A tenant's change of user from commercial to residential use constitutes a breach of tenancy terms under Section 108(o) of the Transfer of Property Act, independent of any proof of damage to the premises.

JUDGMENT :

SANDEEP V. MARNE, J.

1. This petition is filed challenging the judgment and order dated 26 August 1999 passed by the II Additional District & Sessions Judge, Kalyan in Regular Civil Appeal No. 218/1996 dismissing the Appeal and confirming the eviction decree dated 12 January 1994 passed by the Joint Civil Judge Junior Division, Kalyan in Regular Civil Suit No. 57/1981. The Trial Court has decreed the suit filed by Plaintiff-Respondent on the ground of commission of acts contrary to provisions of Section 108(o) of the Transfer Property Act by invoking provisions of Section 13(1)(a) of the Bombay Rent (Hotels and Lodging House Rates Control Act, 1947 (Bombay Rent Act). Aggrieved by the confirmation of eviction decree passed by the Appellate Court, the Petitioner-Original Defendant No. 1 has filed the present petition.

2. Plaintiff is the owner of two shops in House No. 1 in Municipal land No. 28, Tilak Chowk, Kalyan. Out of the said two shops, one shop is the suit premises in which Defendant No. 1 was inducted as monthly tenant for rent of Rs.35/-. Plaintiff instituted Regular Suit No. 57/1981 in the Court of Civil Judge Junior Division, Kalyan contending that Defendant No. 1 was in arrears of rent from 1 March 1980 for which Plaintiff served notice dated 6 October 1980, which was replied by Defendant No. 1 on 21 October 1980, who claimed offering of rent upto October 1980 by money order. It appears that Plaintiff did not accept the money order as the entire arrears of rent were not offered. Plaintiff further claimed that Defendant No. 1 erected permanent structure of loft inside the suit premises thereby endangering the life of the building. Plaintiff also alleged that Defendant No. 1 unauthorisedly sublet the suit premises to Defendant Nos. 2 to 5 without Plaintiff’s consent. It was further claimed in the plaint that Defendant replaced the entry door and while doing so, he removed the pillar thereby causing loss to the premises as well as endangering the structure. It is further alleged that the furnace constructed by Defendant No. 1 inside the suit premises was also endangering the premises and causing nuisance. Plaintiff accordingly sought recovery of possession of the suit premises from the Defendants. The suit was resisted by Defendant No. 1 by filing Written Statement. Additional Written Statement was filed by Defendant Nos. 1 and 2 denying the allegation of unauthorised subletting to Defendant Nos. 3 to 5. It was contended that Defendant Nos. 1 and 2 are real brothers and Defendant No. 3 is their sister, whereas Defendant Nos.4 and 5 are husband and son of Defendant No. 3. That Defendant Nos. 3 to 5 are close relatives. Defendant Nos. 3 to 5 also filed Written Statement contesting the suit.

3. Parties led evidence in support of their respective claims. After considering the pleadings, documentary and oral evidence, the Trial Court proceeded to accept the ground of commission of acts contrary to the provisions of Section 108(o) of the Transfer of Property Act and consequently ordered eviction of Defendant No. 1 on the ground of Section 13(1)(a) of the Bombay Rent Act. The other grounds of willful default, subletting, permanent additions and alterations and nuisance/annoyance were answered against the Plaintiff. Accordingly, all the Defendants were directed to handover possession of the suit premises to Plaintiff by decree dated 12 January 1994. Defendant Nos. 1 and 2 filed Civil Appeal No. 218/1996 in the Court of District Judge, Thane in which Defendant Nos. 3 to 5 were impleaded as proforma Respondents. The Appellate Court has however proceeded to dismiss the Appeal by its judgment and order dated 26 August 1999, which is the subject matter of challenge in the present petition which is filed by Defendant Nos. 1 and 2.

4. During pendency of the petition, Petitioner No. 1 has passed away and accordingly his legal heirs are prosecuting the present petition.

5. Mr. Deshmukh, the learned counsel appearing for the Petiti