1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CIVIL REVISION APPLICATION NO.81 OF 2008 Maruti s/o Purushottam Tapasvi, Age 68 years, Occ. Service, through G.P.A. Sadanand s/o Purushottam Tapasvi, Age 65 years, Occ. Business, R/o Tilak Path, Ajabnagar, Aurangabad. ... APPLICANT (Original Plaintiff/ landlord) VERSUS Himayat Ali s/o Ashraf Ali Jaidi, Age 56 years, Occ. Business, R/o Behind Hotel Empire, Deodi Bazar, Aurangabad. ... RESPONDENT (Original Defendant/ tenant) ..... Shri M.V. Deshpande, Advocate holding for Shri S.S. Gangakhedkar, Advocate for the applicant Shri P.F. Patni, Advocate for the respondent ..... 2 CORAM : Shrihari P. Davare, J. DATED : 1st July, 2009. ORAL JUDGMENT : 1. Perused. Rule. Rule made returnable forthwith and taken up for final hearing with the consent of learned counsel for the parties. 2. By the present Civil Revision Application, the applicant (original plaintiff) has challenged the correctness and legality of the judgment and order dated 6.3.2008, passed by learned Principal District Judge, Aurangabad in Rent Appeal No.15/2005, and requested to quash and set aside the same. 3. The respondent is the monthly tenant of Shop No.1, i.e. suit shop and the applicant herein is the landlord thereof. The applicant herein filed the eviction proceedings against the respondent under Section 15 of the Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954 bearing No.1983ARC/60 before Additional Rent Controller, Aurangabad. The said eviction proceeding was partly allowed by the learned Additional Rent Controller, Aurangabad and thereby directed the respondent/ tenant to vacate the suit premises within the period of 30 days from the date of the said order. 4. Being aggrieved by the said order, the respondent herein preferred Rent Appeal No.15/2005 before the Principal District Judge, 3 Aurangabad and the said appeal was allowed vide judgment and order dated 6.3.2008 and thereby the judgment and order dated 29.8.2005, passed by learned Additional Rent Controller, Aurangabad in Eviction Petition No.1983/ARC/60 was quashed and set aside. Being dissatisfied and aggrieved by the said judgment and order, the petitioner/ landlord has challenged its correctness and legality in the present Civil Revision Application. 5. It is also material to note that simultaneously the petitioner/ landlord filed Small Cause Suit No.65/1983 for recovery of rent till May 1982. However, learned Joint Civil Judge, Junior Division, Aurangabad negatived the said suit of the landlord holding that the tenant has paid the rent in excess. The petitioner/ landlord preferred appeal against the said judgment and order before the district Court and same was allowed. Being aggrieved by the said judgment and order, the respondent/ tenant preferred Civil revision Application No.135/1987 before this Court and this Court allowed the said Civil Revision Application and thereby quashed and set aside the judgment and order passed by District Court and the judgment and order passed by Jt. Civil Judge (Junior Division), Aurangabad in Special Civil Suit No.165/1983 was restored and that finding is still in force. 6. At the outset, the petitioner/ landlord filed the eviction proceedings mainly on the following grounds before Rent Controller: 4 (i) Willful default, (ii) Sub-letting/ change of user, and (iii) Bonafide requirement 7. However, the Additional Rent Controller, Aurangabad negatived the grounds of sub-letting and bonafide requirement, but upheld the ground of willful default and thereby directed the respondent herein to vacate the suit premises as per the judgment and order passed on 29.8.2005. 8. In the Rent Appeal No.15/2005 filed by the respondent herein, two grounds i.e. willful default and change of user of the suit premises were considered by the learned lower appellate Court. As regards the ground of willful default, since in Civil Revision Application No.135/1987 this Court held that the respondent/ tenant was not the willful defaulter and since the said finding is still in force, the issue/ ground of the willful default rests there only and there is no substance in the said ground. 9. As regards the another ground of alleged change of user of the said suit shop, the learned Additional Rent Controller has observed on the basis of evidence that the respondent/ tenant has not changed any use of the business in the suit shop, but he found that there is slight change in the suit shop. It has come in the evidence of petitioner/ 5 landlord that the tenant has changed the business of selling of suitcase under the name and style as “Raja Suitcase” to “Rajarani Garments” in the said suit shop. 10. However, it is material to note that there is no pleading to that effect in the plaint and the said evidence of the power of attorney holder of the petitioner/landlord is without the basis and foundation of pleading therefor in plaint, cannot be considered. 11. The learned counsel for the petitioner submits that the respondent/ tenant has changed the business in the suit shop and it is being used for office purpose. However, admittedly the suit premises was let out to the respondent/ tenant for business purpose and, therefore, even assuming for the sake of assumption without admitting the suit shop is being used for office purpose since the use for office purpose is the facet of the business, there is no substance in the contention raised by the learned counsel for the petitioner. 12. In the said context, learned counsel for the petitioner relied upon the observations made in paragraph No.15 of the judgment reported in 1980 Bom. C.R. 424 (Kasturchand Panachand Doshi & others Vs. Yeshwant Vinayak Sainkar & another), wherein it is observed in para 15 as under: 6 “While one may broadly agree with Shri Shah when he says that the meaning of the word “purpose” has to be gathered by reference to Section 6 of the Rent Act one cannot further agree with him that the broad purposes mentioned in Section 6 are final and complete. Each of the purposes mentioned in Section 6 of the Bombay Rent Act may consist of several species of purposes in itself. V.S. Desai, J. has in fact emphasised that in a given case a lease may contain specific restrictive covenant and in that case the purpose of the use may still further be restricted. Thus in a case where the premises are leased for the purpose of “business”, if, instead of carrying on milk business, the tenant carries on the business of selling some other articles then there would not be a change of the purpose of the user. If, however, the lease itself mentions that the demised premises should be used for the selling of milk and if the tenant uses the premises for the selling of alcoholic drinks, then it must necessarily mean that there is a change of the purpose of the user though both the purposes namely the purpose of selling milk and the purpose, of selling alcoholic drinks, may be included in the larger genus of business. The purpose mentioned in Section 108(o) of the Transfer of Property Act may consist of a purpose which is a part of one of the purposes mentioned in Section 6 of the Bombay Rent Act. So viewed on the facts of this case, it must be held to be a change of user when the petitioner started using the premises for a purpose other than one for which it was let, namely dairy business.” 7 13. On the face of the said position, the learned counsel for the respondent relied upon the observations made in paragraph no.12 of the judgment reported in 1998(2) Mh.L.J. 570 (Gautam Bhalchandra Kamble Vs. Govindkumar Narayanlalji Lahoti), which reads as under : “12. A common factor that is found in all the three cases referred to above is that the landlord had come with a specific case regarding letting out of premises for a particular purpose and user of the premises by the tenant for a different purpose. In the instant case, however, the landlord is totally silent regarding the purpose for which or the business for which the tenanted premises were to be used by the tenant. The rent note on which the landlord has based his claim, is totally silent in this regard, and neither the purpose of letting out the premises nor the business to be carried out by the tenant is mentioned in the rent note. Consequently, the landlord does not fulfil the necessary requirement of Section 5(2)(ii)(b) that he had let out the premises for a particular purpose and that the tenant has used the premises for some other or different purpose. The lower appellate court however, did not consider this material aspect and gave a finding in favour of the landlord.” 14. Moreover, the learned counsel for the respondent also relied upon the observations made in the ruling reported at (2005) 7 S.C.C. 643 (Hari Rao Vs. N. Govindachari and others), which read as under: 8 “In the case in which there is absence of any covenant in the lease prohibiting a user different from the particular one mentioned therein, tenant would be entitled to carry on any trade in the premises consistent with the location and nature thereof. Alteration in commodity traded in, expansion of trade or taking up other lines of trade would be permissible therein. However, change from commercial to residential use or from trading to manufacturing or production of goods, would be a user other than one for which premises was let out. Court must see whether there has been such a change of user as to make it alien to purpose for which premises was let out. If basic activity remains the same and there is only a variation in manner or mode of carrying on of that activity, eviction on ground of change of user is to be denied. On facts, building having been let for trading in shoes and other leather goods, diversification into readymade garments as well did not amount to change of user (T.N. Buildings (Lease and Rent Control) Act, 1960). 15. Considering the rival submissions and also considering the observations made in the aforesaid rulings cited by learned counsel for both the parties, since there is patent lacuna in the pleadings of the petitioner/ landlord in the very plaint, in respect of the alleged ground of change of user of the suit premises, the evidence adduced/ produced in the said proceedings in respect of the said ground cannot be considered and the said very lacuna apparently hampers the case of the petitioner/ landlord. 16. In the circumstances, and after considering the impugned 9 judgment and order passed by Principal District Judge, Aurangabad in Rent Appeal No.15/2005 on 6.3.2008, it is amply clear that there is no illegality and/or perversity and no interference therein is warranted under the revisional jurisdiction. 17. In the result, this is not a fit case to exercise the revisional jurisdiction and, therefore, present Civil Revision Application fails and resultantly, the present Civil Revision Application stands dismissed at the admission stage itself. Rule discharged. (Shrihari P. Davare, J.)