1 ndm 83 cra.847.10 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 947 OF 2010 IN APPEAL NO. 183 OF 2007 IN R.A.E. SUIT NO. 4258 OF 1987 Krishnarao Seshrao Vs. Nanji Shamji Waghela and anr. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions and Registrar’s orders Court’s or Judge’s orders Mr. Dharmesh Jain i/b Mr. P.M.Shah for the Applicant. Mr. Anil Singh i/b Mr. Deepak J. Lulia for the Respondents. CORAM : A.S.OKA, J. DATE : 21 st December, 2010. P.C. 1 This civil revision application has been preferred by the original defendant. 2 The Respondents filed a suit for eviction under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as “the said Act”). The suit premises is Room No.5 more particularly described in the plaint. The case made out by the Respondents is that the suit premises was let out for the purposes of residence and that the Applicant had changed the user of the suit premises and had started using the suit premises for carrying on business. The suit was contested by the Applicant by contending that from the inception 2 of the tenancy, he was using the suit premises for the composite purposes of business and residence. He, therefore, denied the allegation that there was any change of user. Both the Courts below accepted the case made out by the Respondents – plaintiffs and have passed a decree for eviction on the ground of change of user. 3 The learned counsel appearing for the Applicant submitted that there is evidence on record to show that right from the inception of the tenancy, the Applicant had been using the suit premises for composite purposes of residence and business. He submitted that by letter dated 1 st February, 1977, the predecessor of the Respondents - plaintiffs had permitted to use the suit premises for commercial purposes. He submitted that the predecessor of the Respondents never made any grievance about the user by the Applicant. He submitted that the said grievance has been made by the Respondents who are the subsequent purchasers. He submitted that the Courts below have committed error by not reading the letter dated 9 th November, 1977 in evidence. 4 I have given careful consideration to the submissions. In paragraph No. 21 of the judgment, the Appellate Court has recorded a finding that the Applicant admitted in his cross- examination that the suit premises was initially let out to him for residence. The case made out by the Applicant in his written statement is that he has been using the suit premises for composite purposes of residence and business. Moreover, the 3 Applicant himself relied upon the alleged letter dated 1 st February, 1977 issued by the predecessor of the Respondents, which according to the Applicant permits the Applicant to use the suit premises for business. The Appellate Court has observed that the said letter was not proved by examining the author of the said letter. As far as trial Court is concerned, apart from holding that the said letter was not proved by examining the author, it was held that there was no pleading regarding the said letter in the written statement. The learned Judge has observed that reliance placed on the said letter was completely inconsistent with the case of the Applicant that from the inception of the tenancy, he was using the suit premises for composite purposes of residence and business. 5 Thus, the admitted position is that the purpose of letting is residence. The photographs produced on record as well as other documents such as licence show that the Applicant is running a shop in the suit premises under the name and style of Prabhu Dry Fruit and General Stores. Hence, there is a finding of fact recorded that the suit premises is being used for running a business. 6 As stated earlier, admitted position is that the original purpose of letting was residence. The Applicant relied upon the alleged letter issued by the previous landlord granting permission for commercial use. The said letter was not proved by examining the author. 4 7 Hence, it is not possible to find fault with the concurrent decrees of eviction passed by both the Courts below on the ground of change of user. Revision Application is rejected. 8 On the prayer made by the learned counsel appearing for the Applicant, it is directed that decree for possession shall not be executed for a period of eight weeks subject to condition that the Applicant will not create any third party rights and will not part with the possession of the suit premises. [ A.S.OKA, J ]