IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 203 OF 2010 WITH CAC/106/2010 IN CRA/203/2010 Smt Bhagtudevi Lunkaran Malu .. Applicant Vs 1.Mr Gopikishan Ramgopal Garg and anr .. Respondents Mr A.B.Ketkar, for the applicant. Mr R.A.Thorat, for respondent no.1. CORAM : R.C.CHAVAN,J. DATE : 01/07/2010. PC: 1. This Revision Application is directed against the Judgments of the Judge of the Court of Small Causes Mumbai, maintained in appeal by the Appellate Bench of the Court, whereby the courts have allowed the respondent-plaintiff's prayer for ejectment of the applicant on the ground that the applicant had changed the user of the premises from residential to commercial. 2.It is the grievance of the applicant that the learned trial Judge had initially not framed Issue no.3A which reads as under :- T “3A. Whether the plaintiff proves that the defendant no.1 has not used the suit premises without reasonable cause for the purpose for which they were let for a continuous period of six months – immediately preceding the date of the suit?” According to him, this issue was framed by the learned Judge at the time of delivering the judgment and, therefore, he could not tender evidence on this issue. As rightly pointed out by the learned counsel for the respondent, such a ground has not been taken in the Memo of Appeal before the Appellate Bench of the Court of Small Causes. Even so, the Appellate Bench has considered this aspect and has rightly observed that issue no.2 was already framed by the trial Judge and it was the same as Issue no.3A which was sought to be included at the time of the preparation of the judgment. This issue no.2 reads as under : “2. Does plaintiff proves that defendant no.1 has changed the user of the suit premises from residence to non-residence illegally and without plaintiff's consent in writing?” 3. The Appellate Bench held that the respondent-plaintiff had proved that the applicant had not used the suit premises without reasonable cause for the purpose for which it was let out for a continuance period of six months preceding to the date of filing of the suit. Thus, the decree has been passed by the courts under clause (k) of Section 13 of the Bombay Rent Act. 4.Both the courts have analyzed the evidence and have held that the applicant has been provided with electric supply for commercial purpose since the premises were used for commercial purpose. It has also been held that the Municipal Corporation has also shown that the premises were used for commercial purpose. There will be no reason for these independent bodies, who have nothing to do with the landlord- tenant dispute, to conclude that the premises were used for commercial purpose if they are not so used. In fact, the learned counsel for the applicant submitted that the entire building is used for commercial purpose. This cannot be a justification for putting the premises to commercial use if they had been let out for residential use. The applicant has, at the same time, been attempting to point out that there was ration card etc showing the address of the premises to contend that the premises were used for residential purpose and not for commercial purpose. The contention that the building itself is used for commercial purpose and the attempt to show that the premises are still used for residential purpose conflict with each other and amounts to blowing hot and cold in the same breath. There was no error in the concurrent findings of the courts below that the applicant had incurred ejectment on account of change of user of the premises from residential to commercial. Hence, the Revision Application is rejected. Decree may not be put to execution for a period of two months on the applicant's furnishing an undertaking on oath in this court that the applicant will not induct anyone else in the premises and will not create any third party rights. Civil application, accordingly, stands disposed of. (R.C.Chavan, J.)