{"id":198772,"date":"2008-07-11T00:00:00","date_gmt":"2008-07-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mangaldham-vs-shriram-dattatraya-kulkarni-on-11-july-2008"},"modified":"2017-09-30T06:39:04","modified_gmt":"2017-09-30T01:09:04","slug":"mangaldham-vs-shriram-dattatraya-kulkarni-on-11-july-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mangaldham-vs-shriram-dattatraya-kulkarni-on-11-july-2008","title":{"rendered":"Mangaldham vs Shriram Dattatraya Kulkarni on 11 July, 2008"},"content":{"rendered":"
Bombay High Court<\/div>\n
Mangaldham vs Shriram Dattatraya Kulkarni on 11 July, 2008<\/div>\n
Bench: A.M. Khanwilkar<\/div>\n
           IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n                  CIVIL APPELLATE JURISDICTION\n\n                  WRIT PETITION NO.986 OF 1990\n\n\n\n\n                                                                   \n     Ramesh Ganesh Kange, adult,\n     occupation landlord, residing at\n\n\n\n\n                                           \n     Mangaldham, Vadavali Section,               ...Petitioner\n     Ambernath, Dist.Thane.                     (Ori.Plaintiff)\n\n            Versus\n\n\n\n\n                                          \n     Shriram Dattatraya Kulkarni,\n     since deceased by his heirs\n     and legal representatives:\n\n     1(a) Shashikala Shriram Kulkarni,\n\n\n\n\n                               \n     1(b) Santosh Shriram Kulkarni,\n     1(c) Prasanna Shriram Kulkarni,\n                  \n     All R\/at 66, Yogayog Co-op.Hsg.Soc.,\n     Near Audumbar School, Vadavali,\n     Ambarnath - 421 501.                 ...Respondents\n                 \n                               ......\n\n     Mr.Ashutosh Gole i\/b Mr.R.S.Apte for Petitioner.\n\n     Ms.Gauri Godse for Respondent No.1(a).\n      \n   \n\n\n\n                               ......\n\n                              CORAM:    A.M.KHANWILKAR, J.\n\n                                        JULY 11, 2008.\n\n\n\n\n\n     JUDGMENT :\n<\/pre>\n
     1.         This   Writ   Petition under Article 227                of<\/p>\n
     the   Constitution    of India takes exception to                 the<\/p>\n
     Judgment    and Decree passed by the VIth            Additional<\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 13:35:17 :::<\/span>
\n                                    :    2   :\n<\/p>\n
     District      Judge, Thane dated September 28, 1998                      in<\/p>\n
     Civil    Appeal No.259 of 1986 which in turn reverses<\/p>\n
     the    Judgment      and Decree passed by the IVth                  Joint<\/p>\n
     Civil     Judge,       Junior       Division        and        Judicial<\/p>\n
     Magistrate, First Class, Ulhasnagar dated April 25,<\/p>\n
     1986 in Regular Civil Suit No.33 of 1984.\n<\/p>\n
     2.         The premises in question is house property<\/p>\n
     known    as ‘Mangaldham’ situated at Vadavli                     Section<\/p>\n
     at    Ambernath within the limits of Kalyan Municipal<\/p>\n
     Corporation.          It    is    common     ground        that         the<\/p>\n
     Petitioner<\/p>\n
                     is    the owner and landlord of the                   suit<\/p>\n
     premises,      consisting of one room and verandah, who<\/p>\n
     in    turn had inducted Respondent as monthly                     tenant<\/p>\n
     on    agreed rent of Rs.22\/- (Rupees Twenty-two)                        per<\/p>\n
     month    besides      the    permitted      increases.            It     is<\/p>\n
     admitted      position      that the premises were let                  out<\/p>\n
     only       for         residential             purpose.                 The<\/p>\n
     Petitioner\/landlord instituted Suit for recovery of<\/p>\n
     possession      of    suit premises and mesne profits                    in<\/p>\n
     the     Court    of    Civil       Judge,    Junior          Division,<\/p>\n
     Ulhasnagar on the ground that the Respondent\/tenant<\/p>\n
     has    used the suit premises for purpose other                       than<\/p>\n
     that    for    which it was leased.          It is the case              of<\/p>\n
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\n                                    :    3    :\n<\/p>\n
     the     Petitioner\/landlord             that        in       1982,         the<\/p>\n
     Respondent’s      son started the business of                     electric<\/p>\n
     motor    winding    and    repairing under the                  name       and<\/p>\n
     style    as    ‘Advance    Electronics’              from       the      suit<\/p>\n
     premises      causing    change of user of               the      premises<\/p>\n
     other    than    for which the same were let out.                          The<\/p>\n
     claim of the Petitioner\/landlord not only stood the<\/p>\n
     trial    before    the Civil Judge, Junior Division                         at<\/p>\n
     Ulhasnagar       but    has    also         been     upheld         by     the<\/p>\n
     Appellate Court in the impugned Judgment.                         In that,<\/p>\n
     even    the Appellate Court has rejected the stand of<\/p>\n
     the<\/p>\n
            Respondent\/tenant          that the said business                   was<\/p>\n
     started    with    the    consent of the             landlord.             The<\/p>\n
     Appellate Court in the impugned Judgment has upheld<\/p>\n
     the    finding    of fact recorded by the                  Trial       Court<\/p>\n
     that    business of electric and motor rewinding                           and<\/p>\n
     repairing      under    the    name and         style        as     Advance<\/p>\n
     Electronics was commenced from the suit premises on<\/p>\n
     9th     November       1982    as      is    evident          from         the<\/p>\n
     registration of the business as Advance Electronics<\/p>\n
     under the Bombay Shops and Establishments Act, 1948<\/p>\n
     (hereinafter        referred           to       as       ‘Shops            and<\/p>\n
     Establishments      Act’).         That business was                started<\/p>\n
     after    the Respondent’s son had taken education                           of<\/p>\n
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\n                                   :    4   :\n<\/p>\n
     Electrical      Engineering       in I.T.I.         The      Appellate<\/p>\n
     Court    has also considered the Respondent’s defence<\/p>\n
     that    his son started living separately since 1982.\n<\/p>\n
     Both    the   Courts     have      concurrently           found       that<\/p>\n
     nevertheless      the business in the name and style as<\/p>\n
     ‘Advance      Electronics’         was      continued            as      is<\/p>\n
     established      from    the licence fee paid in                 advance<\/p>\n
     till    1987 which is for period even after the                       Suit<\/p>\n
     for    eviction was instituted in the year 1984.                        The<\/p>\n
     Appellate Court has also found that there was other<\/p>\n
     circumstances       brought      on record to indicate                that<\/p>\n
     the    work<\/p>\n
                   of repairing of T.V., Radio,                 etc.         was<\/p>\n
     being    carried out in the suit premises, which fact<\/p>\n
     was    corroborated      from     the     evidence        of     Gajanan<\/p>\n
     Mulgaonkar,      the    Shop Inspector.          Insofar         as     the<\/p>\n
     abovesaid     findings     recorded        by    the      two     Courts<\/p>\n
     below,    the    correctness thereof is not                challenged<\/p>\n
     before this Court.\n<\/p>\n
     3.         Even      after    recording          the       abovenoted<\/p>\n
     findings,     the Appellate Court, however,                  proceeded<\/p>\n
     to upset the decree of eviction passed by the Trial<\/p>\n
     Court    on   the    reasoning that the           Respondent            was<\/p>\n
     doing    that    business     in his       leisure        time      after<\/p>\n
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\n                                     :   5    :\n<\/p>\n
     office       hours for additional source of income.                       The<\/p>\n
     Appellate          Court    then   went     on     to       hold        that<\/p>\n
     admittedly         the   Defendant continued to stay                   along<\/p>\n
     with     his family members in the suit premises.                          It<\/p>\n
     has     found      that the work of repairing was                  carried<\/p>\n
     out     in    front portion of the suit             premises           (some<\/p>\n
     portion of verandah).           The Appellate Court has then<\/p>\n
     found     that      the work of repairing in question                     was<\/p>\n
     not carried out as a full-fledge business for whole<\/p>\n
     day, but must have been carried on by the Defendant<\/p>\n
     in     his    leisure      time after the office             hours        for<\/p>\n
     additional<\/p>\n
                        source    of income.      On these          findings,<\/p>\n
     the     Appellate Court relying on the decision in the<\/p>\n
     case of C.Colaco vs.           Urban D’Silva reported in AIR<\/p>\n
     1970    Mysore 297;         Jugraj Jain v.          T.R.Ambikapathi<\/p>\n
     Pillai reported in 1959 Vol.II Mad.L.J.Reports 240;\n<\/p>\n
     Harmohan      Das Bagai vs.        T.P.Gupta reported in 1984<\/p>\n
     RLR    625;        and Sant Ram vs.         Rajinder Lal           &    Ors.<\/a>\n<\/p>\n
     reported in AIR 1978 SC 1601 proceeded to hold that<\/p>\n
     inspite       of     finding           recorded         against           the<\/p>\n
     Respondent\/tenant,           it did not amount to change                   of<\/p>\n
     user    of the premises as contemplated under Section<\/p>\n
     108(o) of the Transfer of Property Act (hereinafter<\/p>\n
     referred      to    as     ‘the T.P.     Act’)      and      actionable<\/p>\n
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\n                                  :    6   :\n<\/p>\n
     under    Section 13(1)(a) of the Bombay Rents, Hotels<\/p>\n
     and   Lodging     House Rates Control Act              (hereinafter<\/p>\n
     referred    to    as ‘the Bombay Rent Act’).                  In     this<\/p>\n
     Petition,    the correctness of the said view of                       the<\/p>\n
     Appellate Court is put in issue.\n<\/p>\n
     4.         Before      proceeding     to examine          the      rival<\/p>\n
     submissions,      it    would    be apposite to           advert        to<\/p>\n
     relevant    provisions.      Section 13(1)(a) of the Rent<\/p>\n
     Act   invoked by the Petitioner\/landlord for seeking<\/p>\n
     decree   of eviction against Respondent\/tenant reads<\/p>\n
     thus:\n<\/p>\n
                “13.(1) Notwithstanding anything contained
\n                in this Act but subject to the provisions
\n                of sections 15 and 15A, a landlord shall
\n                be entitled to recover possession of any<\/p>\n
                premises if the Court is satisfied-\n<\/p><\/blockquote>\n
                (a) that the tenant has committed any act
\n                contrary to the provision of clause (O) of
\n                section 108 of the Transfer of Property
\n                Act, 1882″.\n<\/p><\/blockquote>\n
     5.         As     Section       13(1)(a)        refers        to       the<\/p>\n
     provisions      of Section 108 of the T.P.Act, it                    will<\/p>\n
     be    apposite to reproduce the said provision, which<\/p>\n
     reads thus:\n<\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 13:35:17 :::<\/span><\/p>\n
                     :   7   :\n<\/p>\n
       “108.   Rights and liabilities of lessor
\n       and lessee.- In the absence of a contract<\/p>\n
       or local usage to the contrary, the lessor
\n       and the lessee of immoveable property, as
\n       against one another, respectively, possess<\/p>\n
       the   rights and are     subject to    the
\n       liabilities mentioned in the rules next
\n       following,   or such of     them as    are
\n       applicable to the property leased:-\n<\/p>\n
       (A) Rights and Liabilities of the Lessor<\/p>\n
           ………………………………\n<\/p>\n
       (B) Rights and Liabilities of the Lessee<\/p>\n
       (d) If during the continuance of the lease
\n       any accession is made to the property,<\/p>\n
       such   accession (subject to     the   law
\n       relating to alluvion for the time being in
\n       force) shall be deemed to be comprised in
\n       the lease:\n<\/p>\n
       (e) if by fire, tempest or flood, or
\n       violence of any army or of a mob, or other
\n       irresistible force, any material part of
\n       the   property be    wholly destroyed or
\n       rendered substantially    and permanently<\/p>\n
       unfit for the purposes for which it was
\n       let, the lease shall, at the option of the<\/p>\n
       lessee, be void:\n<\/p>\n
       Provided   that,  if   the   inquiry   be
\n       occasioned by the wrongful act or default
\n       of the lessee, he shall be entitled to<\/p>\n
       avail himself of the benefit of this
\n       provision:\n<\/p>\n
       (f) if the lessor neglects to make, within
\n       a   reasonable time    after notice, any
\n       repairs which he is bound to make to the<\/p>\n
       property, the lessee may make the same
\n       himself, and deduct the expense of such
\n       repairs with interest from the rent, or
\n       otherwise recover it from the lessor:\n<\/p>\n
                                ::: Downloaded on – 09\/06\/2013 13:35:17 :::<\/span><\/p>\n
                    :   8   :\n<\/p>\n
       (g) if the lessor neglects to make any
\n       payment which he is bound to make, and
\n       which, if not made by him, is recoverable
\n       from the lessee or against the property,<\/p>\n
       the lessee may make such payment himself,
\n       and deduct it with interest from the rent,
\n       or otherwise recover it from the lessor:\n<\/p>\n
       (h)   the lessee may     even after    the
\n       determination of the lease remove, at any
\n       time whilst he is in possession of the
\n       property leased but not afterwards all<\/p>\n
       things which he has attached to the earth;
\n       provided he leaves the property in the
\n       state in which he received it:\n<\/p>\n
       (i) when a lease of uncertain duration<\/p>\n
       determines by any means except the fault
\n       of   the   lessee, he     or   his   legal
\n       representative is entitled to all the<\/p>\n
       crops planted or sown by the lessee and
\n       growing upon the property when the lease
\n       determines, and to free ingress and egress
\n       to gather and carry them:\n<\/p>\n
       (j) the lessee may transfer absolutely or
\n       by way of mortgage or sub-lease the whole
\n       or any part of      his interest in the
\n       property, and any     transferee of such
\n       interest or part may again transfer it.\n<\/p>\n
       The lessee shall not, by reason only of
\n       such transfer, cease to be subject to any<\/p>\n
       of the liabilities attaching to the lease:\n<\/p>\n
       Nothing in this clause shall be deemed to
\n       authorise    a    tenant     having    an
\n       untransferable right of occupancy, the<\/p>\n
       farmer of an estate in respect of which
\n       default has been made in paying revenue,
\n       or the lessee of an estate under the
\n       management of a Court of Wards, to assign
\n       his interest as such tenant, farmer or
\n       lessee:\n<\/p>\n
       (k) the lessee is bound to disclose to the
\n       lessor any fact as to the nature or extent
\n       of the interest which the lessee is about<\/p>\n
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\n                    :   9   :\n<\/p>\n
       to take of which the lessee is, and the
\n       lessor is not, aware, and which materially
\n       increases the value of such interest:\n<\/p>\n
       (l) the lessee is bound to pay or tender,<\/p>\n
       at the proper time and place, the premium
\n       or rent to the lessor or his agent in this
\n       behalf:\n<\/p>\n
       (m) the lessee is bound to keep, and on
\n       the termination of the lease to restore,
\n       the property in as good condition as it
\n       was in at the time when he was put in<\/p>\n
       possession, subject only to the changes
\n       caused by reasonable wear and tear or
\n       irresistible force, and to allow       the
\n       lessor and his agents, at all reasonable
\n       times during the term, to enter upon the<\/p>\n
       property and inspect the condition thereof
\n       and give or leave notice of any defect in
\n       such condition; and, when such defect has<\/p>\n
       been caused by any act or default on the
\n       part of the lessee,      his servants or
\n       agents, he is bound to make it good within
\n       three months after such notice has been<\/p>\n
       given or left:\n<\/p>\n
       (n) if the lessee becomes aware of any
\n       proceeding to recover the property or any
\n       part thereof, or of any encroachment made
\n       upon,   or any    interference with, the<\/p>\n
       lessor’s rights concerning such property,
\n       he is bound to give, with reasonable<\/p>\n
       diligence, notice thereof to the lessor:\n<\/p>\n
       (o) the lessee may use the property and
\n       its products (if any) as a person of
\n       ordinary prudence would use them if they<\/p>\n
       were his own; but he must not use, or
\n       permit another to use, the property for a
\n       purpose other than that for which it was
\n       leased, or fell [or sell] timber, pull
\n       down or damage buildings [belonging to the
\n       lessor, or] work mines or quarries not<\/p>\n
       open when the lease was granted, or commit
\n       any other act which is destructive or
\n       permanently injurious thereto:\n<\/p>\n
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                                    :   10   :\n<\/p><\/blockquote>\n
                  (p) he must not, without the lessor’s
\n                  consent,   erect on     the property any
\n                  permanent    structure,      except  for
\n                  agricultural purposes:\n<\/p><\/blockquote>\n
                  (q) on the determination of the lease, the
\n                  lessee is bound to put the lessor into
\n                  possession of the property”.\n<\/p><\/blockquote>\n
     6.           In   addition to the above said provisions,<\/p>\n
     it    would be useful to advert to section 25 of                       the<\/p>\n
     Bombay Rent Act, which reads thus:\n<\/p>\n
                  “25.   (1) A landlord shall not use or
\n                  permit to be used for a non-residential
\n                  purpose any premises which on the date of<\/p>\n
                  the coming into operation of this Act were
\n                  used for a residential purpose.\n<\/p><\/blockquote>\n
                  (2) Any landlord    who contravenes the<\/p>\n
                  provisions of sub-section (1) shall, on
\n                  conviction,   be       punishable   with
\n                  imprisonment for a term which may extend
\n                  to three months or with fine or with
\n                  both”.\n<\/p><\/blockquote>\n
     7.           As Section 13(1)(a) of the Bombay Rent Act<\/p>\n
     refers    to the provisions of Section 108(o) of                       the<\/p>\n
     T.P.     Act,     the   latter      stands      incorporated            in<\/p>\n
     Section      13(1)(a)    of    the Bombay       Rent      Act.         The<\/p>\n
     question whether the landlord in the fact situation<\/p>\n
     of    this    case has succeeded in making out                  a    case<\/p>\n
     that the suit premises have been used by the tenant<\/p>\n
     for    the    purpose other than that for which it                     was<\/p>\n
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\n                                   :    11    :\n<\/p>\n
     leased will have to be considered in the context of<\/p>\n
     the    concurrent      finding     of fact recorded              by     the<\/p>\n
     courts    below that the suit premises was leased out<\/p>\n
     for residence only.         Thus, if it is found that suit<\/p>\n
     premises      were    used for any other          non-residential<\/p>\n
     activity      or for that matter part time business, be<\/p>\n
     it    in small portion of the premises, would attract<\/p>\n
     the    rigours of Section 13(1)(a) of the Bombay Rent<\/p>\n
     Act inviting decree of eviction against the tenant.\n<\/p>\n
     The    Appellate Court relying on decisions                    referred<\/p>\n
     to    above    has however, answered the issue                   against<\/p>\n
     the<\/p>\n
            Petitioner\/landlord.            We    shall        straightway<\/p>\n
     first refer to the said decisions.\n<\/p>\n
     8.         The first decision is of the High Court of<\/p>\n
     Mysore    in    the case of C.Colaco (supra).                  In     that<\/p>\n
     case,    the    Respondent       was carrying         on     tailoring<\/p>\n
     business      in    the suit premises let out to him                    for<\/p>\n
     residential        purposes.     The Mysore High Court posed<\/p>\n
     the    question      for   consideration          that       if     in     a<\/p>\n
     premises      leased out for residential purposes to                       a<\/p>\n
     professional        man, the said person carries on                   some<\/p>\n
     professional        work   in    his residence,           whether        he<\/p>\n
     would    be violating Sub-clause (o) of Section                       108?\n<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 13:35:17 :::<\/span><\/p>\n
                                       :   12   :\n<\/p>\n
     That     question        has    been answered relying               on     the<\/p>\n
     dictum       of    the    Madras High Court in the                case      of<\/p>\n
     Jugraj Jain (supra) and of the English Court in the<\/p>\n
     case of Vickery v.              Martin reported in (1944) 2 All<\/p>\n
     ER     167,    which in turn refers to the                 observations<\/p>\n
     made    in     the case of Hicks v.            Snook       reported         in<\/p>\n
     (1928) 93 JP 55.\n<\/p>\n
                  55            The Mysore High Court found as of<\/p>\n
     fact     that      the     evidence       indicated           that         the<\/p>\n
     Respondent         was    doing tailoring work in his                  house<\/p>\n
     since    about       seven months and his            customers           were<\/p>\n
     visiting       his house, but no board was put up in the<\/p>\n
     house<\/p>\n
              about business of carrying on profession                           of<\/p>\n
     tailoring.         The     Court found as of fact               that       the<\/p>\n
     Respondent was doing tailoring work in his house in<\/p>\n
     his    spare time after closure of his shop which was<\/p>\n
     elsewhere.         The     Court     further        found       that       the<\/p>\n
     Respondent         did not put a board in his                residential<\/p>\n
     house or made any structural alterations.                         Applying<\/p>\n
     the    said test, the landlord’s claim for possession<\/p>\n
     of the premises was turned down.<\/p>\n
\n\n\n\n     9.            In   the     case of Jugraj Jain (supra),                    the\n\n\n\n\n\n     suit    premises         were let out for residence but                    the\n\n     tenant     shifted        his     pawn-broker's          business          and\n\n\n\n\n                                                    ::: Downloaded on - 09\/06\/2013 13:35:17 :::<\/span>\n                                        :    13    :\n\n\n\n<\/pre>\n
     started conducting the same from the suit premises.\n<\/p>\n
     The    Madras        High Court in the first                place       opined<\/p>\n
     that the suit premises were let out for residential<\/p>\n
     purposes     and the tenant converted a portion of the<\/p>\n
     premises     for non-residential purposes.                       The Madras<\/p>\n
     High     Court         referring        to       earlier         decisions,<\/p>\n
     proceeded        to    hold that the tenant cannot                     convert<\/p>\n
     even    a   portion         of his residential house                   into      a<\/p>\n
     shop,    or allow a whole army of people who want                              to<\/p>\n
     pawn    their        articles, costly and cheap, small                        and<\/p>\n
     big    in   his residential premises,                   converting            the<\/p>\n
     residential
\n                       ig   premises          practically               into          a<\/p>\n
     pawnbroker’s          shop.       It is further held that                    such<\/p>\n
     business     should         not be operated in a                residential<\/p>\n
     premises,         causing         nuisance        to      the        landlord<\/p>\n
     occupying        a    portion of the house, but                  should        be<\/p>\n
     carried      on       only    in       separate         non-residential<\/p>\n
     premises.\n<\/p>\n
     10.         Insofar         as the case of Harmohan Das Bagai<\/p>\n
     (supra)     is       concerned,        the Delhi High            Court        was<\/p>\n
     concerned with the premises let out for residential<\/p>\n
     purposes     only,          but       used    for       non-residential<\/p>\n
     purposes    by        the    tenant.        The Court         went      on     to<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 13:35:17 :::<\/span>
\n                                       :     14   :\n<\/p>\n
     restate      the dictum in the case of Dr.Gopal Dass v.\n<\/p>\n
     Dr.S.K.Bhardwaj           of     the    Apex     Court        that        where<\/p>\n
     premises are let for residential purposes and it is<\/p>\n
     shown that they are used by the tenant incidentally<\/p>\n
     for    commercial,         professional         or    other        purposes<\/p>\n
     “with the consent of the landlord”, the landlord is<\/p>\n
     not    entitled to eject the tenant even if he proves<\/p>\n
     that    he    needs       the     premises       bonafide          for      his<\/p>\n
     personal      use       because the premises have                by     their<\/p>\n
     user    ceased      to     be premises let           for      residential<\/p>\n
     proposes      alone.        In    the fact situation               of     that<\/p>\n
     case,<\/p>\n
              however,         the    Court in Paragraph 5                of     its<\/p>\n
     decision, recorded a clear finding that there is no<\/p>\n
     credible      evidence         that the suit premises were                   in<\/p>\n
     fact used for non-residential purposes.\n<\/p>\n
     11.          The    Appellate Court has then adverted                        to<\/p>\n
     the    decision of the Apex Court in the case of Sant<\/p>\n
     Ram     (supra),        which had occasion to deal with                     the<\/p>\n
     provisions         of    East Punjab Urban Rent               Restriction<\/p>\n
     Act,    1949       (hereinafter referred to as                 ‘the       East<\/p>\n
     Punjab       Act’).             While       interpreting              Section<\/p>\n
     13(2)(ii)(b) of the East Punjab Act, the Apex Court<\/p>\n
     went    on    to observe that it is impossible to                         hold<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 13:35:17 :::<\/span>
\n                                     :    15    :\n<\/p>\n
     that    the    tenant who takes out petty premises                          for<\/p>\n
     carrying      on    a small trade also stays in the                       rear<\/p>\n
     portion,      cooks      and   eats,       he      so       disastrously<\/p>\n
     perverts      the purpose of the lease.                 It is        further<\/p>\n
     held that a different purpose in the context is not<\/p>\n
     minor       variations      but     majuscule           in       mode        of<\/p>\n
     enjoyment.         It    should     not    be a case           of     a     man<\/p>\n
     switching      over to a canteen business.                     Commenting<\/p>\n
     on    the    facts      of that case, the Apex                Court       then<\/p>\n
     observed that this is not a case of a man switching<\/p>\n
     over    to    a    canteen business of closing                   down       the<\/p>\n
     cobbler      shop
\n                        igand    converting        the       place        into      a<\/p>\n
     residential accommodation.               It is further held that<\/p>\n
     the common case is that the cobbler continued to be<\/p>\n
     a    cobbler and stayed in the shop at night, on days<\/p>\n
     when    he was running his shop but left for his home<\/p>\n
     on shop holidays.\n<\/p>\n
     12.          Referring      to the aforesaid decisions, the<\/p>\n
     Appellate      Court proceeded to hold that the                       tenant<\/p>\n
     in    the    present      case     was     not       carrying         on       a<\/p>\n
     full-fledged         electronic       business          in     the        suit<\/p>\n
     premises but was carrying on some repair activities<\/p>\n
     during his leisure time after office hours in order<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 13:35:17 :::<\/span>
\n                                      :    16    :\n<\/p>\n
     to    have some additional income in a small                         portion<\/p>\n
     of the suit premises while maintaining the dominant<\/p>\n
     user    of the suit premises for residential purpose.\n<\/p>\n
     The    view so taken, though attractive at the                          first<\/p>\n
     blush,      cannot be countenanced having regard to the<\/p>\n
     scheme      of    the provisions of the Bombay Rent                       Act.\n<\/p>\n
     Insofar      as    the      Bombay Rent        Act    provisions            are<\/p>\n
     concerned,        it    matters not that the              premises          are<\/p>\n
     still      being used also for the purpose for which it<\/p>\n
     was    originally let, especially when the “lease                            is<\/p>\n
     for    the purpose of residence only”.                    For, if it is<\/p>\n
     a<\/p>\n
          lease for residence created after the                       enactment<\/p>\n
     of    the Bombay Rent Act, there is clear prohibition<\/p>\n
     of    not    using such premises for a                non-residential<\/p>\n
     purpose.      That bar is created on account of Section<\/p>\n
     25    of    the Bombay Rent Act, which provision is                          to<\/p>\n
     effectuate        public policy.          Significantly, even                if<\/p>\n
     the    landlord were to consent for change of user of<\/p>\n
     the premises, let out only for residence to be used<\/p>\n
     also    for      non-residential purpose, that                   would       be<\/p>\n
     impermissible          in    view of Section 25 of               the      Rent<\/p>\n
     Act.       This aspect has been considered by our                         High<\/p>\n
     Court      in the case of Bansilal Rampratap Rathi                          vs.<\/p>\n
     Suratsing        Chandanmal      &    Ors.       reported          in     1982<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 13:35:17 :::<\/span>
\n                                   :   17    :\n<\/p>\n
     Mh.L.J.    628.\n                628        The only question considered in that\n\n     case    was    whether the tenant had brought                  about       a\n\n     change    in    the    user of the      premises          which       were\n\n\n\n\n                                                                          \n<\/pre>\n
     originally taken only for the purpose of residence.\n<\/p>\n
     The    tenant    later on used the premises                given        for<\/p>\n
     residential      purpose     for starting a           grocery         shop<\/p>\n
     therein.       This Court on considering the provisions<\/p>\n
     of Section 25 proceeded to hold that it is clear on<\/p>\n
     the    reading of provisions of Section 25 that it is<\/p>\n
     prohibitory      in    character      and      operates          as      an<\/p>\n
     injunction      against     the landlord and prevents                   him<\/p>\n
     from<\/p>\n
             using or permitting to be used premises which<\/p>\n
     are    used for a residential purpose on the date                        of<\/p>\n
     coming into force of the Bombay Rent Act to be used<\/p>\n
     for    a non-residential purpose.            Even in that case,<\/p>\n
     it    was argued that out of house area of 30                     khans,<\/p>\n
     only    accommodation       to the extent of 10 khans                   was<\/p>\n
     being    utilised      for non-residential purposes                   and,<\/p>\n
     therefore,      the    dominant    use       of     the        premises<\/p>\n
     continued      to    be   for    residential          purposes          not<\/p>\n
     attracting the rigours of Section 25(1) of the Rent<\/p>\n
     Act.     That contention has been rejected by holding<\/p>\n
     that    having      regard to the sweep of Section                  25(1)<\/p>\n
     and its object, the question of either dominant use<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 13:35:17 :::<\/span>
\n                                      :    18   :\n<\/p>\n
     or    ancillary        use of the premises           becomes         wholly<\/p>\n
     irrelevant.        The Court then went on to observe that<\/p>\n
     even    otherwise, mere extent of accommodation                          will<\/p>\n
     not    be very relevant.            The principle expounded                 in<\/p>\n
     this decision applies proprio vigore to the case on<\/p>\n
     hand.       The    fact    that      only a     small        portion        of<\/p>\n
     verandah      was used for non-residential activity for<\/p>\n
     carrying      repairs      of    TV, Radio, etc.             was     of     no<\/p>\n
     consequence.           Significantly, in the present                   case,<\/p>\n
     it     is    admitted      position,          that       license           for<\/p>\n
     conducting        such    business was obtained               under        the<\/p>\n
     provisions<\/p>\n
                       of    the Shops and         Establishments             Act,<\/p>\n
     which was valid till 1987.                The suit has been filed<\/p>\n
     in the year 1984 praying for possession of the suit<\/p>\n
     premises      on    the    ground      of     breach       of       Section<\/p>\n
     13(1)(a)      of    the Bombay Rent Act.             The      fact       that<\/p>\n
     such    activity        was carried on only during                  leisure<\/p>\n
     time    by    the Respondent\/tenant or               for      additional<\/p>\n
     source      of    income    can be no         defence.          The      fact<\/p>\n
     remains      that the suit premises which were let                         out<\/p>\n
     for    residential use only were being used also                           for<\/p>\n
     non-residential purposes thereby attracting Section<\/p>\n
     13(1)(a)      read with Section 25 of the Rent Act.                         To<\/p>\n
     overlook such mischief on the specious reasoning of<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 13:35:17 :::<\/span>
\n                                       :    19   :\n<\/p>\n
     dominant       user of the premises continuing to be one<\/p>\n
     for    residence,        would       be negating        not      only       the<\/p>\n
     rigours       of section 13(1)(a) of the Bombay Rent Act<\/p>\n
     r\/w    Section       108(o)      of     the     T.P.Act,         but      more<\/p>\n
     importantly the prohibition under Section 25 of the<\/p>\n
     Bombay       Rent    Act.      The decisions which             have       been<\/p>\n
     relied       by    the Appellate Court referred to                    above,<\/p>\n
     can     be        distinguished        keeping         in      mind         the<\/p>\n
     legislative         scheme      and intent of the Bombay                  Rent<\/p>\n
     Act.\n<\/p>\n
     13.           It<\/p>\n
                         will     be useful to advert              to     another<\/p>\n
     decision       of    our     High     Court      in     the      case        of<\/p>\n
     Kasturchand         Panachand        Doshi &     Ors.         vs.Yeshwant<\/p>\n
     Vinayak      Sainkar & Anr.           reported in 1980             Bom.C.R.\n<\/p>\n
     424.      In      that   case, the rent          note       specifically<\/p>\n
     mentioned         that   the    tenant         shall      conduct           the<\/p>\n
     business of milk in the suit premises.                        The tenant,<\/p>\n
     however,       later on, started using the suit premises<\/p>\n
     for    the     purpose of workshop by              installing           heavy<\/p>\n
     machinery         therein.     While noticing the purport                    of<\/p>\n
     Section      13(1)(a) of the Bombay Rent Act, the Court<\/p>\n
     went on to hold in Para 5 that the landlord in such<\/p>\n
     a case would necessarily resort to Section 13(1)(a)<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 13:35:17 :::<\/span>
\n                                    :   20     :\n<\/p>\n
     of     the    Bombay Rent Act r\/w Section 108(o) of                       the<\/p>\n
     T.P.Act.        Because,     in that case, using               the      suit<\/p>\n
     premises for a purpose other than the one for which<\/p>\n
     they     were let out even for a short cause and                        even<\/p>\n
     with     somewhat reasonable course may still invite a<\/p>\n
     decree       for eviction.     That view is founded on                    the<\/p>\n
     dictum       of the Division Bench of our High Court                       in<\/p>\n
     the case of Bright Brothers (Pvt.) Ltd.                      & Co.        vs.<\/p>\n
     Venkatlal G.Pittie & Ors.             reported in 1979 Mh.L.J.\n<\/p>\n
     894,
\n     894 wherein it is held that the mere act of change<\/p>\n
     of purpose of user even if it does not happen to be<\/p>\n
     destructive<\/p>\n
                      or permanently injurious to the leased<\/p>\n
     property      would      amount to breach of Clause (o)                    of<\/p>\n
     Section 108 of the T.P.           Act.       The Court went on to<\/p>\n
     observe      that    Section 13(1)(a) of the Bombay                     Rent<\/p>\n
     Act    does    not permit change of the purpose of                        the<\/p>\n
     user    or    continued      use for a changed              purpose        by<\/p>\n
     acquiescence        or    the waiver of the           landlord.            On<\/p>\n
     that    basis,      it went on to hold that the                  concepts<\/p>\n
     arising      under    the    general         law,     including           the<\/p>\n
     provisions      under      Section 111 of the T.P.Act,                    are<\/p>\n
     not    relevant      for    working      out       the      rights        and<\/p>\n
     liabilities      of      the parties under the Bombay                   Rent<\/p>\n
     Act.     The    Court went on to hold in                Paragraph          15<\/span><\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 13:35:17 :::<\/span>
\n                                      :    21   :\n<\/p>\n
     that    in     a case where the premises are leased                       for<\/p>\n
     the    purpose of “business”, if, instead of carrying<\/p>\n
     on    milk     business,       the     tenant      carries         on     the<\/p>\n
     business       of selling some other articles then there<\/p>\n
     would    not be a change of the purpose of the                        user.\n<\/p>\n
     However,       on   the other hand, if the              lease       itself<\/p>\n
     mentions       that the demised premises should be                      used<\/p>\n
     for    the     “selling of milk” and if the tenant                      uses<\/p>\n
     the    premises for the selling of alcoholic                       drinks,<\/p>\n
     then    it     must    necessarily mean that              there       is     a<\/p>\n
     change    of the purpose of the user though both                          the<\/p>\n
     purposes,<\/p>\n
                     namely       the purpose of selling milk                  and<\/p>\n
     the    purpose      of selling alcoholic drinks,                   may     be<\/p>\n
     included in the larger genus of business.\n<\/p>\n
     14.           Counsel for the Petitioner has then placed<\/p>\n
     reliance       on   an      unreported decision of             our      High<\/p>\n
     Court in the case of Shankar Bapurao Gujare (dead),<\/p>\n
     through       heirs,     vs.        Pandurang      Vithal        Kulkarni<\/p>\n
     (dead),       through heirs and legal representatives in<\/p>\n
     Writ Petition No.3054 of 1988 decided on August 10,<\/p>\n
     2000.    In that case, the suit premises consisted of<\/p>\n
     two    rooms    which were let out for residence                      only,<\/p>\n
     but    part    of     the    premises     was      being       used       for<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 13:35:17 :::<\/span>
\n                                          :    22    :\n<\/p>\n
     business.          Similar contention of the tenant came to<\/p>\n
     be     negated         and the Court proceeded to                     hold     that<\/p>\n
     provisions         of Section 13(1)(a) of the Bombay                           Rent<\/p>\n
     Act     r\/w 108(o) of the T.P.Act were attracted.                                 In<\/p>\n
     that     case, the Court has relied on the                            exposition<\/p>\n
     of     the    Apex Court in the case of                    Bishamber           Dass<\/p>\n
     Kohli     (Dead         by    LRs.      vs.     Satya        Bhalla         (Smt.)<\/a><\/p>\n
     reported          in (1993) 1 SCC 566,
\n                                       566 which takes the view<\/p>\n
     that    use of the building for a purpose other                                than<\/p>\n
     that    for       which it was leased without the                         written<\/p>\n
     consent       of    the       landlord        is a      good       ground        for<\/p>\n
     eviction.\n<\/p>\n
                        The       said    decision is in              relation         to<\/p>\n
     claim        of     the       landlord         founded           on       Section<\/p>\n
     13(2)(ii)(b)           of     the East Punjab Act.                  The      Court<\/p>\n
     went on to observe that the object of the provision<\/p>\n
     clearly       is    that the parties must remain bound                            by<\/p>\n
     the    terms       on    which       the      building         is     let      out,<\/p>\n
     including the condition relating to its use for the<\/p>\n
     purpose       for which it was leased.                    In other         words,<\/p>\n
     breach       of the covenant regarding the kind of                             user<\/p>\n
     of    the building let out is the ground of                             eviction<\/p>\n
     contained         in    Section         13(2)(ii)(b)           of     the      East<\/p>\n
     Punjab Act.\n<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 13:35:17 :::<\/span><\/p>\n
                                        :   23     :\n\n\n\n     15.          Counsel          for       the         Respondent\/tenant,\n\n     however,       distinguished           this         Judgment           on      the\n\n<\/pre>\n
     argument that the Scheme of Section 13(2)(ii)(b) of<\/p>\n
     the    East    Punjab Act is materially different                            than<\/p>\n
     the    provisions        of     Bombay Rent Act.                 It     is     not<\/p>\n
     necessary      to     enter into this debate as                       reference<\/p>\n
     has    already       been      made to decisions of                   our    High<\/p>\n
     Court which are directly on the point.<\/p>\n
\n\n\n\n\n                                          \n     16.          Counsel        for     the Respondent\/tenant                   would\n\n     then    rely on the decision of the Apex Court in the\n\n     case    of\n                     \n                    Atul Castings Ltd.                vs.     Bawa         Gurvachan\n\n     Singh       reported     in (2001) 5 SCC 133.                  Once         again,\n                    \n     this     decision        is    in      the       context         of     Section\n\n     13(2)(ii)(b)        of    the East Punjab Act.                   Indeed,        in\n\n     this    decision, the observations of the Apex                              Court\n      \n\n\n     in    the    case of Bishamber Dass Kohli (supra)                             have\n   \n\n\n\n     been    distinguished being in the fact situation                               of\n\n<\/pre>\n
     that case, as can be discerned from Para 19 of this<\/p>\n
     decision.       Learned Counsel for the Respondent                             was<\/p>\n
     at pains to persuade me to follow the dictum in the<\/p>\n
     case of Atul Castings Ltd.                 (supra) which takes the<\/p>\n
     view    that    it     is     not     uncommon          that      officials,<\/p>\n
     executives,      officers, businessmen,                    industrialists<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 13:35:17 :::<\/span>
\n                                   :    24    :\n<\/p>\n
     and people engaged in other vocations may have some<\/p>\n
     homework      to do and that, in these days                 computers,<\/p>\n
     internet and other like facilities are kept at home<\/p>\n
     for    convenience       and use.      It is further            observed<\/p>\n
     that    in    residential buildings where persons                      live<\/p>\n
     with    family     members, a room may be used                  for      the<\/p>\n
     purpose      of doing homework relating to office files<\/p>\n
     or    study of children or allied or ancillary use in<\/p>\n
     a    building leased for residential purposes.                       That,<\/p>\n
     so    long as in a residential building, there is                         no<\/p>\n
     regular      commercial     activity        or    carrying         on     of<\/p>\n
     business and regular office with interaction of the<\/p>\n
     public    and customers, etc.           it is not possible                to<\/p>\n
     say    that    use   of one room for doing               homework         or<\/p>\n
     study    itself will change the user of the                     building<\/p>\n
     and    that    the classification and character of                       the<\/p>\n
     building      is changed, but it continues to remain                        a<\/p>\n
     residential building so also its purpose remains as<\/p>\n
     residential.\n<\/p>\n
     17.          The   argument      though attractive,               clearly<\/p>\n
     overlooks      the fact situation of the present                     case.<\/p>\n
\n\n\n\n\n\n     In    the first place, the concurrent finding of fact\n\n     recorded      by   two    Courts       below      is     against         the\n\n\n\n\n                                                  ::: Downloaded on - 09\/06\/2013 13:35:17 :::<\/span>\n                                      :   25    :\n\n\n\n     Respondent\/tenant          to    the     effect         that       he       was\n\n     carrying      on    repairing       work (business)              of     T.V.,\n\n     Radio,    etc.       from    the       suit      premises          and      had\n\n\n\n\n                                                                             \n     obtained      license to conduct such business from the\n\n\n\n\n                                                     \n     competent      Authority under the provisions of                        Shops\n\n     and    Establishments Act, which was valid till 1987.\n\n     Issuance      of    said    license       presupposes            that       the\n\n\n\n\n                                                    \n     portion    of      the premises was being used as a                       shop\n\n<\/pre>\n
     within the meaning of Shops and Establishments Act.<\/p>\n
\n\n\n\n\n                                        \n     The    shop    was    operated in the name and                   style       as\n\n     \"Advance      Electronics\".         It is not relevant for                   us\n\n     to     dwell\n                     \n                     upon    the      fact      as      to     whether           the\n\n<\/pre>\n
     Respondent\/tenant had enough business or that large<\/p>\n
     number    of    customers        were      visiting           the       shop.\n<\/p>\n
     Suffice    it to note that the user of portion of the<\/p>\n
     suit    premises let out for residential use only has<\/p>\n
     been    converted      and       changed      to      non-residential<\/p>\n
     proposes, thereby attracting the rigours of Section<\/p>\n
     13(1)(a)      read    with section 25 of the Bombay                       Rent<\/p>\n
     Act.     It    matters      not whether          the      activity          was<\/p>\n
     carried on by the Respondent\/tenant only during his<\/p>\n
     leisure    time after office hours or for                      additional<\/p>\n
     source    of income.        Section 13(1)(a) of the                   Bombay<\/p>\n
     Rent    Act    is    inevitably          attracted          once      it     is<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 13:35:17 :::<\/span>
\n                                      :   26    :\n<\/p>\n
     established        that the tenant not only intended                       but<\/p>\n
     also    indulged        in regular commercial              activity         to<\/p>\n
     carry on business or use the premises (even portion<\/p>\n
     thereof)      as    a    regular     shop      with      intention          of<\/p>\n
     interacting        with    the public and           customers,           even<\/p>\n
     though    the      premises were let out for                 residential<\/p>\n
     use    only.    The conduct of the tenant in                    obtaining<\/p>\n
     license    under        the   Shops and        Establishments              Act<\/p>\n
     itself is indicative of the intention of the tenant<\/p>\n
     of    using    the suit premises for              regular         business<\/p>\n
     activity      or    a commercial venture and to                   interact<\/p>\n
     with    public
\n                      ig and customers.         It is not          a     pastime<\/p>\n
     activity      or    an    activity        undertaken          pro        bono<\/p>\n
     publico.        At any rate, having regard to the scheme<\/p>\n
     of    Bombay    Rent      Act    and     the    prohibition            under<\/p>\n
     Section 25 of the Bombay Rent Act, the act of using<\/p>\n
     even     portion         of   the      premises        let      out        for<\/p>\n
     residential         purpose      only      for       non-residential<\/p>\n
     activity      during specific period or otherwise would<\/p>\n
     result    in attracting the ground of change of                          user<\/p>\n
     within    the meaning of Section 13(1)(a) of the Rent<\/p>\n
     Act.<\/p>\n
\n\n\n\n\n\n     18.        Counsel        for the Respondent\/tenant                  would,\n\n\n\n\n                                                    ::: Downloaded on - 09\/06\/2013 13:35:17 :::<\/span>\n                                     :    27     :\n\n\n\n     however,       rely    on the dictum of our High Court                       in\n\n     the     case of Babhutmal Raichand Oswal vs.                       Laxmibai\n\n     Raghunath       Tarte<\/a> reported in Vol.LXXIV 1971                      B.L.R.\n\n\n\n\n                                                                             \n     214.\n     214      In that case, however, the decree passed                            by\n\n\n\n\n                                                     \n     the    Court below was under Section 13(1)(k) of                            the\n\n     Bombay    Rent Act and not under Section 13(1)(a)                            as\n\n     such.     The Division Bench of our High Court in the\n\n\n\n\n                                                    \n     case of Bright Brothers (Pvt.) Ltd.                     & Co.        (supra)\n\n     has    already      spelt    out     the       distinction           between\n\n\n\n\n                                       \n<\/pre>\n
     Section 13(1)(a) and Section 13(1)(k) of the Bombay<\/p>\n
     Rent    Act.    In that case, the Court found that                          the<\/p>\n
     premises<\/p>\n
                   were     put to additional or different                       use<\/p>\n
     and    they were still being used for the purpose for<\/p>\n
     which    they      were let.       Therefore, the             Court       held<\/p>\n
     that it was a composite user.                  On that finding, the<\/p>\n
     Court proceeded to hold that whether the case falls<\/p>\n
     within    the ambit of Section 13(1)(a) or                       13(1)(k),<\/p>\n
     the    Court will have to consider the provisions                            of<\/p>\n
     either    of the two clauses.            To my mind, therefore,<\/p>\n
     the    plea    of dominant user may be relevant to                          the<\/p>\n
     ground    of    eviction under section 13(1)(k) of                          the<\/p>\n
     Bombay    Rent      Act;    but of no avail to examine                      the<\/p>\n
     ground    under       Section 13(1)(a), more                particularly<\/p>\n
     relating      to    the premises let out for                  residential<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 13:35:17 :::<\/span>
\n                                      :    28    :\n<\/p>\n
     use     only    but     later on used          for     non-residential<\/p>\n
     purpose also.          Thus understood, this decision is of<\/p>\n
     no    avail.         For, the well established position                       is<\/p>\n
     that     once the Court finds that the tenant has used<\/p>\n
     the     demised       premises for purpose other than                      that<\/p>\n
     for which it was specifically leased, then no other<\/p>\n
     aspect      would      be relevant.        It will be           useful        to<\/p>\n
     advert      to unreported decision of our High Court in<\/p>\n
     the      case    of     Dasharath          Baburao         Sangale           vs.<\/p>\n
     Kashinath Bhaskar Datar<\/a> in Writ Petition No.1794 of<\/p>\n
     1984     decided on 19th February 1985.                    In that case,<\/p>\n
     the lease was for conducting a “shop for sugar-cane<\/p>\n
     juice”      known in Marathi as “Gurhala”.                     The tenant,<\/p>\n
     however,       started    using       the said premises                for      a<\/p>\n
     different       purpose (for selling clothe and clothes)<\/p>\n
     though      continued to use it as a shop.                     This      Court<\/p>\n
     relying      on the decision in the case of Kasturchand<\/p>\n
     Panachand       (supra) answered the ground of change of<\/p>\n
     user against the tenant.              The above-said unreported<\/p>\n
     decision       was    carried       in appeal before              the      Apex<\/p>\n
     Court    which, however, confirmed by the Apex                           Court<\/p>\n
     in    the    Judgement reported in AIR 1993 SC                        2646      –<\/p>\n
\n\n\n\n\n\n     Dashrath       Baburao    Sangale & Ors.               vs.        Kashinath\n\n     Bhaskar     Datar.\n                 Datar         The       Apex       Court<\/a>     referring            to\n\n\n\n\n                                                      ::: Downloaded on - 09\/06\/2013 13:35:17 :::<\/span>\n                                       :   29   :\n\n\n\n     provisions         of Section 13(1)(a) of the Bombay                     Rent\n\n<\/pre>\n
     Act and Section 108(o) of the T.P.Act, coupled with<\/p>\n
     the finding of the two Courts below that the tenant<\/p>\n
     has     been using the premises for the purpose                       other<\/p>\n
     than     the    one     for     which he had       taken       the       said<\/p>\n
     premises       on lease, answered the issue against                        the<\/p>\n
     tenant.\n<\/p>\n
     19.          In     the case of Motiram Dayaram (Dead)                     by<\/p>\n
     LRs.     & Anr.     vs.    Chimanlal Atmaram (Dead) By LRs.\n<\/p>\n
     &    Ors.    reported in (1998) 8 SCC 425,
\n                                           425 the premises<\/p>\n
     were<\/p>\n
             let out for residential purposes but were put<\/p>\n
     to    use by tenant for running power looms,                       weaving<\/p>\n
     machines,      etc.       The    Court opined that as               it     is<\/p>\n
     admitted case that the ground floor of the premises<\/p>\n
     in    dispute      is not being used for the purpose                      for<\/p>\n
     which    it was let out to the tenant, the tenant had<\/p>\n
     violated       the provisions of Section 13(1)(a) of the<\/p>\n
     Bombay      Rent    Act r\/w 108(o) of the             T.P.Act.            The<\/p>\n
     Court    went      on   to observe that          converting           of     a<\/p>\n
     residential        premises      into a sort of mini               textile<\/p>\n
     company      is surely going to affect the                  residential<\/p>\n
     utility of the premises.             Even in the present case,<\/p>\n
     although       the Respondent\/tenant must have succeeded<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 13:35:17 :::<\/span>
\n                                    :    30   :\n<\/p>\n
     in     establishing      that only portion of verandah                     is<\/p>\n
     used     for    non-residential activity, it was                    surely<\/p>\n
     going     to    affect    the residential utility                  of     the<\/p>\n
     premises.\n<\/p>\n
     20.         That    takes     me to the decision relied                    by<\/p>\n
     the     Counsel for the Respondent\/tenant of our                        High<\/p>\n
     Court in the case of Sahebrao Shankarrao Mistry vs.<\/p>\n
     Azizabai       Hussein    Ahmad     Mulla<\/a>      reported          in     1994<\/p>\n
     Mh.L.J.        1121.\n<\/p>\n
                    1121      Even in this case, the decree                    was<\/p>\n
     on<\/p>\n
           the ground of violation of Section 13(1)(k)                          of<\/p>\n
     the Bombay Rent Act and not Section 13(1)(a).                           This<\/p>\n
     decision       refers    to   other      decisions           which        are<\/p>\n
     already    adverted       to in the earlier part                 of     this<\/p>\n
     Judgment.        Much     emphasis      was        placed        on       the<\/p>\n
     observation that when the structure in question was<\/p>\n
     put to some additional use, that would not alter or<\/p>\n
     rescind    the     original       user, the question               of     any<\/p>\n
     violation by the tenant cannot be countenanced.                            As<\/p>\n
     has been noted earlier, the established position is<\/p>\n
     that    once the Court finds that the tenant has used<\/p>\n
     the    demised premises for a purpose other than that<\/p>\n
     for    which it was specifically leased, the                       rigours<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 13:35:17 :::<\/span>
\n                                     :    31    :\n<\/p>\n
     of    Section       13(1)(a) of the Bombay Rent                  Act      read<\/p>\n
     with     Section       108(o)      of     the      T.P.Act         will      be<\/p>\n
     attracted.           In    matters,       governed          by       Section<\/p>\n
     13(1)(a)       of    the    Bombay      Rent Act,         the      test      of<\/p>\n
     dominant       user for residence or nominal user of the<\/p>\n
     suit premises for non-residential purpose would not<\/p>\n
     absolve the tenant of action of eviction.\n<\/p>\n
     21.           Reliance      was also placed on the                 decision<\/p>\n
     in    the     case of Dattatraya Ramchandra                   Sapkal        vs.<\/p>\n
     Gulabrao       Tukaram Bhosale<\/a> reported in 1978                      Mh.L.J.\n<\/p>\n
     545.\n<\/p>\n
     545      In\n                     \n                     that      case, the premises            were       let      out\n\n<\/pre>\n
     specifically for carrying out business of fret work<\/p>\n
     but    later    on used for plastic business.                      In     that<\/p>\n
     case,    the    Court held that the change of user                          did<\/p>\n
     not    fall    within clause (o) of Section 108 of                          the<\/p>\n
     T.P.Act.       The     Court then went on to observe                      that<\/p>\n
     the    premises continued to be used for the business<\/p>\n
     of selling articles and did not change the user for<\/p>\n
     which    the premises were let out.                  This decision is<\/p>\n
     of no avail to the Respondent to contend that since<\/p>\n
     the    business activity was carried on in portion of<\/p>\n
     the    verandah      after    office hours            for      additional<\/p>\n
     source      of income, the ground of change of user                          is<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 13:35:17 :::<\/span>
\n                                   :   32    :\n<\/p>\n
     not     attracted, as has been found by the                  Appellate<\/p>\n
     Court in the impugned Judgment.\n<\/p>\n
     22.           Reference was then made to the decision of<\/p>\n
     the     Apex    Court in the case of Gurdial                Batra       vs.<\/p>\n
     Raj     Kumar Jain<\/a> reported in (1989) 3 SCC 441.                       This<\/p>\n
     decision       has referred to the opinion of the Bombay<\/p>\n
     High    Court     in the case of       Dattatraya           Ramchandra<\/p>\n
     Sapkal     (supra).      In the first place, this decision<\/p>\n
     pertains       to provisions of Section 13(2)(ii)(b)                     of<\/p>\n
     the    East Punjab Act.       Besides, in Para 6, the Apex<\/p>\n
     Court    has<\/p>\n
                      found   that    the       house      let      for      the<\/p>\n
     residence       purpose would not be available for being<\/p>\n
     used as a shop even without structural alterations.\n<\/p>\n
     The    observations      are in the context of using                    the<\/p>\n
     premises       for running a business other than the one<\/p>\n
     which    was     commenced    after    the       lease.          In     the<\/p>\n
     present    case,     the   question         is:       whether         even<\/p>\n
     portion of the premises let out for residential use<\/p>\n
     only    can     be allowed to be used by the tenant                     for<\/p>\n
     any    non-residential       activity?       The answer           is     an<\/p>\n
     emphatic “NO”.\n<\/p>\n
     23.        On analysis of the aforesaid decisions and<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 13:35:17 :::<\/span>
\n                                      :    33    :\n<\/p>\n
     the     provisions        of    the       Bombay     Rent       Act,       the<\/p>\n
     inevitable        conclusion        is that the opinion of                 the<\/p>\n
     Appellate        Court that no decree of eviction can                       be<\/p>\n
     passed      in    favour    of the landlord            under        Section<\/p>\n
     13(1)(a)      of    the    Bombay Rent Act           in      respect        of<\/p>\n
     premises      let out for residence only as the demised<\/p>\n
     premises      were not used as a full-fledged                     business<\/p>\n
     for    whole day, but only during leisure time                         after<\/p>\n
     office      hours      for generating additional source                     of<\/p>\n
     income,      is    anathema to the scheme of                 the     Bombay<\/p>\n
     Rent Act.\n<\/p>\n
     24.          Accordingly,           this    Petition          ought         to<\/p>\n
     succeed and the impugned Judgment and decree passed<\/p>\n
     by the Appellate Court deserves to be set-aside and<\/p>\n
     instead, the Judgment and Decree of eviction passed<\/p>\n
     by    the    Trial Court against the              Respondent\/tenant<\/p>\n
     restored for the reasons recorded hitherto.\n<\/p>\n
     25.          As    a    result, rule is made absolute                    with<\/p>\n
     costs.<\/p>\n
\n\n\n\n\n\n     26.          At     this       stage,          Counsel          for        the\n\n     Respondent\/tenant          prayed      that     as     the        original\n\n\n\n\n                                                    ::: Downloaded on - 09\/06\/2013 13:35:17 :::<\/span>\n                                      :    34   :\n\n\n\n     tenant      has expired and the Respondent No.1(a)                        who\n\n     is    widow of the original tenant was alone residing\n\n     in    the    suit      premises, she may         be     permitted          to\n\n\n\n\n                                                                           \n     occupy      the    suit    premises during her              life      time.\n\n\n\n\n                                                   \n     Counsel      for    the Petitioner submitted                that,       that\n\n<\/pre>\n
     indulgence can be shown, subject to instructions to<\/p>\n
     be     taken      from    the       Petitioner,       provided            the<\/p>\n
     Respondent        No.1(a)    should        file     personal          usual<\/p>\n
     undertaking as also cause to file usual undertaking<\/p>\n
     of    all    her    sons and daughters           though        they       are<\/p>\n
     staying      separately.        Counsel for the           Respondents,<\/p>\n
     however,<\/p>\n
                      expressed       inability         to       give        such<\/p>\n
     undertaking.\n<\/p>\n
     27.          In    the    circumstances,         no order          can     be<\/p>\n
     passed      in    favour    of the Respondents              to     protect<\/p>\n
     possession        of    Respondent No.1(a) during her                   life<\/p>\n
     time.\n<\/p>\n
     28.          Counsel      for    the Respondents            would       then<\/p>\n
     pray    that the operation of this Judgment be stayed<\/p>\n
     so    that    the Respondents can carry the                  matter        in<\/p>\n
     appeal.       That being a reasonable request, the same<\/p>\n
     is accepted on condition that the Respondents shall<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 13:35:18 :::<\/span>
\n                               :   35    :\n<\/p>\n
     file   usual   undertaking in this Court             within        two<\/p>\n
     weeks from today.      On compliance of that condition,<\/p>\n
     this   order   shall   not be given effect            to     for      a<\/p>\n
     period of twelve weeks from today.\n<\/p>\n
     .         Ordered accordingly.\n\n\n\n\n                                           \n                                       A.M.KHANWILKAR, J.\n\n\n\n\n                                 \n                    \n                   \n      \n   \n\n\n\n\n\n\n                                            ::: Downloaded on - 09\/06\/2013 13:35:18 :::<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Mangaldham vs Shriram Dattatraya Kulkarni on 11 July, 2008 Bench: A.M. Khanwilkar IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.986 OF 1990 Ramesh Ganesh Kange, adult, occupation landlord, residing at Mangaldham, Vadavali Section, …Petitioner Ambernath, Dist.Thane. (Ori.Plaintiff) Versus Shriram Dattatraya Kulkarni, since deceased by his heirs […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-198772","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nMangaldham vs Shriram Dattatraya Kulkarni on 11 July, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mangaldham-vs-shriram-dattatraya-kulkarni-on-11-july-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mangaldham vs Shriram Dattatraya Kulkarni on 11 July, 2008 - 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