The opening of a circulating library in one room of the tenanted premises does not amount to a change of user.

JUDGMENT - This is a tenant's writ petition against the order of the learned Resident Deputy Collector, Amravati granting respondent landlady permission to terminate the tenancy of the petitioner on the ground that the petitioner tenant had changed the user of the tenanted premises and it arises out of the following facts.

2. A two room tenement belonging to the landlady was let out to the tenant at the monthly rent of Rs.23. On 27-8-1971, the landlady filed a petition before the Rent Controller at Amravati asking for permission to terminate the tenancy of the tenant on several grounds as follows:

i) That the tenant was a habitual defaulter in the payment of rent;

ii) That the tenant had committed a change of user;

iii) That the tenant had secured alternative accommodation;

iv) That the landlady required the suit premises reasonably and bona fide for her personal use.

The tenant resisted this petition challenging all the grounds mentioned by the landlady in her petition.

3. On a consideration of entire evidence the learned Rent Controller dismissed the application holding on all counts against the landlady. Thereafter the landlady preferred an appeal and this appeal was heard by the learned Resident Deputy Collector at Amravati. The appellate Court concurred with the finding of the Trial Court so far as the contention of habitual default, alternative accommodation for the tenant and bona fide requirement of landlady were concerned, he rejected landlady's petition based on these three grounds. But he disagreed with the trial Court on the ground of change of user and he held that the tenant was guilty of change of user of the residential premises and so he granted permission to the landlady to terminate the tenancy of the tenant on this ground. Being aggrieved by this decision, the tenant has filed this writ petition.

4. It was contended for the landlady that the learned Resident Deputy Collector was right in granting permission to terminate the tenancy on the ground of change of user and Mr. Shelat appearing for the landlady respondent further submitted that he was entitled in this petition to support the finding of the Resident Deputy Collector granting permission to the landlady to terminate the tenancy even on the ground on which the Resident Deputy Collector had not granted permission and urged that the Resident Deputy Collector was wrong in deciding those points against the landlady. Then, the very first question that arose for consideration is whether without filing any petition or any cross-objections, the landlady would be entitled to raise these pleas in this petition. Mr. Shelat appearing for the landlady invited my attention to a decision of a Division Bench of this Court in Special Civil Application No. 577 /72, 578/72 and 579/72 decided sometime prior to 22-2-1980 and 25-2-1980.

5. It appears that these three petitions were filed by tenant feeling aggrieved by the order of Resident Deputy Collector and these three petitions came for decision before Padhye J. Padhye J. made reference to the larger Bench in respect of two questions. We are not concerned with the first question that was referred to the larger Bench by Padhye J. but the second question was as follows:

"Whether the landlady without preferring any appeal or cross-objection can support the order of the Rent Controller or the Resident Deputy Collector by challenging the adverse finding pronounced against him, so far as the other grounds are concerned in a writ petition ?"

The Division Bench consisting of Gadgil and Waikar JJ. held as follows:

"The landlady without preferring any appeal or cross-objections in a writ petition can support the permission that is ultimately granted by the Rent Controller on the Resident Deputy Collector by challenging the adverse findings pronounced on the other ground."

Mr. Deshpande appearing for the petitioner urged that the facts of this ruling are not applicable to the facts of the instant case and therefore the ratio in th

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