Section 25(1) of the Bombay Rent Act, 1947, prohibits the landlord from using or permitting the use of residential premises for non-residential purposes, and any waiver of a breach of the lease agreement by the tenant that would result in a change of user from residential to non-residential is barred by section 25(1).

Headnote:
CHANGE OF USER - BOMBAY RENT ACT, 1947 - SECTION 13(1)(A) - TRANSFER OF PROPERTY ACT, 1882 - SECTION 108(O) - WAIVER OF BREACH - SECTION 25 - LANDLORD'S RIGHT TO EVICT TENANT FOR CHANGE OF USER - EFFECT OF SECTION 25 ON WAIVER - INTERPRETATION OF SECTION 25(1) - RELEVANCE OF DOMINANT OR ANCILLARY USE - REGULAR PAYMENT OF RENT UNDER SECTION 12(3)(B) - MONTHLY TENANCY - PAYMENT OF RENT YEARLY - EFFECT ON SECTION 12(3)(B).
Fact of the Case:

The tenant occupied the suit premises for residential purposes and executed a rent-note in 1940. The landlord sold the house to the plaintiff in 1967. The tenant fell into arrears of rent, and the plaintiff filed a suit for arrears of rent and possession on various grounds, including change of user. The trial court found that the tenant had committed a breach by establishing a shop in a portion of the suit premises and passed a decree for eviction from a portion of the house. The appellate court upheld the decree for eviction from the entire premises.
Finding of the Court:

The court held that the tenant had committed a breach of the lease agreement by changing the user of the premises from residential to commercial without the landlord's consent. The court also held that the landlord had not waived the breach by accepting rent from the tenant after the change of user. The court further held that section 25 of the Bombay Rent Act, 1947, which prohibits the landlord from using or permitting the use of residential premises for non-residential purposes, barred the tenant from relying on the landlord's waiver of the breach.
Issues: 1. Whether the tenant had committed a breach of the lease agreement by changing the user of the premises from residential to commercial without the landlord's consent? 2. Whether the landlord had waived the breach by accepting rent from the tenant after the change of user? 3. Whether section 25 of the Bombay Rent Act, 1947, barred the tenant from relying on the landlord's waiver of the breach?
Ratio Decidendi: 1. The court held that the tenant had committed a breach of the lease agreement by changing the user of the premises from residential to commercial without the landlord's consent, as this was a breach of clause (o) of section 108 of the Transfer of Property Act, 1882, and actionable under section 13(1)(a) of the Bombay Rent Act, 1947. 2. The court held that the landlord had not waived the breach by accepting rent from the tenant after the change of user, as section 25(1) of the Bombay Rent Act, 1947, prohibited the landlord from using or permitting the use of residential premises for non-residential purposes, and any waiver of the breach would defeat the provisions of section 25(1). 3. The court held that section 25 of the Bombay Rent Act, 1947, barred the tenant from relying on the landlord's waiver of the breach, as the section prohibited the landlord from using or permitting the use of residential premises for non-residential purposes, and any waiver of the breach would defeat the provisions of section 25(1).
Final Decision: The court dismissed the tenant's petition and upheld the decree for eviction from the entire premises.

JUDGMENT - Chandurkar M.N. J.-The only question which really arises for decision in this petition filed by the tenant is whether the lower appellate Court was right in making a decree for eviction in respect of the suit premises on the finding that the tenant had brought about a change in the user of the premises, which were originally taken only for the purposes of residence. I am not now concerned with the landlord's case that the premises were needed bona fide for personal use because on that issue, both the Courts below have found against the landlord.

2. The relevant facts may now be stated: The house in question originally belonged to one Surajbai and it was occupied by the petitioner forresidence and he executed a rent-note dated 20th July, 1940. The house cameto be auctioned in some litigation against Surajbai and plaintiff No. 1 had purchased the said house in January 1967. The tenant fell in arrears of rent and plaintiff No. 1 then filed Civil Suit No. 229 of 1968 for arrears of rent. This suit came to be decreed on 6th September, 1975 and a decree for Rs. 195 plus costs was made. The trial Court had directed that the landlord was permitted to increase the amount of rent to Rs. 250 per year upto 5th August, 1968.

3. During the pendency of the appeal, plaintiff No. I filed a suit claiming possession on several grounds, i. e., bona fide requirement of or personal occupation, arrears of rent, change of user and damage caused to the building by the tenant. During the pendency of the suit, the house in question was transferred by plaintiff No. 1 to plaintiff No. 2 who came to be joined as a party to the suit on 29th September, 1971. Possession was claimed on the ground that there was a change in the user of the premises became though the suit premises were taken for residential purposes the tenant had changed the user of the suit premises by starting a grocery shop in those premises. The grocery shop is said to have been started sometimes in the year I960.

4. The tenant, inter alia, denied that he was in arrears. He pleaded that the premises were not taken only for residence but also for establishing a shop therein since the beginning. The plea of consent and waiver was raised and it was stated that the original landlord had consented to the premises being used for business purposes and, in any case, the previous owner not having objected to the use of the premises for shop purposes and having accepted rent, the previous landlord was deemed to have waived the change of user with the result that the plaintiffs were not entitled to rely upon the alleged change of user. A defence is taken that the premises were primarily being used for residence, i. e., the dominant use of the premises was for residence and not for a shop because the shop has been established only in a small portion of the premises.

5. The trial Court held in favour of the tenant that he was not a wilful defaulter and that the landlord had failed to prove that the premises were required for bona fide personal use in a reasonable manner and further that there was no evidence to show that the defendant had damaged the suit property in any manner. The trial Court, however, holding that the defendant had committed a breach by establishing a shop in a portion of the suit premises despite the fact that it was originally taken for residential purposes, a decree for eviction came to be passed only in respect of a portion of the house to the extent of 7 khans.

6. Both the plaintiffs and the defendant filed appeals against the decree

passed by the trial Court before the appellate Court. It was contended in

appeal that right from the time the premises were taken on lease, the defendant was running a cotton and silk yarn shop in the suit premises till it was sold by Court auction and purchased by plaintiff No. 1 and it was only there

after that the grocery shop was started. The appellate Court found that

there was no documentary evidence on record to indicate that cotton a

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