TATIA, J. - (1.) THIS is tenant's appeal against the judgment and decree dated 31. 7. 1999 passed by the learned Additional District Judge No. 1, Udaipur in Civil Original Suit No. 273/97 which the trial court decreed the suit for eviction of the plaintiff against the defendant-tenant on the ground of bonafide necessity of the plaintiff and rejected the plea of change of user of the premises as alleged by the plaintiff against the defendant. The trial Court also held that the defendant-tenant committed default in payment of rent as the rent from 4. 8. 1996 to 9. y. 1997 were not paid to the plaintiff by the defendant but the trial Court granted benefit of first default to the tenant and, after declaring the tenant as first defaulter, refused to pass decree on the ground of default.
(2.) BRIEF facts of the case are that the plaintiff Smt. Madhulika Agrawal filed suit for eviction for the House No. 35 situated at Ambawgarh, Udaipur alleging that the suit premises was let out by the plaintiff to the defendant on 4. 4. 1989 having rent of Rs. 2000/- per month. The plaintiff alleged that from August, 196 till June, 1997, no rent was paid by the defendant to the plaintiff, therefore, the defendant is defaulter as he has not paid rent for more than six months and hence, the plaintiff is entitled for decree for eviction on the ground of default as provided under sub-clause (a) of sub-section (1) of Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as "the Act" of 1950 ). The plaintiff further alleged in the plaint that her husband was first appointed at Ajmer in the year 1969 and the plaintiff is residing with her husband along with her family members in a rented house of one Shri K. B. Mathur at Ajmer. Shri K. B. Mathur is pressing hard to the plaintiff and her husband to vacate the house. The plaintiff's husband opted for voluntary retirement in the month of October 1994. Thereafter, the plaintiff requested the defendant to vacate the house in dispute as the house in dispute is needed by the plaintiff bonafidely for her own as well as residence of her family members. According to the plaintiff the house was constructed by the plaintiff with clear intention that after the age of superannuation of the husband of the plaintiff, the plaintiff and her husband will live in this house at Udaipur permanently. The plaintiff further submitted that the defendant himself admitted in writing on 6. 7. 1996 that the suit premises is required by the plaintiff as her husband retired from the service and, therefore, the defendant will vacate the house in dispute on 28. 2. 1997 and will hand over the possession of the house to the plaintiff. The plaintiff further submitted that the plaintiff is resident of Udaipur and her relations including her mother, brother and sisters etc. are living at Udaipur. It is further alleged that the plaintiff and her husband are having no residential accommodation except the present disputed house at Udaipur. Though the plaintiff alleged that part of the premises of the house in dispute is being used by the defendant for his various purposes by using it as go-down. Therefore, the plaintiff is entitled for decree for eviction on the ground of change of user in addition to the ground of her personal bonafide need, as mentioned above. The defendant-deceased Subhash Sidhwani, in his life time, submitted the written statement before the trial Court and denied the facts alleged in the plaint but admitted the fact of tenancy. The defendant further admitted that the plaintiff was residing at Udaipur before her marriage but, after her marriage, she is residing at Ajmer with her husband and the husband of the plaintiff is doing the job of consultancy of engineering, for which the plaintiff's husband has opened office at Ajmer and doing the business at Ajmer after retirement. The entire story of personal need of the plaintiff for the house in dispute is concocted story having no factual basis. It is further alleged that the plaintiff with the help of her husband lodged a false criminal case against the defendant in the Police Station, Ambamata and, by force of the police officers, the plaintiff got executed agreement dated 6. 7. 1996. It is further alleged that the defendant is not residing with his father but residing in a rented house and the defendant got separated from his father by an oral partition. The defendant further denied the allegation of default in payment of rent and alleged that the defendant was ready to pay the rent, therefore, the defendant is not defaulter. It is further submitted that the defendant is not using the part of the property for his business nor he is using the part of the property as go-down. The defendant in addition to above pleas, filed the counter claim for fixing standard rent at the rate of Rs. 2000/- per month.
(3.) THE trial Court framed the issues relating to the personal bonafide need of the plaintiff, comparative hardship and partial eviction and also framed the issue with respect to the allegation of change of user of the premises by the defendant and default in payment of rent and, on the basis of the counter claim, issue with respect to the standard rent was also framed. The plaintiff in support of her case appeared in the witness-box as P. W. 1, plaintiff's husband Shri Vishnu Agrawal appeared as witness as P. W. 2, whereas, the defendant appeared in rebuttal to the plaintiff's case as D. W. 1 and also produced Om Prakash (D. W. 2), Mahesh Kumar (D. W. 3), Rajesh Chug (D. W. 4), Prakash (D. W. 5) and Mukesh Kataria (D. W. 6 ). As stated earlier, the suit for eviction was decreed on the ground of personal bonafide necessity of the plaintiff holding need of the plaintiff as reasonable bonafide personal necessity and there is no possibility of partial eviction and, in case of refusal of decree, it was held that the plaintiff will suffer greater hardship than the defendant. The trial Court held the rent of the suit premises as Rs. 2200/- per month and decreed the suit for eviction along with damages for use and occupation at the rate of Rs. 2200/- per month and the difference of rent from interim determination of rent to the actual rent. ;