1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3738 OF 2009 Ramprasad Dashrath Pardeshi .. Petitioner Versus M/s.Trade Centre Developers .. Respondent Mr.B.G.Vaidya for petitioner Mr.K.Y.Mandlik for respondent CORAM : S.C.DHARMADHIKARI, J. DATE : 20th April 2009. P.C. . This petition is directed against the concurrent judgements by the trial court and lower appellate court in a suit for possession. 2. The suit for possession filed by the respondent being Civil Suit No.382 of 2003 has been decreed and that decree is confirmed by the lower appellate court. 2 3. The only contention raised by Mr.Vaidya is that the trial court and lower appellate court fell in error in holding that the purpose of tenancy was commercial whereas all through out and even prior to the institution of the instant suit, it was a known fact that the petitioner was carrying on his Laundry business and residing in the premises. There is a washing area/ Mori identified in the Commissioner’s report and that would demonstrate that the premises were used for Laundry business, washing clothes as well as residence. In such circumstances and when reliance is placed upon a lease deed dated 31st December 1966 but that lease deed is not proved, then, decreeing the suit of Landlord on the ground of change of user by the petitioner tenant is patently erroneous and unsustainable in law and, therefore, the decree deserves to be interfered with and quashed and set aside. 4. Mr.Mandlik appearing for landlord on the 3 other hand contended that in the written statement, the stand of petitioner is that the premises have been given to him on rent for business purpose only. Petitioner - defendant and his family members were and are having business of ironing clothes and laundry and, therefore, there is no question of any composite tenancy. In such circumstances, the finding of fact need not be interfered with in writ jurisdiction. 5. I have perused the judgements and orders of the courts below. It is clear from a perusal of the same that the respondent landlord filed a suit in the Court of Small Causes at Pune for possession and pointed out that the earlier landlord/ owner had inducted father of the present petitioner under the Lease Deed dated 3rd December 1966. Reliance was placed on the terms and conditions of this lease deed and it was contended in the plaint that on 7th May 1981, the 4 present petitioner was inducted in the premises. The tenancy, thereafter, was attorned in favour of present respondent. Reliance is placed upon a decree passed in earlier Suit under section 13(1)(hh) of the Bombay Rent Act which came to be confirmed right upto Supreme Court but in accordance with the terms arrived before the Supreme Court, the petitioner was put in possession of the suit property. The order of the Supreme Court itself makes it clear that the terms and conditions of the tenancy are those under the Lease Deed dated 3rd December 1966. However, contrary to the terms and conditions the petitioner defendant started washing clothes, cooking and residing in the premises and that is how the suit was filed on the basis of change of user and on the ground of nuisance. After evidence was led the Courts below have found that nothing much can be made of the fact that the lease deed was not produced as both sides understood the terms and conditions of tenancy. 5 Relying upon admission in the W.S. the Courts below have rightly held that it was for the petitioner - defendant to prove that the purpose of lease was composite viz., business and residential. Having appraised the materials placed on record, the courts below have concluded that the petitioner defendant failed to prove his case of no change of user in the premises. It is in these circumstances, that the decree came to be passed. In the absence of any perversity or the judgement being vitiated by errors apparent on the face of record, there cannot be any interference in this Court’s jurisdiction under Article 227 of the Constitution. Concurrent findings of fact by both the courts below in this case need not be interfered with as no perversity is pointed. In the aforesaid facts and circumstances, writ petition fails and is dismissed. However, the decree for possession shall not be executed till 30th April 2010 provided the petitioner files an undertaking in 6 this Court within a period of 15 days from the date of receipt of this order, stating in clearest terms that he and his family members are in possession of the suit premises, no third party has been inducted therein; that they would not transfer, alienate, encumber or part with possession of the suit premises in any manner whatsoever and that they will continue to pay the rent in respect thereof till possession is handed over. If such an undertaking is filed, there will be a stay of execution of decree for possession till 30th April 2010. In default, the decree becomes executable. In either event, the landlord can execute the decree and take possession of the premises and if necessary with police assistance. (S.C.Dharmadhikari, J)