord and lower back. The plaintiff is, therefore, also under an attempt to start hotel business after making some additional constructions in the ground floor and first floor of the demised premises and for this purpose as well, the plaintiff was entitled to get the premises vacated from the defendant. Accordingly on January 10, 1980, the plaintiff served upon the defendant a notice requiring the latter to vacate the demised premises and also claimed additional rent of the Verandah and bathroom which had been occupied by the defendant's employees. When the plaintiff insisted upon the defendant to vacate the premises, the defendant put forward the proposal that in case the plaintiff further renewed the tenancy for a period of three years, the defendant would vacate the same on July 1, 1983. At that time the plaintiff pointed out to the defendant that as a matter of fact covered area of 800 Sq. ft. was in occupation of the defendant and rent of the same at 94 paise per foot came to Rs. 750/-per month and not merely Rs. 565/- per month which the defendant was paying. The defendant thereupon agreed to pay rent @ 750/- per month from July 1, 1960 to June 30, 1983. The plaintiff considered that litigation for getting the house vacated might itself take three years and, therefore, he agreed with the above proposal of the defendant. The plaintiff received a letter dated July 24, 1980 in this regard from the defendant but it was not mentioned in that letter that the defendant would vacate the premises on July 1, 1983. On the other hand, the plaintiff was required to withdraw his claim for rent of the verandah and the bath-room and regarding damages in relation to the door.
4. The plaintiff further alleged that the defendant Bank had already got four or five buildings located at different places on rent with it and it can put his old records in any of these buildings. So far as the plaintiff was concerned, he had no other premises belonging to him where he could reside or carry on his trade or business. Thus the defendant would not be caused any comparative hardship in case a decree for ejectment was passed against it. Some allegations of causing damages to the demised premises by the defendant and causing nuisance were also made,
5. With these averments, the plaintiff instituted the above suit against the appellant for the recovery of Rs. 1575/- as rent of the verandah and bath-room occupied by it, for Rs. 300/- as damages to the door and for Rs. 600/- as damages to the premises and also for ejectment of the defendant from the demised premises and also rent at the rate Rs. 750/- per month from July 1980 till the vacation of the premises.
6. In its written statement filed on February 7, 1981 the defendant Bank pleaded that the plaintiff had made a request to the former to take four rooms, a verandah along with latrine and bath-room on rent. As these premises were located behind the Branch of the defendant Bank at Mirza Ismail Road, Jaipur and the Bank was in great need of the premises, it accepted to take the above-mentioned premises on rent from the plaintiff on a monthly rent of Rs. 565/-. The Bank denied that the duration of the tenancy was agreed to be two years. The latrine and bathroom were stated to be included in the demised premises. The employees of the Bank had placed record in the bath room of the Bank which was shifted from the bath room keeping in view the convenience of the bank as well as the plaintiff. According to the Bank, the plaintiff repeatedly insisted upon the defendant to increase the amount of monthly rent. Ultimately the defendant agreed to increase the rent to Rs. 750/- per month provided the plaintiff would get a proper lease deed in that regard registered. However, the plaintiff wanted not only to increase the rent without getting a lease deed registered but was really desirous to increase the rent even beyond the amount of Rs. 750/ - per month. It was denied that the plaintiff required the demised premises for the use and occupation of himself or for starting a hotel business. The place is neither a fit place for a hotel business nor the plaintiff has financial capability to start a hotel business and nor he has taken any preliminary steps in that direction. The allegations regarding causing damage or nuisance by the defendant Bank were denied. It was also pleaded that the defendant Bank had taken the suit premises on rent for commercial purposes with effect from July 1, 1976 and the plaintiff had no legal right to get the suit premises vacated before the expiry of five years. The defendant also pleaded that comparative hardship to it would be greater in case a decree for ejectment was passed in favour of the plaintiff.
7. Issues in the suit were framed on May 19, 1981 and following additional issue No. 7 was framed on July 22, 1981.
'7. Whether the plaintiff, on account of the provisions contained in Section 14(3) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950, is not entitled to get the suit premises vacated in the present suit?'
8. Arguments were heard by the trial court on above issue No. 7 as preliminary issue and it was decided on September 7, 1981 as against the plaintiff. The trial court held that in respect of premises let out for commercial purposes, no suit for ejectment on ground of reasonable and bona fide requirement of the demised premises can lie before the expiry of a period of five years from the date the premises were let out. Thereafter on May 10, 1982, the plaintiff moved an application for amendment of the plaint. In this amendment application, the plaintiff mentioned that the defendant Bank had raised an objection that suit for ejectment from premises let out for commercial purposes was not maintainable before the expiry of five years. It was said that the period of five years had expired and new suit for ejectment could be instituted for ejectment on ground of personal need of the premises. He therefore, sought permission to amend paras Nos. 6 and 7 of the plaint by substituting these paras by the very same contents as they were contained when the suit was instituted on August 30, 1980. Besides that some additional paras 8(Ka) and 8(Kha) were sought to be added by including material alterations in the demised premises having been made by the defendant as an additional ground of ejectment and further a plea that during the pendency of the suit, the defendant Bank had taken some premises on rent opposite Indian Post and Telegraph Department Hospital near New Colony and as such the defendant would not face any hardship in case a decree for ejectment was passed against it. The trial court by its order dated July 26, 1982 allowed the amendments sought by the plaintiff in the plaint and the amended plaint was filed on August 9, 1982 to which the defendant filed written statement on September 7, 1982. After trial, the Additional District Judge No. 5, Jaipur City, by his judgment and decree dated August 4, 1988 decreed the suit of the plaintiff for ejectment of the defendant appellant from the demised premises. The defendant has come up in appeal before this Court.
9. The trial court held that the plaintiff reasonably and bona fide requires the suit premises for the use and occupation of himself and his family members because he does neither own any other house for residential purposes nor for commercial purposes. Question of comparative hardship was also decided in favour of the plaintiff and partial eviction was held to be impracticable. In relation to issue No. 3, it was held that from the evidence it was not established that any rent was fixed or settled between the parties with respect to bath room and verandah. Damages to door or any part of the premises was held not to be proved. Under issue No. 5 it was found that no settlement for increase of rent was arrived at between the parties and, therefore, the plaintiff was held not to be entitled to rent at Rs. 750/- with effect from July, 1980. Issue relating to causing of nuisance was decided against the plaintiff under issue No. 7 it was held that by fixing of racks, there was no material alteration in the demised premises. Ultimately, the suit of the plaintiff for ejectment of the defendant from the demised premises was decreed on the ground that the plaintiff reasonably and bona fide required the premises for the use and occupation of himself and his family members and also for commercial purposes. The defendant has come up in first appeal before this Court.
10. The plaintiff-respondent filed Cross-objection on October 31, 1988 with respect to his claim for Rs. 1875/- in respect of rent of Verandah and bath-room and damages, the rate of rent and for decreeing of his suit for ejectment also on the ground of causing of nuisance in the suit premises by the defendant.
11. As has already been stated, the trial court has framed an additional issue No. 7 pertaining to the bar of the suit under Section 14(3) of the Rajasthan Premises (Control of Rent and Eviction) Act 1950 (hereinafter referred to as 'the Act'). That issue had been decided as preliminary issue by the trial court on September 7, 1981 as against the plaintiff. Subsequent to that, the plaintiff made an application under Order 6 Rule 17, CPC for amendment of the plaint and the amendments sought in the plaint were allowed by the trial court on July 26, 1982. It is true that by means of this amendment application, apart from insertion of new paras 8(ka) and 8(kha) in the plaint, the plaintiff sought to substitute the previous paras 6 and 7 of the plaint more or less in the same language as they had existed in the original plaint. It appears that this formal substitution of paras 6 & 7 of the plaint in that very state by an amendment application moved on May 10, 1982 was to remove the statutory bar against eviction of the defendant-appellant from the suit premises, which were let out for commercial purposes, created by Section 14(3) of the Act which provides that '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 of the Act before the expiry of 5 years from the date the premises were let-out to the tenant. This Sub-section (3) in Section 14 was inserted by Amending Ordinance No. 26 of 1975 w.e.f. September 20, 1975 and which Ordinance was replaced by Rajasthan Act No. 14 of 1976. The amendment was allowed by the trial court.
12. It may here be mentioned that in it's ground of appeal, the defendant-tenant has not challenged the allowing of the above amendment by the trial court. The tenant has also not taken any ground in his memorandum of appeal that as a matter of fact, there was no amendment in paras 6 & 7 of the plaint in as much as the very language was sought to be substituted in these paras which already existed in the original plaint and therefore, the bar created under Section 14(3) of the Act still applied or that the formal amendment got made by the plaintiff in paras 6 & 7 of the plaint related back to the date of the suit and as the suit was instituted before the expiry of 5 years from the date the premises were let-out to the defendant-appellant, the same was not maintainable. It may further be mentioned that even in the written statement filed to the amended plaint, the defendant did not raise any objection that despite amendment having been allowed, the suit did not lie on account of the bar created by Section 14(3) of the Act. I am, therefore, not called upon to decide this matter which was neither raised before the trial court after the plaint was amended nor which formed part of any issue framed on November 2, 1982 after the plaint was amended.
13. The ordinary rule is that the rights of parties must be determined as at the date of the action, and not on the basis of right which accrued to them after the institution of the suit. Ordinarily the plaintiff is not allowed to take advantage of a cause of action arising subsequent to the suit and claim relief on that basis. But where it is shown that it is necessary to have the decision of the court on altered circumstances in order to shorten limitation or to do complete justice between the parties, the court can depart from the general rule and mould the relief on the basis of the altered circumstances. The court hearing a suit or an appeal can taken into account the events which arise subsequent to the filing of the suit in order to give appropriate relief and more so when no prejudice is caused to the adversary. In the present case, no prejudice is caused to the defendant-appellant for the simple reason that although in the original written statement filed on February 7, 1981, the appellant had raised an objection that the suit was not maintainable before 5 years of the commencement of the tenancy, but in the written statements filed to the amended plaint on September 7, 1982, it did not raise any such plea and for that reason no issue was framed regarding that. The defendant went to trial with full knowledge of the ground of eviction alleged by the plaintiff by re-asserting the ground of personal necessity by making a formal amendment in the plaint after the expiry of the period 5 years and after the decision of original issue No. 7 against him. It would be useful to quote Krishna Ayer, J. in Pasupuleti Venkateswarlu v. The Motor and General Traders reported in AIR 1975 SC 1409 (para 4): --
'It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suit or institutes the legal proceedings. Equally clear is the principle that procedure is the hand-maid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fairplay is violated, with a view to promote substantial justice subject, of course, to the absence of other disentiling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial Court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule and myriad. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the court can, and in many cases must, take cautious cognizance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed'.
14. It was contended by the learned counsel for the appellant that the plaintiff has failed to establish that he required the suit premises reasonably and bonafide for the use and occupation of himself or for starting a hotel business. It was contended that in the notice which has been served by the plaintiff, he had not mentioned that his mother required him to shift to his own house. The mother was not produced by the plaintiff. It was also urged that the plaintiff was unmarried and had no family and therefore, there was no question of any quarrel between him and his mother. According to the learned counsel, the real motive of the plaintiff was to let-out the premises on an increased rent. The plaintiff had even agreed to extend the duration of tenancy of the appellant upto June 30, 1983, in case the appellant increased the rent amount from Rs. 565/- to Rs. 750/- per month. It was further argued that the plaintiff does not need the premises to start a hotel business. The learned counsel for the plaintiff respondent, on the other hand, has supported the findings of the trial court on issues Nos. 1 & 2.
15. It was plaintiffs father Narsingh Kachhwaha who had constructed a house situated at Arvind Marg, Mirza Ismail Road, Jaipur. Narsingh Kachawah had 6 sons and a wife. According to the plaintiff, Narsingh Kachhwaha divided the house property between his sons and wife during his lifetime. In the plaintiff's share, the premises which have been surrounded by red ink line in the plan Exhibit-1, came as a result of the division. It appears from Exhibit-21 that the Manager, Bank of Baroda, M.I. Road Branch, Jaipur had approached the plaintiff to take the suit premises on rent for a period of two years. The amount of rent was to be calculated @95 ps. per Sq. ft. per month of the covered area. It was mentioned that the covered area was approximately 600 sq. ft. (excluding latrine, bathroom and verandah estimated) and Rs. 565/- per month was to be paid as rent. A specification of the covered area is also mentioned in Exhibit 21. By letter dated July 1, 1976, the agent of the Bank confirmed to the plaintiff of his decision to take on rent the demised premises on monthly rent of Rs. 565/- for a period of two years with effect from 1st July, 1976. The plaintiff had served a notice on January 10, 1980 upon the defendant requiring the latter to vacate the premises. In this notice, the plaintiff had mentioned that he was not maintaining good health and was not fit to engage himself in any Government or non-governmental employment. He stated that he intended to start a hotel business in the suit premises after obtaining governmental and other institutional financial aid to start the hotel business and, therefore, he required the suit premises to be vacated by the defendant. The sit was instituted by him on August 30, 1980. The plaintiff has pleaded in para 9 of the plaint that when he insisted upon the defendant Bank to vacate the demised premises, the Bank came forward with a proposal that in case the plaintiff extended the tenancy period up to June 30, 1983, the Bank would vacate it on July 1, 1983. During that negotiation, the plaintiff pointed out to the officials of the defendant bank that the covered area of the demised premises was actually 800 Sq. ft. and the rent @ 94 ps per sq. ft. comes to Rs. 750/- and that it was only under a mistake that rent was being paid by the defendant Rs. 565/- per month. It is further mentioned that the defendant bank agreed to pay rent Rs. 750/ per month during the period from 1st July, 1980 to 30th June, 1983. The plaintiff accepted this proposal of the defendant bank for the reason that even if he filed a suit for ejectment, it would have taken a period of not less than 3 years in getting the house vacated. However, the defendant sent a letter on July 24, 1980 wherein the bank did not mention that it would vacate the premises on 1st July, 1983 but asked the plaintiff to withdraw his claim for rent in respect of the bathroom and verandah. On account of this letter, the plaintiff lost confidence in the bank and filed this suit. Exhibit 14 is the letter which had been addressed by the Senior Manager, Bank of Baroda to the plaintiff. In Exhibit-14 it was mentioned by the Senior Manager in furtherance of the discussion held on July 3, 1980 that the bank was agreeable to pay Rs. 750/- of rent on certain conditions. The conditions were that the rent of Rs. 750/-per month would be inclusive and would be effective from 1st July 1980. The increased rent would be paid to the plaintiff after execution of a lease-dead for 3 years effective from July 1, 1980. The plaintiff was also required to withdraw the legal notice served upon the defendant and his all other prior claims. The plaintiff was required to convey acceptance of these terms. It appears that the plantiff did not convey acceptance to the terms mentioned by the defendant bank in Exhibit-14 and filed the present suit.
16. The plaintiff admittedly is unmarried and he was living in the portion of the house property which had been allotted as a result of partition to his mother since last 20 years. According to the plaintiff, 3 rooms came to the share of his mother. He was living in one room. In the other room, his another brother was living who was insane according to the plaintiff, his mother started telling him from the year 1978-79 that the plaintiff should shift to the portion of the house which had been allotted to him as a result of the partition. The plaintiff has also said that he is unemployed since the year 1978-79. Prior to that he was engaged in the business of supplying building material. However, he left that trade as he had developed back-ache. Since then, the plaintiff had no other source of income except rental income derived from the suit premises. He has said that he intend to start a hotel business in the demised premise. There are already two hotels known as 'Hotel Imperial' and, 'Jagmahal Hotel' near the demised premises. In rebuttal the defendant has examined B.L. Gupta, D.W. 1. He has deposed that according to his idea, the plaintiff should not need the demised premises. The plaintiff used to ask for increased rent or else that the defendant should vacate. The defendant had agreed to increase the rent but the plaintiff did not execute the lease-deed. B.L. Gupta does not know if the plaintiff was unemployed. Thus the stand taken by the defendant bank is that the intention of the plaintiff was to only increase the rent,
17. It would appear from the above evidence oral as well as documentary that the plaintiff had not mentioned in the notice Exhibit 10 which he had served upon the defendant on January 10, 1980 that his mother was asking him to shift to the demised premises on account of any quarrel between the mother and the son. The plaintiff was admittedly unmarried and does not have any family. Only three members reside in the portion of the house property which came to the share of the mother. They were, the mother, the plaintiff and younger brother of the plaintiff. The only fact mentioned is the notice Exhibit 10 was that the plaintiff did not keep good health and was not capable of being got himself employed in any governmental or non-governmental service. The only way before him was to start some business. He wanted to start a hotel business in the demised premise after obtaining Governmental or other institutional financial aid. It is true that the plaintiff is living with his mother in one of the rooms allotted to the mother by partition and it is also true that the plaintiff is unemployed since the year 1978-79. However, it is equally true that the plaintiff has totally failed to establish that there was any quarrel between the mother and the son and the mother had asked to plaintiff to shift his own portion. Regarding this, I have already mentioned that it was never the case of the plaintiff before filing of the suit in his own notice Exhibit 10 dated January 10, 1980. The entire case of the plaintiff was that he intended to start a hotel business. On the one hand, the plaintiff mentioned in the notice Exhibit 10 that he did not maintain good health and was incompetent to get himself employed in any governmental or non-governmental agency and, on the other hand, he shows his capacity to start a hotel business without any funds with him. Regarding funds, he has stated in Exhibit 10 that he will have to obtain financial aid from government or other financial institutions. There is nothing to show that the plaintiff even took a single step in that direction. On the other hand, according to the plaintiffs own assertion in para 9 of the plaint, there were discussions with the defendant in the years 1980 for increase of the rent. The result of the discussion is summarised in the letter Exhibit 14 dated July 24, 1980 which had been addressed by the Senior Manager of the defendant bank to the plaintiff. Exhibit 14 would go to show that the defendant bank had agreed to pay rent at the increased rate @ Rs. 750/-per month with effect from 1st July, 1980. However, the bank had imposed two conditions upon the plaintiff, namely, to execute a lease deed for a period of three years and to withdraw the notice dated January 1, 1980 and all other claims. According to the averments contained in para 9 of the plaint, the plaintiff had agreed to grant as extension of lease up to 30th June, 1983. However, he has explained that he agreed to this, because a suit for ejectment would have taken a very period of three years. This is a lame explanation. On the one hand, the plaintiff has asserted that the relations between the mother and the son had become strained and the mother was insisting upon the son to shift to his own portion of the house since the year 1978-79 and further that he was unemployed from that very year and wanted to start a hotel business, but, on the other hand, he was ready to extend the tenancy of the defendant for 3 more years up to 30th June, 1983. This conduct of the defendant was entirely inconsistent and incompatible with the alleged case of reasonable and bona fide need of the suit premise for his own use and occupation and for starting a hotel business. The negotiations regarding payment of increased rent could not take a final shape because the plaintiff did not convey his acceptance to the execution of lease-deed in favour of the bank for three years effective from 1st July 1980 and to withdraw the prior claims. The plaintiff has taken a false stand that the rent was agreed to be increased because there was a mistake in the inclusion of the covered area of the demised premises. It was in plaintiff's own documents Exhibit 21 that the covered area was worked out as 607.1 Sq. ft. and it has not been established that the covered area calculated in Exhibit 1 on June 23, 1976 i.e. before the suit premises were taken on rent by the defendant bank by its letter Exhibit 12 was incorrect. The plaintiff having bad health and incompetent to even get himself employed in a job and with no finance, cannot be expected to start a hotel business. His sole maintenance is rental income and his sole intention is to get the rent increased from the bank. The defendant bank had even agreed to increase the rent from Rs. 565/- per month to Rs. 750/- per month, but the plaintiff did not choose to bind himself by executing a lease-deed in favour of the Bank for three years certain. He came forward with a false case that it was on account of the mistake in the calculation of the covered area that the rent was agreed to be increased. There is no satisfactory explanation for the plaintiff agreeing to extend lease for three years if in fact he needed reasonable and bona fide the demised premises for his own business or for starting a hotel. In my opinion, the trial court has totally misappreciated the evidence adduced in the case both oral and documentary and assigned no valid and cogent reasons for deciding issue No. 1 in favour of the plaintiff. The trial court contended himself by stating that from the mere fact that there was a desire to charge increased rent, it cannot be inferred that the plaintiff did not require the demised premises reasonably and bona fide for his own use and for starting business.
18. Learned counsel for the plaintiff respondent referred to me the decisions reported in 1974 (1) Ren CR 170: (AIR 1974 SC 818). 1984(1) Ren CR 48 (Bom), 1986 (Suppl.)Ren CR 223 (Kant), 1986 (1) Ren CJ 264 (J.& K), 1980 (2) Ren CR 147 (Madh Pra), 1985 (1) Ren CR 245 (Delhi), 1984 (2) Ren CR 225 (Bom), 1984 (2) Ren CR 244 : (AIR 1985 NOC 113 (P & H), 1988 (2) Ren CJ 7 (Cal), 1988 (2) Ren CR 363 (Delhi) and 1987 (2) Ren CR 580 (SC). It may be stated the every ruling applies to its own facts and circumstances and must be viewed in that light.
19. As has already been stated, the plaintiff is alone. He is unmarried and has not family. He has been living with his mother for the last more than 20 years before the institution of the suit. His mother is widow. She has sufficient accommodation to keep her son without any family attached to him. There is no quarrel between the son and the mother. The plaintiff has not been keeping good health and according to his own admission he is incompetent to do any job. The rental income is the only source of his earning. Such a person cannot be expected reasonably to enter into the venture of running a hotel when no finances are with him and especially when it is established beyond doubt that the plaintiff was more interested in getting the rent increased from the defendant than anything else. I, therefore, reverse the finding of the trial court on issue No. 1.
20. The Branch office of the defendant Bank is situated at Mirza Ismail Road, Jaipur. The suit premises are located near the Branch office of the defendant Bank. Defendant Bank would suffer comparatively grater hardship if it's old records are shifted to a distant place than the place where it's Branch office is situated. Issue No. 2 is also, therefore, decided against the plaintiff.
21. I shall next deal with the cross-objections filed by the plaintiff. According to the plaintiff, on February 1, 1977, the employees of the defendant Bank had utilised the bathroom and verandah in front of it for keeping old records of the Bank although the same was not included in the tenancy of the Bank. It may be mentioned in this connection that the plaintiff had served a notices Ex. 22 and Exhibit 23 in this respect upon the defendant. The defendant bank had sent a reply Exhibit 13 to the plaintiff. In this reply, the defendant bank mentioned that the bathroom and verandah had been vacated by the bank on October 31, 1978. It was further mentioned that the matter regarding rent and compensation in respect of occupation of bathroom and verandah was under consideration with the higher authorities of the bank. Exhibit 12 would go to show that the latrine and bathroom were not included in the demised premises. One of the verandahs adjoining the three rooms was included in the tenancy as shown in the Site Plan Exhibit 16. The covered area of this verandah has been calculated in Exhibit 21. The covered area of verandah adjacent to the three rooms was 176.6 Sq. ft. This verandah measuring 176.6 Sq. ft. was included in the tenancy of the defendant bank. However, there is a verandah just adjoining the bathroom and the latrine as it would appear from the site plan Exhibit 16. It was this verandah adjoining the latrine and bathroom and the bathroom which had been occupied by the defendant Bank illegally. The plaintiff was, therefore, entitled to recover damages for illegal use and occupation of the bathroom and the verandah adjoining it in respect of the period from 1st February, 1977 till October 31, 1978 when it was vacated. Damages @ Rs. 75/- per month is allowed. The amount comes to Rs. 1575/-. So far as the damages to the doors are concerned, the same has not been established. I, therefore, hold that the plaintiff was entitled to recover Rs. 1575/- as damages for illegal use and occupation of the bathroom and verandah adjoining it an reverse the finding of the trial court on issue No. 3 accordingly.
22. I have already stated that the plaintiff has failed to establish that the covered area of the demised premises were wrongly calculated when the premises were originally let out. The plaintiff's own letter Exhibit 21 goes to show that the covered area was 607.1 Sq. ft. and the rent therefore, was rightly calculated at Rs. 565/- per month. It has not been established by the plaintiff that the covered area was 800 Sq. ft. and that he was entitled to get the rent calculated on 800 Sq. ft. @94 ps per Sq. ft.
23. The premises were let out to the defendant bank for godown purposes and to be used by it for keeping it's old record. Merely because the defendant bank kept some goods near the staircase, it cannot be said that it had caused nuisance to the premises. It has also not been established that the defendant made any material alterations in the demised premises or caused any damages to it. The cross-objections only deserve to be partly allowed. The plaintiff is held to be entitled to a decree for Rs. 1575/-against the defendant bank in respect of damages for illegal use and occupation of the bathroom and verandah during the period from February 1, 1977 to October 31, 1978. So far as the appeal filed by the defendant bank is concerned, it deserves to be allowed and the suit of the plaintiff for ejectment of the defendant bank from demised premises deserves to be dismissed.
24. I, therefore, allow this first appeal and set aside the decree passed by the Additional District Judge No. 5, Jaipur Civil, Jaipur on August 4, 1988 decreeing the suit of the plaintiff respondent for ejectment of the defendant appellant from the premises mentioned in para 3 read with para 1 of the plaint and dismiss the suit of the plaintiff for ejectment of the defendant bank from the suit premises. I partly allow the cross-objection filed by the plaintiff and decree his suit for Rs. 1575/- against the defendant for damages in respect of illegal use and occupation by the defendant of the bathroom and the verandah adjacent to it during the period from Feb. 1, 1977 to October 31, 1978. In the circumstances of the case, I shall leave the parties to bear their own costs of the appeal and the cross-objections. Decree be prepared accordingly.