- (1.) THIS is a tenant's Petition challenging the Judgment dated 20-9-1983 delivered by the Appellate Court in Civil Appeal No.291 of 1980 dismissing the Appeal filed by the Petitioner and confirming the decree of eviction passed against the Petitioner by the IInd Addl. Judge, Small Causes Court, Pune, dated 20-12-1980 in Civil Suit No.2150 of 1977.
(2.) THE suit premises are on the first floor of the building. The ground on which decree has been passed against the Petitioner is that though the premises were let out to him for using the premises for running a shop for repairs for Typewriter, for running typewriting and short-hand classes. The petitioner after entering into partnership with another person has started using the said premises for Photography business. The trial Court held that there is change of user and therefore passed decree in favour of the landlord. The learned counsel appearing for Petitioner urged before me that after perusal of paragraph 12 of the Judgment of the Appellate Court it is clear that the Appellate Court relied upon on the Judgment of this Court in the case of Bright Brothers (Pvt.) Ltd. and Co. Vs. Venkatlal G. Pittie & Ors. 1979 MLJ 894 and has held that the tenant has to use the premises let out to him for the purpose for which they have been let out to him and user of the premises for any other purpose by the tenant resulted in breach of provisions of clause (o) of Section 108 of the Transfer of property Act. In the submission of the learned Counsel law on the subject is modified by the a subsequent Judgment of the Supreme Court. The learned Counsel appearing for Petitioner relied on the law laid down by the Supreme Court in this Judgment in Gurdial Batra vs. Raj Kumar Jain AIR 1989 SC 1841. The Supreme Court has held that even when premises are let out for residential purpose exclusively, use of part of premises for commercial purpose does not amount to change of user. He further urged by relying on the Judgment of the Supreme Court in the case of Mohan Lal vs. Jai Bhagwan _ AIR 1988 SC 1034 that even when tenant changes his business and uses premises for another business, it does not amount to change of user, if it is shown that as a result of this change the utility of the building has impaired.
(3.) IT is to be seen that it is clear from the Judgment of both the Courts below that the premises continued to be used for the business for which they were leased out, subsequently the tenant entered into partnership for running photography business also in the same premises. The Supreme Court in this Judgment Gurdian Batra v. Raj Kumar Jain referred to above in paragraphs 6 and 7 have observed : "6. Letting of a premises can broadly be for residential or commercial purpose. The restriction which is statutorily provided in S.13(2)(ii)(b) of the Act is obviously one to protect the interest of the landlord and is intended to restrict the use of the landlord's premises taken by the tenant under lease. It is akin to the provision contained in S.108 (o) of the Transfer of Property Act dealing with the obligations of a lessee. That clause provides : The lessee may use the property and its products, if any, as a person of ordinary prudence would use them if they were of his own; but he must not use or permit another to use the property for a purpose other than that for which it was leased .... 'A house let for residential purpose would not be available for being used as a shop even without structural alteration. The concept of injury to the premises which forms the foundation of cl.(o) is the main basis for providing cl.(o) in S.13(2)(ii) of the Act as a ground for the tenant's eviction. The Privy Council in U Po Naing v. Burma Oil Co., AIR 1929 PC 108 adopted the same consideration. The Kerala High Court has held that premises let out for conducting trade in gold if also used for a wine store would not amount to an act destructive of or permanently injurious to the leased property (1977 Ker LT 417). Similarly, the Bombay High Court has held that when the lease deed provided for user of the premises for business offset work and the lessee used the premises for business in plastic goods, change in the nature of business did not bring about change of user as contemplated in S.108(o) of the Transfer of Property Act (1970 Mah LJ 545) 7.The landlord parts with possession of the premises by giving a lease of the property to the tenant for a consideration. Ordinarily, as long as the interest of the landlord is not prejudiced, a small change in the user would not be actionable." Similarly, in paragraph 7 of the Judgment in the case of Mohan Lal v. Jai Bhagwan the Supreme Court has observed this : "7. Our attention was drawn to a decision of this Court in Maharaj Kishan Kesar v. Milkha Singh, Civil Appeal No.1086 of 1964 decided on 10th of Nov.1965. That was a decision under the East Punjab Urban Rent Restriction Act, 1949. There on the facts the Court found that selling petrol was an alied business of the workshop and as such it is a part of the business. The Court held that there is no evidence to show that in the trade a petrol pump is not regarded as a part of motor workshop business. The sale of petrol is an alied business. The sale of petrol is an alied business and would not amount to conversion to a different business or change of user. There is nothing in the said decision which would give any assistance to the respondent in the case. The business purposes of the Rent Act in question which is to control the eviction of tenants therefrom. In the expanding concept of business now-a-days and the growing concept of departmental stores. We are of the opinion that it cannot be said that there was any change of user in the facts of this case which would attract the mischief of the provisions of S.13(2)(ii)(b) of the Act. The building was rented for purpose of carrying on a business, using it for another business, it will not in any way impair the utility or damage the building and this business can be conveniently carried on in the said premises. There was no nuisance created." ;