BABAN SITARAM PANDE Vs. SARASWATIBAI KESHAVRAO BHOIRKAR

JUDGEMENT

(1.) THIS is a tenant's petition challenging the Judgment dated 10.7.1990 passed by the 11th Additional District Judge, Pune, in Civil Appeal No.865 of 1989 filed by the petitioner. The petitioner had filed the appeal against the decree passed against him for his eviction from the suit premises, dated 4.7.1989 passed by the 7th Additional Judge, Small Causes Court, Pune.

(2.) THE respondent-landlords had filed Rent Act Suit No.1967/1985 claiming a decree of possession against the petitioner on two grounds, namely, that the tenant has secured alternate accommodation and that the tenant has changed the user of the suit premises from residence to business. The trial Court found that the landlords had not proved that the tenant has secured alternate accommodation. However, it found that the landlords had proved that the tenant has changed the user of the suit premises. In the appeal, the Appellate Court held that because the tenant has set up a shop in the passage between the door and the suit premises, it does not amount to change of user but it amounts to nuisance and annoyance to the landlords and the Appellate Court reversed the finding of the trial Court on the question of the tenant securing alternate accommodation.

(3.) PERUSAL of the judgment of this Court in Punamchand Nanavati's case shows that the judgment is by a learned single Judge of this Court where it is held that even after the amendment of Rule 22 of Order 41 of the Civil Procedure Code, even in the absence of a cross-objection, a finding recorded in favour of the appellant by the trial Court can be disturbed by the Appellate Court. Perusal of the judgment of this Court in Padmavati's case shows that it is a judgment of a Division Bench of this Court where this Court has observed thus :