MOHAN JAWAHAR RAWAL Vs. SHUKLESHWAR RAGHUNATH

JUDGEMENT

(1.) BY this petition filed under Article 227 of the Constitution of India, the petitioner challenges the order dated 26.6.1985 passed by the VI Additional District Judge, Pune, in Civil Appeal No.106/1983. That appeal was filed by the original respondent Shukleshwar, of whom the present respondents are the legal representatives, challenging the order dated 22.7.1982 passed by the Additional Small Cause Judge, Pune, in Civil Suit No.432/1979. That civil suit was also filed by the original respondent Shukleshwar claiming therein that he is owner of House No.1137 situate at Budhwar Peth, Pune, and that the petitioner Mohan is the tenant of one room on the ground floor of the said building. It was the case of the landlord that the suit premises were let out to the tenant for the purpose of residence; however, the tenant changed the user of the suit premises from residence to business. It was also the case of the landlord that the tenant has secured suitable residence and therefore a decree of eviction was sought against the tenant on two grounds : (1) change of user and (2) acquisition of suitable residence. In his written statement, the tenant did not deny that the tenancy of the suit premises was created in his favour for the purpose of residence. He also did not deny that he is not using the premises, which were let out to him for residence, for the purpose of residence any more. It was his case that he has changed the user of the suit premises from residential to business with the permission of the landlord. It is to be seen here that the tenant was relying on two documents which are styled as Parwana Chittis for asserting that the landlord had given him consent in writing for using the premises for business purpose. The trial court accepted the case of the tenant that the landlord had permitted him to use the premises for business purpose and recorded finding against the landlord and dismissed the suit. In the appeal filed by the landlord, however, the appellate court reversed the finding recorded by the trial court and held that no permission was ever granted by the landlord for using the premises for business purpose. As a result, the appeal filed by the landlord was allowed and the suit filed by the landlord for a decree of eviction against the tenant was decreed in favour of the landlord and the tenant was directed to vacate the suit premises.

(2.) IT is clear from the record of the case that the tenant did not dispute that the premises were given to him by the landlord for the purpose of residence. He also did not dispute that he has secured suitable residence. It was the case of the tenant that he has changed the user of the suit premises from residence to business with the permission of the landlord. Therefore, the entire burden of proving that the change of user was effected by the tenant with the permission of the landlord was on the tenant. In support of his case, as stated above, the tenant relied on two documents at Exhs.18/4 and 18/5. Shri Gokhale, learned counsel for the petitioner, urged before me that the appellate court has committed a grave error in discarding the opinion of the handwriting expert whose opinion was called for comparing the signatures on the permission letters because the landlord was denying that he ever signed the permission letters. Shri Gokhale further urged that the finding recorded by the appellate court, after comparing the signatures of the landlord on the Vakalatnama and other documents with the signatures on the permission letters, that the landlord has not signed the permission letters, is wrong.

(3.) IT is further to be seen here that section 13(1)(a) of the Bombay Rent Act lays down that a landlord shall be entitled to recover possession of any premises if the court is satisfied that the tenant has committed any act contrary to the provisions of clause (o) of section 108 of the Transfer of Property Act. Perusal of the provisions of clause (o) of section 108 of the Transfer of Property Act shows that, in the absence of a contract to the contrary, the act of the lessee himself using or permitting another to use the demised premises for a purpose other than for which it was leased, would entitle the landlord to claim a decree of eviction against the tenant. Section 108 (o) of the Transfer of Property Act does not contemplate any permission being granted by the landlord for change of user. Therefore, to get out of the rigours of the provisions of section 108(o), what has to be established by the tenant is a contract to the contrary. In so far as the present case is concerned, it is not even the case made out by the tenant that the alleged Parwana Chittis constitute a contract between the parties which varses the initial contract between the parties. A contract to the contrary is required to be pleaded and proved. The tenant has not pleaded any such contract. Therefore, independently of the Parwana Chittis, in my opinion, as, admittedly, the tenant has changed the user of the suit premises, a decree of eviction would be liable to be passed against him on that ground. In these circumstances, therefore, in my opinion, no case is made out for interference with the findings recorded by the appellate court in my jurisdiction under Article 227 of the Constitution of India.