dgm gm gm 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 WRIT WRIT PETITION NO.3704 OF 1991 PETITION NO.3704 OF 1991 PETITION NO.3704 OF 1991 Sumatibai Anandrao Rajurkar Petitioner Vs. Shri Punamchand P. Lohade, since deceased legal heirs 1a) Smt.Prabhavati P. Lohade 2b) Shri Sandeep P. Lohade Respondents. Mr.A.K.Abhyankar,Sr.Counsel with Mr.V. B. Rajure for the Petitioner. Mr.P.B. Shah for the Respondents. CORAM CORAM CORAM : ANOOP V.MOHTA, J. : ANOOP V.MOHTA, J. : ANOOP V.MOHTA, J. DATED DATED DATED : 2nd December, 2008. : 2nd December, 2008. : 2nd December, 2008. JUDGMENT: JUDGMENT: JUDGMENT: The Petitioner/plaintiff/landlady has challenged the orders passed by the Courts below, whereby her Suit for eviction is dismissed which was under Section 13(1)(a) and (l) of Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (for short, "Bombay Rent Act") by holding that there is no change of user of the suit premises and though the Respondent/tenant acquired suitable residence, but still not entitled for possession. 2. The basic facts are that the suit premises were given in leave and licence by executing an agreement ( 2 ) by the Plaintiff with the Defendants on 10.12.1962 and, therefore, the Defendant is claiming protection under section 15(a) of the Bombay Rent Act. The Plaintiff/Petitioner’s case is that it was for residential purposes, whereas Defendant’s case is that it was for composite purpose. The Defendant was doing his profession as Income-tax Practitioner and, therefore, using part of the said premises as consultancy office. On 27.4.1982 the defendant sent Money Order which was refused. Again on 5.7.1982 also he refused to accept the money orders. On 24.4.1983 the Petitioner sent demand notice of arrears of rent and terminated the tenancy on 31st May, 1983. On 6.5.1983 Defendant sent arrears of rent which was accepted. On 7.5.1983 he sent the amount of Rs.5576/-. The Respondent/tenant acquired premises at 797, Bhandarkar Road at Pune. On 20.8.1987 the trial Court dismissed the Suit on all grounds. On 12.1.1991 the learned Appellate Court also dismissed the Appeal of the Petitioner. The ground of arrears of rent was not pressed and restricted only to change of user and acquisition of suitable accommodation. Therefore, the present petition. 3. The basic lease/ leave and licence agreement dated 10th December, 1962 between the parties provides ( 3 ) nowhere that the premises were let out for composite purpose i.e. residential and non-residential. The plain reading shows that the premises were let out for residential purposes. Clause-C contemplates apart from others to pay all charges of electricity for domestic purposes, for consumption of energy and power. The schedule of Articles annexed to the agreement read with the whole document nowhere provides that the premises were let out other than residential purposes. The basic burden lies upon the tenant to prove that it was let out for composite purpose. 4. In the present case, the Respondent being Chartered Accountant, was using one room for consultation. His clients usef to visit the premises for consultation. Therefore, mere usage of the premises of the Chartered Accountant for carrying out his profession though admittedly dominant purpose and use of the premises is for residence, that itself cannot be sufficient to hold that the premises was let out for composite purposes. It no way change or alter the purpose of letting out. The landlady may or may not take objection to such composite usage. In Sakharam Sakharam Sakharam Narayan Kherdekar Vs. City of Nagpur Narayan Kherdekar Vs. City of Nagpur Narayan Kherdekar Vs. City of Nagpur Corporation Corporation Corporation and Ors. AIR, 1964 Bombay, 200, and Ors. AIR, 1964 Bombay, 200, and Ors. AIR, 1964 Bombay, 200, this ( 4 ) Court while considering the advocate’s profession held that it is not a commercial activity in the premises, and therefore, registration is not necessary under the Bombay Shops and Establishments Act. In the present case also, there is nothing to show that the premises or portion of the premises was registered for any commercial activities. 5. In Narayan Dattatraya Umbarkar Vs. Late Shri Narayan Dattatraya Umbarkar Vs. Late Shri Narayan Dattatraya Umbarkar Vs. Late Shri Shankar Shankar Shankar Hirji Pandya (deceased by his legal heir), Hirji Pandya (deceased by his legal heir), Hirji Pandya (deceased by his legal heir), 1993 1993 1993 Bom.R.C. 324, Bom.R.C. 324, Bom.R.C. 324, while dealing with the said provision held that mere user of part of premises for profession would not account to change of user. Therefore, the professional like Doctor advocate, Chartered Accountant if use their premises for professional purpose and dominantly for residential purpose, the so called agreement cannot be said to be for composite purpose of residential and non-residential. It is obsered by this Court in Bhavarlal Bhavarlal Bhavarlal Sukhlal Soni by L.Rs. Vs. Lakshminarayan Sukhlal Soni by L.Rs. Vs. Lakshminarayan Sukhlal Soni by L.Rs. Vs. Lakshminarayan Deo Deo Deo Public Trust, 1994 Mh.L.J. 843, Public Trust, 1994 Mh.L.J. 843, Public Trust, 1994 Mh.L.J. 843, that Section 13(1)(l) provision applies only to premises taken on lease for residential use and not to premises taken for commercial use. However, in the present case, there is clear finding given by the Court below that tenant use to have office in the suit premises in ( 5 ) connection with the income tax. There are witnesses to support the same also. But having once found that it is permissible for such tenant to use the premises for professional purposes, and such use in no way amounts to change of user of the suit premises, this finding according to me supports the case of the landlady that the premises was let out and used through out for the residential purpose and it was never objected as it no way amounts to creation of composite tenancy. Once, it is clear that the tenant has used this entire premises dominantly for residential purpose and the use of portion of the premises for professional purpose, is not amount to change of user and therefore, the tenancy through out as created is of residential purpose only. 6. Now, there is ample material on record to show that the tenant has purchased the property and using the same. The said property is suitable residential premises. Both the Courts have rejected the landlady’s case on the ground that as the tenancy was composite and as the tenant acquired only suitable residential premises, the landlady is not entitled for the decree of possession on this ground is incorrect and unsustainable. The findings so given by the Courts below that the tenant has acquired the suitable ( 6 ) residential premises, in my view is sufficient to grant the decree on that count also as the tenancy was not composite as held by the Courts below. In view of above, as the premises was let out for residential purpose and tenant has acquired the alternative suitable residence, the Court has no choice but to grant the decree against the tenant on this ground. It squarely falls within the provisions of Section 13(1)(l) of Bombay Rent Act in favour of the landlady and against the tenant. 7. In view of the clear interpretation and decision given by the Supreme Court, as well as, this Court and as the tenancy, according to me also is for residential purpose, and not for composite purpose as contended, in my opinion, the dominant purpose to let out the premises in view of the residential use and in view of the above judgments, it is clear that the professional use by the tenant of some portion of the premises, in no way changes the use for which it was let out and as observed by the Courts below, in the present case, this itself support the case of landlord/landlady. The Petitioner landlady proved that the suit premises were given for residential purpose only. Therefore, I am of the view that the impugned order passed by the Court below, are liable ( 7 ) to be quashed and set aside. The suit as filed by the Petitioner-Landlady, is allowed under Section 13 (1) (l) of the Bombay Rent Act and rest of the findings with regard to the Section 13(1)(k) is maintained as a whole. The Petition is allowed as prayed, with above modifications. 8. Rule made absolute accordingly. No costs. 9. The learned counsel for the respondents seeks stay of this judgment. Considering the facts and circumstances, the effect and operation of this judgement is stayed for six weeks from today. ( ANOOP V. MOHTA, J.) ANOOP V. MOHTA, J.) ANOOP V. MOHTA, J.)