JUDGMENT - DESHPANDE D.G., J.:--Heard Advocates for the petitioner/bank and respondents.

2. Three questions are involved in this case viz. (1) whether the suit premises were given to the petitioner/bank for the purpose of doing banking business; (2) whether the petitioner/bank has stopped banking business and are using the premises for godown purpose; and (3) whether there is change of user of the premises by the petitioner.

3. These questions arise because admittedly the petitioner/bank have denied that there was any change of user and the findings of both the trial Courts are against the petitioner/bank. Consequently these questions are required to be decided on the basis of record and arguments advanced by both the Advocates.

4. Exhibit 'A' is the notice dated 22nd July, 1974 given by the respondents/landlords to the petitioner/bank for vacating the premises on the ground of change of user. In that notice it is contended that the suit premises were let out specifically for the purpose of office only, and in fact till recently the petitioner had been carrying on their banking business therein. But since 1966 the Bank has shifted to some other premises and the petitioner has been using the suit premises as a godown. The bank gave reply to this notice vide Exhibit 'B', but it was merely an acknowledgement of a notice and no reply because the bank contended that they had referred the matter to their Premises Section at Northern Zone office and the respondents would get reply in due course. Admittedly, till respondents filed their suit before the Small Causes Court, Bombay in 1975, no reply was given by the petitioner/bank to this notice on merits. Therefore, there is no denial of facts asserted by the respondents in their notice Exhibit 'A'.

5. Secondly, in paragraph No. 2 of the plaint at Exhibit 'C' the respondents have repeatedly asserted and contended that the suit premises were let out specifically for the purpose of petitioner's office only and the petitioner did not carry on business of banking in these premises. But since 1966 the petitioner shifted to other premises and has been using the premises as a godown. The petitioner/bank filed their points of defence to the plaint and though in para 6 there is a denial of these allegations, it is pertinent to note that there are no pleadings or assertions by the petitioner that the premises were let out for banking business and also for godown purpose. What they have stated therein is that after shifting their banking business from the suit premises the earlier landlord allowed the petitioner to use the suit premises for keeping stationery and other records.

6. The evidence adduced by the parties must be scrutinised with reference to their pleadings. The petitioner/bank do not plead anything regarding existence of an agreement between them and the earlier landlord or owner about user of the premises for doing banking business and also for other purposes including godown purpose. The petitioner did not adduce any evidence in that regard. Apart from this, when they positively asserted that previous landlord allowed them to use the suit premises for keeping stationery and other records, the petitioner did not examine previous landlord as to whether this permission was in writing or in oral, when the same was given and who had accepted on behalf of the said bank or on other ancillary points. Therefore, there is no evidence from the petitioner regarding so called permission granted by the landlord in that regard and admittedly, there is no evidence to show that there was an agreement between the petitioner and landlord for using the premises for banking business purposes and also for the purpose of godown. To the contrary, right from the stage of first notice Exhibit 'A' till the stage of pleadings and evidence, the respondents have consistently stated that the suit premises were let out for the purpose of doing banking business and not for godown purpose.

7. In view of these facts,

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