IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION REVIEW PETITION NO.35 OF 2009 IN WRIT PETITION NO.7150 OF 2008 M/s.Arthur Frank & Ors. ...Petitioners V/s. Patel India Pvt.Ltd. ...Respondent ...... Mr.V.A.Thorat, Sr.Counsel with Mr.Rajiv Patil i/b Mr.Sachin Punde for Petitioners. Mr.Abhay Abhyankar, Sr.Counsel with Mr.Prashant Chavan & Mr.Sachin Kudalkar i/b Madekar & Co. for Respondent. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. APRIL 3, 2009. APRIL 3, 2009. APRIL 3, 2009. P.C. 1. Heard Counsel for the parties. 2. According to the Respondent, the order of the Supreme Court relied upon by the Petitioners does not give liberty to the Petitioners to file review before this Court. From the language of the order of the Supreme Court, it is amply clear that : 2 : it is the Petitioners who withdrew the Special Leave Petition on the basis of the statement made before the Court in that behalf. However, without dilating on this aspect any further, I would straight away answer the controversy on the basis of the decision of the Apex Court which is pressed into service by the Counsel for the Respondent in the case of Haridas Das vs. Usha Rani Banik (Smt.) Haridas Das vs. Usha Rani Banik (Smt.) Haridas Das vs. Usha Rani Banik (Smt.) & Ors. reported in (2006) 4 SCC 78. & Ors. reported in (2006) 4 SCC 78. & Ors. reported in (2006) 4 SCC 78. In Para 13 of the decision, the Apex Court has expounded that the provisions of Section 114 of the Code of Civil Procedure or Order 47 of C.P.C. do not postulate rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the Court and thereby enjoyed a favourable verdict. Applying this dictum, in my opinion, this Review Petition should fail. 3. Indeed, Counsel for the Petitioner relied on the decision of the Apex Court in the case of Board of Control for Cricket, India & Anr. vs. Board of Control for Cricket, India & Anr. vs. Board of Control for Cricket, India & Anr. vs. Netaji Cricket Club & Ors. reported in AIR 2005 SC Netaji Cricket Club & Ors. reported in AIR 2005 SC Netaji Cricket Club & Ors. reported in AIR 2005 SC : 3 : 592 592 592, in particular, observations in Paragraphs 88 to 90 of this decision which deals with the scope of review jurisdiction. However, this decision in no way would permit the Petitioners to ask for rehearing of the dispute between the parties on the ground that some of the aspects were not highlighted on the earlier occasion or binding precedence produced. 4. Reverting back to the order passed by me on the Writ Petition, the same has dealt with the arguments which were canvassed before me at the time of hearing. Counsel appearing for the Petitioners, in all fairness, submits that it is not the case of the Petitioners that certain points which were argued across the bar have not been referred to in the order passed by me on 21st January 2009. If it is so, it logically follows that what the Petitioners contend in the present Petition is for rehearing of the dispute on the argument that the conclusion reached by me in order dated 21st January 2009 was wrong and could not have been reached at all. : 4 : 5. On fair reading of my order dated 21st January 2009, the opinion recorded by me is to uphold the concurrent view taken by the two Courts below. It is found as of fact by the Courts below that the suit premises were let out to the Petitioners for office purpose. However, instead of using the premises for that purpose, the premises were being used for residential purpose. That not only results in change of user but also attracts ground for eviction under Section 16(1)(n) of the Maharashtra Rent Control Act, 1999. If the eviction was on the ground of change of user, it may be relevant to consider the argument of the tenant that on account of such change, the premises were being damaged or jeopardised. However, while considering the ground of non-user within the meaning of Section 16(1)(n) of the Act, such a plea is unavailable. 6. To get over this position, Counsel for the Petitioners submits that Section 16(1)(n) of the Act would be attracted and available only in cases where the landlord is able to establish that the premises were kept completely locked for a period : 5 : of six months preceding the date of institution of the Suit and not otherwise. To buttress this submission, reliance has been placed on the decision of our High Court in the case of Balwant Balwant Balwant Sadashiv Datye & Ors. vs. Vasudeo Shripad Sadashiv Datye & Ors. vs. Vasudeo Shripad Sadashiv Datye & Ors. vs. Vasudeo Shripad Mahadeokar & Ors. reported in 1985(2) All India Mahadeokar & Ors. reported in 1985(2) All India Mahadeokar & Ors. reported in 1985(2) All India Rent Control Journal 561 Rent Control Journal 561 Rent Control Journal 561 (see Para 3). Reliance is also placed on another decision in the case of Avadhut Harihar Dharke vs. Baban Buva Bhutkar Avadhut Harihar Dharke vs. Baban Buva Bhutkar Avadhut Harihar Dharke vs. Baban Buva Bhutkar reported in 2000 (4) Bom.C.R. 789. reported in 2000 (4) Bom.C.R. 789. reported in 2000 (4) Bom.C.R. 789. Insofar as the latter decision is concerned, that only expresses doubt about the legal position obtaining in respect of Section 13(1)(k) of the Bombay Rents, Hotel & Lodging House Rates Control Act, 1947, as it then applied and referred the matter for consideration before the larger Bench. It is, therefore, not a binding precedent as such. Reverting to the former decision in the case of Balwant Datye (supra), it is noticed that the allegation was that the premises were let out for tailoring business, but was used for grocery business. In other words, the premises were used for the same purpose of business but for other business than the one for which it was let out. In the present case, however it has : 6 : been established on the basis of evidence on record that the premises were let out for office purpose only whereas, the same were being used for residential purpose. Obviously, therefore, the premises were not being used for office purpose which was the purpose for which it was let out for a period of more than six months preceding the date of institution of the Suit. In such a case, the argument that the premises were not found completely locked for more than six months is unavailable. As a matter of fact, on the opinion recorded in the earlier part of this order it is is unnecessary to dilate any further on this aspect, as it is not possible to give rehearing of the dispute to the Petitioners which is the attempt by way of present Petition. Hence, dismissed. 7. At this stage, Counsel for the Petitioners submits that the Petitioners may consider of taking the matter in appeal before the Apex Court, for which reason, the protection given to the Petitioners till 31st April 2009 be continued for further period of four weeks thereafter. Counsel for the Respondent, however, submits that four : 7 : weeks from today, if granted would be sufficient indulgence shown to the Petitioners. It is further submitted that in any case, the Petitioners will have to give the same undertaking afresh as was given on the earlier occasion, if the Petitioners intend to avail of further extension. 8. Taking overall view of the matter, therefore, it is ordered that the time given in terms of order dated 21st January 2009 shall now stand extended till 15th May 2009 on same terms and conditions stated in the said order. Petitioners shall cause to file fresh affidavit of undertaking on the same terms as stated in order dated 21st January 2009. Such undertaking be filed within one week from today, failing which it will be open to the Respondent to proceed with the execution of the decree, if so advised. A.M.KHANWILKAR, J.