: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.800 OF 2009 Saifuddin Hasanali .. Applicant V/s. Pyarelal & Sons .. Respondents Mr. A.N. Nashikwala for the Applicant. Mr. V.B. Naik i/b. Ms. Deepa Ahuja for the Respondents. CORAM : SMT. NISHITA MHATRE, J. DATED : 10 TH FEBRUARY, 2010. P.C.: 1. The Civil Revision Application has been filed by the landlord against the order dated 4th September, 2009, passed by the Appellate Court of the Small Causes Court, Mumbai, allowing the Appeal No.265 of 2002 filed by the respondent herein. The Appellate Court has set aside the decree passed by the trial Court on 25th February, 2002 in R.A.E. Suit No.374/982 of 1989 filed by the applicant herein. 2. In a previous round of litigation between the parties, after the trial Court having decreed the Suit, the Appellate Court confirmed the finding of the trial Court that there was a change of user : 2 : and, therefore, the tenant should be evicted. Being aggrieved by that order, Writ Petition No.1490 of 2009 was filed by the tenant i.e. the respondent herein in this Court. That Writ Petition was disposed of by order dated 18th February, 2009 passed by Khanwilkar, J. with a specific observation that the matter was being remanded to the Appellate Court in order to permit the parties to amend the pleadings and/or produce further evidence to establish the relevant facts. This order was passed in view of the judgment of this Court in the case of Suresh Vasant Malegaonkar v/s. Ramabai Keshav Gokhale & Ors., reported in 2002 (1) Mh.L.J. 933. The learned Judge while passing the order referred to the earlier view taken by this Court in the case of Narayanlal Bansilal, Deceased, Thru’ Venkatlal Govindlal Petit & Ors. vs. M/s. Bright Brothers & Ors., reported in 1979 BCR 288, in which it was held that all that was necessary for the landlord to point out was that the Suit premises were being used for purpose other than the one for which they were let out. Reliance was placed on the judgment of the Apex Court in the : 3 : case of Gurdial Batra v/s. Raj Kumar Jain, reported in AIR 1989 SC 1841, by this Court while declaring the judgment in Malegaonkar’s case. The Supreme Court in the case of Gurdial Batra v/s. Raj Kumar Jain has held that the landlord requires to prove not only the change of user, but he must establish that that change has caused damage or destruction to the suit premises. It was therefore observed in Malegaonkar’s case that the judgment in the case of M/s. Bright Brothers was no longer good law. 3. On remand, the applicant submitted an application for amendment. In para ‘5-B’ of the application, the amendment sought by the applicant is stated as follows : “5-B.That the suit premises were let out for the specific purpose of using the same as a godown and the same is specific term of tenancy. That the specific term of tenancy being the suit premises will be used a godown and therefore, there is prohibition for the use of the premises for any other purpose. The Plaintiff therefore, submits that the question of injury/damage to the suit premises on account of change of user does not arise.” : 4 : 4. In these circumstances, in my opinion, the Appellate Court has committed no error by concluding that the landlord had not established that the change of user of the suit premises has caused destruction or damage to the suit premises. 5. It has been argued on behalf of the applicant that in view of the judgment of a learned Single Judge of this Court in the case of Canara Bank, Bombay vs. Yusuf Abdulhussein Arsiwala, Decd., thru’ Fiza Yusuf Arsiwala & Ors., reported in 1999 Bom.R.C. 328, the Appellate Court need not have directed the parties to lead further evidence on the issue as to whether the property is damaged when in fact there was a change of user. 6. This submission is untenable in view of the judgment of this Court in the case of Suresh Vasant Malegaonkar v/s. Ramabai Keshav Gokhale & Ors. Apart from this, the applicant has not bothered to challenge the order of Khanwilkar, J. by which the Appeal was remanded for a fresh hearing. 7. The Civil Revision Application is dismissed. .......