AI Structured Summary
Not yet generated for this judgment
Judgment
D.K. Deshmukh, J.—By this petition filed under Article 227 of the Constitution of India, the petitioner challenges the judgement and order dated 12.9.1996 passed by the IInd Additional District Judge Pune in Civil Appeal No. 897/93. That Appeal was filed by the present petitioner, challenging the judgement and decree dated 11th October, 1993 passed by the IVth Additional Judge, Small Causes Court, Pune in Civil Suit No. 1726/87. That Civil suit was filed by the present respondents, claiming therein that they are owners of the suit premises being a room admeasuring 14''x 10'' feet, forming a part of C.T.S. No. 683, at Taboot Street, Camp Pune - 1. The landlord sought a decree of eviction against the tenant on two grounds, namely, that though the premises were let out to the tenant for being used as Godown for storing goods, the tenant has after making some changes in the suit premises started using it as a shop and that the tenant has erected permanent structure in the suit premises.
It is to be seen here that it was the case of the landlord that the land on which the building is constructed by the landlord, vests in the Cantonment Board, Pune. According to the landlord because the tenant changed the user of the premises, he has to face action from the Board for termination of his tenancy, The Trial Court after appreciating the evidence on the record, recorded findings on both the questions in favour of the landlord and decreed the suit. In Appeal, the Appellate Court confirmed the decree passed by the Trial Court and dismissed the Appeal. It is these two judgements, which are challenged in the present petition.
Shri Anturkar, the learned Counsel appearing for the petitioner urged before me that considering the provisions of Section 108(0) of the Transfer of Property Act, it has to be shown that as a result of the change of the user effected by the tenant, an injury is caused to the interest of the landlord. In the submission of Shri Anturkar, the reliance placed by the Courts below on the judgment of this Court in the case of Vallibhai Raje and Ors. v. Kalyanji Gangajar Bhagat and Ors. 1988 BR.C. 388 is not proper. In the submission of Shri Anturkar an injury that has to be shown is which has been caused to the premises. He further urged that in any case in the present case there is no injury to the interest of the landlord because the Cantonment Board has only issued show cause notice, asking the landlord to show cause as to why his tenancy should not be terminated because the petitioners have been using the suit premises for conducting a shop. In the submission of Shri Anturkar, as actually no concrete action has been taken by the Cantonment Board against the landlord, it cannot be said that any injury is caused to the interest of the landlord.
On the other hand Mrs. Agarwal, the learned Counsel appearing for the respondents submitted that as it is now an established position that the premises were let out to the tenant for being used as Godown and the tenant has actually used the tenement not as Godown but for running a shop. In view of the Division Bench judgement of this Court in the case of Bright Brothers (Pvt.) Ltd. and Co. v. Venkatlal G. Pittie and Ors. 1979 ML.J. 894 the mere act of change of purpose of user though it may not result in any injury to the property or to the interest the landlord amounts to breach of Clause (o) of Section 108 of the Transfer of Property Act. In the submission of Mrs. Agarwal as the effect of change of user by the tenant is no more in dispute then in the lace of the judgment of the Division Bench in Bright Brothers Company''s case the decree of eviction passed against the tenant is perfectly valid.
Shri Anturkar, the learned Counsel for the petitioner on the other hand submits that the learned single Judge of this Court in its judgment in the case of Dattatraya Ramchandra Sapkal v. Gulabrao Tukaram Bhosale 1978 ML.J. 545 has taken a view that mere change of user by the tenant is not actionable unless it is shown that it results in an injury to the demised premises. In the submission of Shri Anturkar, this view taken by the learned single Judge of this Court, has been approved by the Supreme Court in the case of Gurdial Batra Vs. Raj Kumar Jain, .
Now considering the rival submission made by the parties, it is clear that the Division Bench of this Court in its judgment in Bright Brothers Pvt. Ltd. ''s case, referred to above, has clearly taken a view that a change of user effected by the tenant is itself actionable. The Division Bench has observed in paragraph 17 of its judgement thus : -
With respect, this does not, thus appear to us to be correct interpretation of Clause (o). We arc unable to trace any words in this clause to support the conclusion of the learned Judge that the change of the purpose of the user contemplated under this clause, necessarily involves any waste, alteration, destruction or damage, or act of nuisance and that any change of the purpose of the user without any such element, cannot amount to breach of the clause. Prevention of waste and destruction of the leased property may be one of the many legislative intents. However, there is no warrant or basis to exclude lesser evils such as, preventing mere change of the purpose of user, selling of the timber, and working hidden mines, involving no such element of waste, etc. necessarily from the legislative intent when the express wording, as analysed above so indicates.
In so far as the contention urged by Shri Anturkar, thai the view taken by the learned single judge of this Court, referred to above, in its judgement in Dattatraya'' case is approved by the Supreme Court in its judgement in Gurdial Batra''s case is concerned, in my opinion Shri Anturkar is not correct in making that submission. The relevant observations of the Supreme Court in the Gurdial Batra''s case reads as under :-
Similarly, the Bombay High Court has held that when the lease deed provided for user of the premises for business of fret work and the lessee used the premises for business in plastic goods, change in the nature of business did not bring about change of user as contemplated in Section 108(o) of the Transfer of Property Act, 1970 M L.J. 545.
It is clear from the above observations of the Supreme Court that the view of the learned single Judge that has been approved by the Supreme Court is that the mere change in the nature of business does not amount to change of user as contemplated by Section 108(o) of the Transfer of Property Act. The view taken by the Division Bench in Bright Brothers Pvt. Ltd.''s case is absolutely clear and the Division Bench has in clear terms laid down that when the premises are let out for one purpose and they are being used by the tenant for another purpose, then the landlord becomes entitled to a decree of eviction. In the present case, there is no dispute before me that the suit premises were let out for being used as Godown for storing goods and that the tenant started using them for running a shop there. He has also made structural changes in the suit premises to facilitate the running of a shop there. In this view of the matter, therefore, in my opinion, the concurrent findings recorded by both the Courts below do not call for any interference at the hands of this Court in its jurisdiction under Article 227 of the Constitution of India.
In the result, therefore, the petition fails and is dismissed. Rule discharged with no order as to costs.
At this stage the learned Counsel for the petitioner urged that the petitioner has been carrying on business in the suit premises for a long time, therefore, reasonable time should be given to the petitioner to vacate the suit premises. In the submission of the learned Counsel time of one year would be a reasonable time. I have heard the learned Counsel for the respondent also on this question. In my opinion, considering the facts and circumstances of this case, since the petitioner has been carrying on business in the suit premises for a long time it would be reasonable to grant the petitioner one year''s time to vacate the suit premises. However, the petitioner will have to submit an undertaking to this Court in the usual form. In this view of the matter, it is directed that though the petition is dismissed, the interim order passed in the present petition shall continue to operate for the period of one year from today, subject to the condition that the petitioner submits an undertaking to this Court in the usual form within the period of two weeks from today. Failure of the petitioner to submit an undertaking within the aforesaid period, shall, however, entitle the landlord to execute the decree immediately.