Lsp IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO. 1490 of 2009 M/s. Pyarelal & Sons ...Petitioner V/s. Saifuddin Hasanali ...Respondents Mr. P.K.Dhakephalkar, Sr. Counsel with Mr. V.B.Naik i/b. Deepa Ahuja for the petitioner. Mr. V.V.Gangal i/b. Eventa A. Gonsalves for respondents. CORAM CORAM CORAM : A.M.KHANWILKAR,J. : A.M.KHANWILKAR,J. : A.M.KHANWILKAR,J. DATED DATED DATED : 18TH FEBRUARY, 2009 : 18TH FEBRUARY, 2009 : 18TH FEBRUARY, 2009 P.C. . Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith, by consent. 3. Mr. V.V.Gangal waives notice for respondents. 4. As short question is involved, petition is taken up for final disposal forthwith, by consent. 5. This writ petition under Article 227 of the Constitution of India takes exception to the Judgment and decree passed by the Small Causes Court at Bombay in Appeal no. 265/2002 dated November 20, 2008. 2 6. In the present case the concurrent decree for eviction of the petitioners from the suit premises is passed on the ground of change of user. The Courts below relying on the decision of our High Court in the case of Narayanlal Bansilal Deceased Venkatlal Govindlal Narayanlal Bansilal Deceased Venkatlal Govindlal Narayanlal Bansilal Deceased Venkatlal Govindlal Petit Petit Petit & ors. v/s. M/s. Bright Brothers & ors. & ors. v/s. M/s. Bright Brothers & ors. & ors. v/s. M/s. Bright Brothers & ors. reported reported reported in in in 1979 Bombay Case Reporter 288, 1979 Bombay Case Reporter 288, 1979 Bombay Case Reporter 288, has taken the view that it is necessary for the plaintiff to point out that the suit premises were being used for purpose other than the one for which the same were let out. The law as obtained till recently was that the plaintiff does not have to further establish that on account of such change of user, it would result in destruction or permanently injuring the suit premises. This view has, however, been overturned in the case of Suresh Vasant Suresh Vasant Suresh Vasant Malegaonkar Malegaonkar Malegaonkar v/s. Ramabai Keshav Gokhale & ors. v/s. Ramabai Keshav Gokhale & ors. v/s. Ramabai Keshav Gokhale & ors. reported reported reported in 2002 (1) Mh. L.J. page 933. in 2002 (1) Mh. L.J. page 933. in 2002 (1) Mh. L.J. page 933. In this decision, relying on the decision of the Apex Court in the Gurdial Batra v/s. Raj Kumar Jain AIR 1989 SC 1841 Gurdial Batra v/s. Raj Kumar Jain AIR 1989 SC 1841 Gurdial Batra v/s. Raj Kumar Jain AIR 1989 SC 1841 it is held that the decision of our High Court in the case of Bright Brothers is no more a good law. As a result thereof, for the plaintiff to succeed on the ground of change of user he will not only have to plead but also prove the fact that the tenant was using the premises for purpose other than the purpose for which it were originally let out but further establish that on 3 account of such change of user, it would result in destruction or permanently injurious to the suit premises. That is a matter which has to be considered by the fact finding Court in the first instance. The appropriate course in the interest of justice is to relegate the parties before the Appellate Court and which Court in turn would permit the parties to amend their pleadings and/or produce further evidence, if required. Only thereafter, the question can be addressed in the context of the Law now expounded in the recent decision in the Suresh Malegaonkar’s case Suresh Malegaonkar’s case Suresh Malegaonkar’s case (supra). (supra). (supra). All questions in that behalf will have to be addressed on its own merits in accordance with law. 7. Accordingly, this petition succeeds in part. The impugned Judgment and order is set aside. Instead, the appeal is restored to the file of the Appellate Court who in turn shall permit the parties to amend the pleadings and/or produce further evidence to establish the relevant facts keeping in mind the recent exposition of our High Court as referred to above and thereafter answer the controversy on its own merits in accordance with law uninfluenced by the opinion recorded in the impugned Judgment or for that matter in the present order. 8. Parties shall appear before the Appellate Court on 4 16th March, 2009 who in turn shall assign suitable date for proceeding with the hearing of the Appeal and ensure that the appeal is finally disposed of as expeditiously as possible, preferably not later than 30th September, 2009. [A.M.KHANWILKAR,J.] [A.M.KHANWILKAR,J.] [A.M.KHANWILKAR,J.]