1 (WP1829.96) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1829 OF 1996 K.C. Shrinivasan, since deceased ) through his legal heirs and ) representatives: ) 1. Smt. Janki Kaipural Srinivasan, ) Age Adult, Occ: Household, ) residing at 408, Juna Bazar, ) Kirkee, Pune – 411 003. ) ) 2. Ravi Kanipural Srinivasan, ) Age about 38 years, Occ: Business ) residing at Kanta Auto Garage, ) Shitole Nagar, Behind Prashant ) Dept. Sangavi, Pune – 411 027 ) ) 3. Prakash Kanipural Srinivasan, ) Age about 41 years, Occu.: Service) ) 4. Prabhakar Kanipural Srinivasan,) Age Adult, Occu.: Service. ) ) 5. Ramchandra Kanipural Srinivasan) Age Adult, Occu.: Service, ) Nos. 3 to 5 residing at 408, Juna ) Bazar, Kirkee, Pune – 411 003 ) ) 6. Smt. Shaila Mohan Nayar, ) Age Adult, Occu.: Service, ) residing at 290, Navi Kirkee, ) Yashwant Nagar, Yeravada, ) Pune – 411 006. ) ) 7. Smt. Shanta Francis, ) Age Adult, Occu.: Service, ) residing at 1st Floor, Flat No.9, ) 2 (WP1829.96) No.6 Aundh Road, Pune-411 007. ) ....Petitioners V/s Mr. Chhotalal Gangaram Aher ) Age about 50 years, Occu.:Business) residing at 404, Old Bazar, Kirkee, ) Pune – 411 003. ) ... Respondent. Mr. S.G. Surana for the Petitioners. Mrs. S.D. Rayrikar i/b Mr. Anil S. Hirve for the Respondent. CORAM: V. M. KANADE, J. DATE : 8th June, 2011 ORAL JUDGMENT: 1. Heard Shri S.G. Surana the learned Counsel appearing on behalf of the Petitioners. He submits that Advocate Shri Anil Hirve who is on record for Respondent has informed him that Respondent has taken away all the papers about eight years ago. Respondent is served. He has not engaged any new advocate. 2. Brief facts are that the Petitioners are tenants in respect of the suit premises and Respondent is the landlord. For the sake of convenience, parties shall be referred to as “landlord” and “tenants” 3. Landlord filed a suit in respect of the room which was occupied by the tenants and sought eviction of the tenants 3 (WP1829.96) on the ground that there was change of user of the suit premises. It was contended that the suit premises was given to the tenants for residential purpose only. However, they had changed the user of the premises and tenants had started running a Canteen in the suit premises. The tenants filed their Written Statement and it was admitted that Defendant was running a Canteen 10 years prior to 1986. It was contended that the landlord had not taken any objection from 1976 to 1982 and, in fact, he had accepted and waived his right in respect of change of user. The Trial Court, on the basis of evidence which was adduced by both the parties, came to be conclusion that the major portion of the premises was used for residence and, therefore, held that there was no change of user. Respondent preferred an appeal before the District Court and the District Court set aside the order of the Trial Court and held that change of user had been proved. Being aggrieved by the order passed by the lower Appellate Court, Petitioners have filed this Petition under Article 227 of the Constitution of India. 4. The learned Counsel appearing on behalf of the Petitioners submitted that the lower Appellate Court has not taken into consideration the fact that the landlord had not taken any objection to the user of the said premises for the purpose of running the Canteen. He submitted that the lower Appellate Court came to the conclusion that the Defendant did not bring on record any evidence to show that 4 (WP1829.96) consent was given by the Plaintiff and only on that ground allowed the appeal. He, therefore, submitted that the lower Appellate Court has committed an error in holding that the Defendant had not established waiver by the landlord/Plaintiff. 5. I have perused the judgment and order of the Trial Court as well as the lower Appellate Court. In my view, there is some substance in the submissions made by the learned Counsel for the Petitioners/tenants. The landlord/Plaintiff in his evidence has admitted that hardly about 5/6 persons used to visit the premises for the purpose of taking food. The burden of proving that there was a change of user, obviously, was on the Plaintiff. It has come on record that the Bills were prepared by the wife of the deceased tenant without help of servants. The Trial Court, therefore, in my view, was justified in coming to the conclusion that merely because 5/6 persons used to take their meals in the suit premises that would not amount to change of user and since major portion of the premises was being used for residence, the lower Appellate Court was not justified in coming to the conclusion that express consent was not given by the landlord. It is an admitted position that the tenants had obtained license from the Cantonment Board as a Keeper of Boarding House in 1977 and 1978. The landlord was very much aware that part of the premises was being used as Canteen. However, for a period of more than 10 years, no 5 (WP1829.96) objection was raised by the Plaintiff. Under these circumstances, finding of the lower Appellate Court, in my view, is patently erroneous and the lower Appellate Court has ignored the documentary and oral evidence on record and has set aside the order of the Trial Court only on the ground that Defendant had not proved that there was an express or implied consent of the landlord. The impugned judgment and order, therefore, will have to be set aside and the judgment and order passed by the Trial Court will have to be confirmed. 6. Accordingly, judgment and order passed by the lower Appellate Court is set aside and the judgment and order passed by the Trial Court is confirmed. Writ Petition is allowed and the Rule is made absolute in terms of prayer clause (b). (V.M. KANADE, J.) 6 (WP1829.96)