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2013 Supreme(Bom) 649
High Court of Judicature at Bombay
S.C. DHARMADHIKARI, J.
Jainath Matadin Chourasia & Another
Versus
Gopikishan Ramgopal Garg & Another
Civil Revision Application No.925 of 2012
Decided on : 18-03-2013
For the Applicants:P.S. Dani, Advocate.
For the Respondents:R.A. Thorat i/by P.J. Thorat, Advocates.
Headnote:MAHARASHTRA RENT CONTROL ACT, 1999 - Section 16(1)(a) - T.P. Act, Sections 107 and 108(o) - Eviction of tenant on ground of change of user.
Where user for residence was changed into commercial by tenant therefore eviction of tenant justified. - In all the cases, thus, the emphasis was on the peculiar factual position and intent of the parties. If there was minor or small deviation from the user, but the user remained essentially the same, then, the eviction was held not be justified, unless other elements of damage or diminishing in value are proved. However, when the change of user is to such an extent that the premises let out for residence were used for commercial purpose or the premises let out for business are utilized for a completely different business activity not agreed or intended by the parties, then, the Supreme Court holds that in such cases there is no requirement of proving damage or diminishing value.
Thus, what one finds is that there is always a distinction made by the Honourable Supreme Court in the sense that the use of the building for the purpose other than for which it was let out, is a ground of eviction. The object is that the parties are bound by the agreement between them including the condition of user of the leased premises. The breach of covenant regarding kind of user of the building is a ground of eviction and therefore, the Honourable Supreme Court relied upon a three-Judge decision in the case of Bishamber Dass Kohli v. Satya Bhalla, (1993) 1 SCC 566. If change in the user of the building is alone significant for constituting a ground of eviction, then, the matter has been approached differently. In the present case, both counsel do not dispute that in our Rent Control Law there is prohibition for using the premises let out for residence as commercial. In the sense change of user is prohibited.
Once the position has been clarified by the Honourable Supreme Court and as noted above, then, there is no conflict or diversion of views or different opinions. There is no question in the case before me of dominant user theory being applied. Once the user throughout was undisputedly for residence and it was changed to commercial as is evident by the concurrent findings of fact which Court does not find to be perverse in any manner, then, there is no substance in this Civil Revision Application. There is no error of jurisdiction and even if the eviction is on the sole ground as held by the lower Appellate Court, namely, on the ground of change of user. In the backdrop of the facts and circumstances and equally the position in law, Court does not find that the jurisdiction has been exercised illegally or with material irregularity, warranting interference in revisional jurisdiction.
1. Rule. The Respondents waive service. By consent, Rule made returnable forthwith.
2. This Civil Revision Application challenges the judgment and decree of the lower Appellate Court in Appeal No.114/2010 dated 28.09.2012.
3. The lower Appellate Court by the order under challenge has proceeded to confirm the judgment and decree of the Trial Court in RAE Suit No.139/2005 dated 28.01.2010 on the ground of change of user of the premises by the present Applicants/ original Defendants.
4. The Trial Judge had decreed the suit by holding that the Respondents have proved that the premises were not used for a period of more than six months prior to the date of filing of the suit and that the Applicant/Defendant No.1 has changed the user of the suit premises and from residential to commercial, that he has acquired alternate residential premises and which are suitable for him and that he had also illegally parted with possession of the premises to the Defendant No.2 in contravention of the provisions of the Rent Control Legislation. Equally, the ground of nuisance and annoyance being caused to the Respondents, is also proved. However, the Trial Court held that the acts of the Applicants/ Defendants have not resulted in any damage to the suit premises nor has reduced life of the same although these acts came within the purview of Section 108(o) of the Transfer of Property Act, 1882. Lastly, the ground of bonafide and reasonable requirement of the landlord is also held to be proved.
5. It is aggrieved by such a decree that appeal was filed before the Appellate Bench and which appeal has been allowed in part. As a result of which, the decree of the Trial Court has been set aside to a substantial extent, but is confirmed on the ground of change of user of the suit premises by the Applicants.
6. Before proceeding to consider rival contentions, it would be proper to note the allegations in the plaint with regard to change of user, which read as under:-
“6. The Plaintiffs state that the Defendant No.2 above named has been using the said premises for the purpose of storing cloth packages and is conducting the said premises for the purpose of his business of cloth. The Plaintiffs state that heavy packages and bales of clothes are being stored in the suit premises and the Defendant No.2 has also been keeping big packages and bales of cloth in the common passage and he is also storing the said bales in the common passage with the result that there is nuisance and annoyance caused to the Plaintiffs and to the neighbouring tenants and occupiers and free ingress and egress to and from their respective premises is being hampered and in fact obstructed.
7. The Plaintiffs further states that during the mango seasons the Defendant No.2 conducts business of storage and sell of mango and heavy crates of mango are being stored by the Defendant No.2 in the suit premises and also in the open passage. The Plaintiffs state that several persons come to the property for the purpose of purchasing cloth and mangoes during the season due to which there is excessive user of the property. The Plaintiffs state that the said property is about 100 years old and due to the storage of heavy cloth bales and mango crates the property is being deteriorated and heavy damage is caused to the same. The Plaintiffs state that due to constant storage and removal of heavy bales and crates the flooring of the suit premises and that of the passage outside has been damaged and the surface thereof has become uneven. Further as there are heavy crates the workers of the Defendant No.2 drag the said crates on the floor, the passage and also down the staircase which has resulted in damage to the flooring of the premises, common passage and also the staircase. There is also nuisance caused due to the dry hay and grass and also used papers falling out of the crates and being strewn all over the property. Further rotten mangoes are also weeded out and strewn in the passage which inv
