BANSILAL RAMPRATAP RATHI Vs. SURATSING CHANDANMAL AND OTHERS

JUDGEMENT

(1.) THE only question which really arises for decision in this petition filed by the tenant is whether the lower appellate Court was right (sic) making a decree for eviction in respect of the suit premises on the finding that the tenant had brought about a change in the user of the premises, which (sic) originally taken only for the purposes of residence. I am not (sic) with the landlord's case that the premises were needed bona fide for (sic) use because on that issue, both the Courts below have found against (sic) landlord.

(2.) THE relevant facts may now be stated: The house in question originally belonged to one Surajbai and it was occupied by the petitioner (sic) residence and he executed a rent -note dated 20th July, 1946. The house (sic) to be auctioned in some litigation against Surajbai and plaintiff Na. 1 (sic) purchased the said house in January 1967. The tenant fell in arrears of (sic) and plaintiff No. 1 then filed Civil Suit No. 229 of 1968 for arrears of rent. This suit came to be decreed on 6th September, 1975 and a decree for Rs. (sic) plus costs was made. The trial Court had directed that the landlord was permitted to increase the amount of rent to Rs. 250 per year upto 5th August

(3.) THE tenant, inter alia, denied that he was in arrears. He pleaded that the premises were not taken only for residence but also for establishing a shop therein since the beginning. The plea of consent and waiver was raised and it was stated that the original landlord had consented to the premises being used for business purposes and, in any case, the previous owner not having objected to the use of the premises for shop purposes and having accepted rent, the previous landlord was deemed to have waived the change of user with the result that the plaintiffs were not entitled to rely upon the alleged change of user. A defence is taken that the premises were primarily being used for residence, i.e., the dominant use of the premises was for residence and not for a shop because the shop has been established only in a small portion of the premises.