JUDGMENT:- Being aggrieved by the judgment and decree dated 24th June 1992 passed by the 8th Additional District Judge, Thane in Regular Civil Appeal No.142 of 1991 by which the lower Appellate Court reversed the judgment and decree dated 11th April 1991 passed by the Trial Court in Regular Civil Suit No. 56 of 1989 and dismissed the suit that was decreed by the Trial Court.

2. In support of the appeal, the learned counsel for the Appellant landlord submitted that the provisions of the Bombay Rent Act do not have any application to the suit premises and therefore the Appellant landlord had issued a notice to the Respondent Defendant under section 106 of the Transfer of Property Act, 1882 (TP Act) terminating the tenancy of the Respondent and then since the premises were not vacated, the suit was brought by the Appellant Plaintiff. The learned Trial Judge held that the Appellant Plaintiff was entitled to possession of the suit property and also that rent was due from 1989 till possession. He submitted that the Trial Judge decreed the suit and held that the notice under section 106 of the TP Act that was issued by the Plaintiff Appellant was legal and valid and accordingly directed the delivery of vacant and peaceful possession of the suit property to the Appellant Plaintiff so also the decree for rent was made. The lower Appellate Court, however, according to the learned counsel for the Appellant, wrongly held that the notice under section 106 of the TP Act was not legal and that the Trial Court was wrong in passing the decree for possession. The lower Appellate Court also wrongly held that the Defendant was not using the premises for last two years before filing of the suit. The only reason why the lower Appellate Court held the notice under section 106 of the TP Act as illegal is that the premises were given for a bakery and that by mere use of the word "bakery" means manufacturing unit and therefore there is necessity of six months notice for termination of tenancy. According to him even if monthly rent was being paid during the tenancy, the same was subject to the provisions of law. The learned counsel for the Appellant then submitted that as per the local usage, the tenancy, even if for bakery, was a monthly tenancy and that is admitted and proved and there was no reason for the lower Appellate Court to assume that the lease was for manufacturing purpose in the absence of any specific details or evidence. He, therefore submitted that the decree passed by the Trial Judge is required to be restored by reversing the judgment and decree passed by the lower Appellate Court.

3. Per contra, the learned counsel for the Respondent tenant supported the impugned judgment and decree made by the lower Appellate Court and submitted that the Appellant Plaintiff himself pleaded that the premises were given for a bakery and therefore, "bakery" necessarily means a manufacturing unit and if that is so, the lower Appellate Court was right in holding that the provisions of section 106 of the TP Act in relation to the manufacturing purpose prevail over the agreement or conduct of the parties, if any. He, then, submitted that therefore, the suit was rightly dismissed by the lower Appellate Court. In the alternative, he prayed for some period to vacate the suit premises.

4. Upon hearing the learned counsel for the rival parties, I frame the following substantial questions of law:

Question :

a) Whether it is proved that the agreement of tenancy of the suit premises was for running a manufacturing unit, namely bakery ?

b) Whether the lower Appellate Court committed an error in not finding that the Appellant Plaintiff had specifically pleaded a case of usage as contemplated under section 106 of the TP Act providing for monthly lease duly agreed between the parties as per usage and consequently the notice of termination of tenancy was legal and valid?

c) What order?

Answer:

a) No.

b) Yes.

c) Second Appeal is allowed.

5. I have perused the plaint averments. Parag

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