MILAP CHANDRA JAIN, J. - (1.)THIS appeal has been filed against the judgment of the learned Additional District Judge No. 2, Udaipur dated March 14, 1989 by which he has allowed the appeal of the plaintiff-respondents and set aside the judgment of the learned Additional Civil Judge, Udaipur dated January 28, 1982, dismissing the suit for ejectment. The facts of the case giving rise to this appeal may be summarised thus.
(2.)ON September 15, 1976, the plaintiff Manak Chand filed a suit for the ejectment of the defendant-Chandra Kumar with these allegations. He owns a house situated in Mandi-ki-Naal, Udaipur. On December 5, 1974, it was let out to the defendant on monthly rent of Rs. 65/-. On December 12, 1974, rent note was executed in his favour by the defendant. He has not paid rent since December, 1975. The suit house is reasonably and bonafide required by him for the residence of his family. His grand-son Laxmilal who is reading in 8th Class in the village is to be shifted therefrom for admission in higher class as the village school has no Science subject in IX Class. The business which his sons Dhanraj, Ramlal and Tejpal are carrying in the village has considerably gone down, they want to start their business in Udaipur City and he do not own or possess any house in Udaipur except the suit house for their residence in Udaipur. The defendant has effected material alterations in the suit house by placing tin sheds without his consent. He has also started using the suit house for the commercial purpose. He has not vacated it despite several demands and registered notice. The defendant admits in his written-statement that he is in possession and occupation of the suit house as a tenant and he has duly received notice of ejectment. The remaining allegations of the plaint have been traversed. He has further averred that he tendered the rent personally and on refusal remitted it by money order, the plaintiff wants to enhance the rent to Rs. 100/- per month, his son Ram Chandra lives and carries on business separately from him, the rent was initially Rs. 26/- per month, it was subsequently enhanced and he has installed the printing press since the beginning, notice of ejectment is not valid, amount of rent determined under Section 13(3) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter to be called 'the Act') has duly been deposited, the monthly rent is being regularly deposited, if the decree for ejectment is passed against him he would greatly suffer as there is no other source of income for him and the nature of business which his sons want to start at Udaipur has not been disclosed. The trial Court framed six issues. After recording the evidence of the parties and hearing them, the learned Additional Civil Judge dismissed the suit holding that the suit premises is not reasonably and bonafide required by the plaintiff, the defendant would suffer greater hardship if the decree for ejectment is passed, it is not proved that the defendant has started using the suit house for commercial purpose no material alteration has been effected in it and the ground of default has ceased to exist as amount of rent and interest under Section 13(3) of the Act was duly deposited in time and amount equivalent to monthly rent was being regularly deposited. The plaintiff-respondent filed an appeal. It was heard and decided by the learned Additional District Judge No. 2, Udaipur. The learned Additional District Judge agreed with all the aforesaid findings of the trial Court. However, it has allowed the appeal and has decreed the suit for ejectment on the ground that the defendant has acquired vacant possession of a house in Sector No. 11, Haren Magri, Udaipur.
The respondents have filed cross-objections against the findings on the issues which have been decided against them.

(3.)IT has been contended by the learned counsel for the defendant-appellant that the learned first appellate Court was not at all justified to decree the suit for ejectment simply on the ground that the defendant has constructed a house in Sector No. 11 Haren Magri, Udaipur. He contended that there is neither any pleading nor any issue on this point, this ground of ejectment was not a subject matter of arguments before the trial Court as well as before the first appellate Court, no opportunity was given to the appellant to explain his admission, no application for the amendment of the memorandum of appeal before the first appellate Court was even moved, clause (i) of sub-section (1) of Section 13 of the Act is not attracted as the suit house was not let out for residential purposes, even according to the first appellate Court the suit house was let out for commercial use i.e. for running printing press, the printing press is in the suit house since the beginning and several rent receipts have been issued by the plaintiff-respondent in the name of Vardhman Printing Press in respect of the suit house. He relied upon M/s. Trojan and Co. v. RM N.N. Nagappa Chattiar, AIR 1953 SC 235; Tribhuwan Kumar v. Gita Ram Kalsy, 1986(1) RCJ 479 (P&H); Santlal v. Harbans Singh, 1972 RLW 657; Dr. Gopal Dass Verma v. Dr. S.K. Bhardwaj, AIR 1963 SC 337; S. Kartar Singh v. Chamanlal, AIR 1969 SC 1288.