SHANTINATH S GHONGADE Vs. RAJMAL UTTAMCHAND GUGALE

JUDGEMENT

(1.) A question of some importance which arises in this petition and which has been argued at length is whether a purchaser of a property in the possession of a tenant is entitled to invoke the provisions of Clause (a) or Clause (b) of Section 13(1) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the "Rent Act"), if the alleged breach has taken place before the plaintiff became owner of the property by virtue of a sale in his favour.

(2.) Admittedly the premises were let out to the defendant-petitioner on 4th March 1965 and the defendant had executed a rent note in favour of the original owner Sonabai. The rent note is written on an ordinary paper, but the tenant has signed on adhesive stamps of the value of 20 paise stuck thereon. There is no dispute that this rent note specifically refers to the premises being taken on rent for the purposes of residence. One of the stipulations of this rent note is that the tenant had made a deposit of Rs.1500/- with the landlady for which he would not charge interest but that at the time of paying monthly rent he would pay only Rs.15/- and a sum of Rs.30/- would be deducted by the landlady out of the amount lying in deposit. There was an agreement of sale by Sonabai in favour of the present respondent on 2nd February 1966 by which the plaintiff-respondent had agreed to purchase the suit property for a sum of Rs. 60,000/-. The sale deed was taken almost five years later on 20th Jan. 1971 and it was registered on 16th April 1971. A little more than a month thereafter, on 24th May 1971, the plaintiff-respondent issued a notice to the tenant terminating his tenancy. In this notice it was recited that while the premises were taken on rent for the purpose of residence, the tenant had started using the premi- ses for shop purposes and that tenant had also closed the door and the windows on the eastern side and he had thus committed a breach of the term of the tenancy. The averments made in the plaint show that the plaintiff's case was that the defendant had started using the premises for the purpose of a shop after the agreement of sale was made in favour of the plaintiff The averments with regard to the closing of the door and the windows are rather vague inasmuch as there are no positive averments as to when these changes were made. The averment is that the defendant had closed the door and the windows on the eastern side unauthorised-ly and that these amounted to alterations of a permanent nature. The defendant in his written statement tried to make out a case that the original lease itself was a composite lease both for the purpose of residence and business and that he had started using the premises as a shop from 13th Nov. 1966 and that he had taken the consent of the original landlady. A plea of estoppel was raised inasmuch as according to the defendant, the original landlady knew of the use of the premises for the purpose of the shop. With regard to the alterations, the allegation was that it was the plaintiff himself who had closed the door and the windows.

(3.) The plaintiff and the defendant were the only witnesses in the case. The trial Court came to the conclusion that the lease was specifically granted for residential purposes and that the defendant had changed the use of the premises from residence to business after he had come to know about the plaintiff's agreement of sale. On the question of carrying out permanent alterations, the finding was against the defendant. The trial Court thus decreed the plaintiff's suit. In appeal filed by the defendant, the appellate Court found that the defendant had conceded that in the beginning he was using the premises only for the purpose of his residence and consequently, the Appeal Court found that the defendant had started doing business in the suit premises in the beginning of the year 1969. The Appeal Court found that there was no evidence to show that either the plaintiff or his predecessor-in-title had given consent to the defendant to use the premises for business purposes. With regard to the change of user, therefore, the Appeal Court found that the defendant had committed a breach of the condition of the lease agreement. The Appeal Court negatived the case of the defendant that it was the plaintiff who had carried out the alleged alterations and found that it was the defendant who must have closed the back side door and windows because he was storing his stock-in-trade in the suit premises. The decree for eviction passed by the trial Court, therefore, came to be confirmed.