1. This is a tenant's petition challenging the decree for eviction passed against him by the IInd Additional Judge, Small Causes Court, Poona, and confirmed by the IInd Extra Assistant Judge, Poona.
2. The defendant-petitioner was admittedly a tenant of the suit-premises which consists of a shed which was reconstructed in or about 1960. According to the landlord-respondent No. 1 the defendant had taken the premises specifically for carrying on his business of fret-work, but in about 1969 he had started 'plastic business' thereby causing a breach of the terms of tenancy. The plaintiff had also alleged that the defendant had constructed a loft and erected a permanent structure. Possession was also claimed on the ground that the defendant was in arrears of rent for more than six months.
3. It is not necessary to refer to the claim for eviction based on the allegation of construction of a permanent structure and default in payment of rent because that part of the claim of the plaintiff has been negatived and the plaintiff has not challenged that part of the order further.
4. The defendant's case was that there was no change of user as contemplated by Section 13(1)(a) of the Bombay Rent Act read with Section 108(o) of the Transfer of Property Act, and that he had been having his plastic business right from the beginning and there was, therefore, no breach of the terms of tenancy.
5. The trial Court took the view that the lease-deed between the parties clearly showed that the defendant was to use the premises only for manufacture of toys prepared by fret-work and since the defendant had started 'plastic business' in the suit-premises he had contravened the terms of the lease-deed and 'there was change of purpose as contemplated in Section 13(1)(a) of the Bombay Rent Act.' The trial Court, therefore, found that the plaintiff was entitled to possession.
6. The appeal filed by the defendant also came to be dismissed. The learned Assistant Judge also took the view that preparation of wooden toys was the business mentioned in the lease-deed and since dealing in plastic goods was a new business and was not covered by the terms of the lease-deed, the decree for eviction was rightly passed because according to the learned Assistant Judge, the change of user was in contravention of the terms and conditions of the tenancy and consequently this would fall under Section 108(o) of the Transfer of Property Act. The appeal filed by the defendant having been dismissed, he has now filed this petition.
7. Mr. Bhagat appearing on behalf of the petitioner has urged that though the tenant was liable to be evicted on the grounds specified in Section 108(o) of the Transfer of Property Act, in view of the provisions of Section 13(1)(a) of the Bombay Rent Act the plaintiff has neither alleged nor proved that the change of user was such that it was destructive or permanently injurious to the property. There is much substance in this contention which I am inclined to accept.
Section 13(1)(a) provides:
13.(1) Notwithstanding anything contained in. this Act but subject to the provisions of Sections 15 and 15A, a landlord shall be entitled to recover possession of any premises if the Court is satisfied-
(a) that the tenant has committed any act contrary to the provisions of Clause (o) of Section 108 of the Transfer of Property Act, 1882;...
Clauses (a) to (c) of Section 108 of the Transfer of Property Act deal with rights and liabilities of the lessors and Clause (d) to (q) deal with the rights and liabilities of the lessees. The opening part of Section 108 and the relevant Clause (o) read as follows:
In the absence of a contract or local usage to the contrary, the lessor and the lessee of immoveable property, as against one another, respectively, possess the rights and are subject to the liabilities mentioned in the rules next following, or such of them as are applicable to the property leased:...
(o) the lessee may use the property and its products (if any) as a person of ordinary prudence would use them if they were his own; but he must not use, or permit another to use, the property for a purpose other than that for which it was leased, or fell or sell timber, pull down or damage buildings belonging to the lessor, or work mines or quarries not open when the lease was granted, or commit any other act which is destructive or permanently injurious thereto:
In order, therefore, that a landlord would be entitled to invoke the provisions of Clause (o), he has not merely to show that the property was granted for a particular purpose and that it was now being used for a purpose other than that for which it was used, but he has further to show that the new use is destructive or permanently injurious to the property. Unless this latter ingredient is pleaded and proved, a landlord will not be entitled to invoke the provisions of Clause (o) while exercising his right to terminate the tenancy and recover possession, having regard to the provisions of Section 13(1)(a) of the Bombay Rent Act. There is nothing in the plaint, nor is there anything in the evidence of the plaintiff to show that it was his case that the use to which the defendant was putting the premises was destructive or permanently injurious to the property. Therefore, one of the essential ingredients of Section 108(o) has neither been pleaded nor proved and both, the lower Courts seem to have lost sight of this requirement which is required to be satisfied in a case where the landlord wants to invoke the provisions of Section 13(1)(a) of the Bombay Rent Act, read with Section 108(o) of the Transfer of Property Act. The view which I am taking is supported by an earlier unreported decision of this Court by V.S. Desai J. in Ishwaribai Jamnadas v. Dr. Narottamdas V. Mody (1968) Special Civil Application No. 431 of 1966. The learned Judge while dealing with Section 108(o) of the Transfer of Property Act has observed as follows:
The change of purpose contemplated by Clause (o) of Section 108 of the Transfer of Property Act is change from user of one kind to another involving waste, alterations, destruction or damage of the property etc. or amounting to an act of nuisance. A change of user, which does not involve any such element, will not amount to a breach of Section 108(o) of the Transfer of Property Act. Under Section 6 of the Rent Act the broad classes of purposes or the users of the premises to which the rented premises may be put are specified as for residence, education, business, trade or storage. The actionable ground contemplated by Section 13(1)(a) by its reference to Clause (o) of Section 108 of the Transfer of Property Act is a change of purpose or user from one kind of user to another from amongst the several users as are specified in Section 6 of the Rent Act, except in cases where by a specific restrictive covenant in the lease the user is still further restricted.This decision of V.S. Desai J. was followed in another reported decision of this Court in Keshavji v. Sulochanabai : AIR1977Bom7 .
8. It was, however, contended by Mr. Rane for the plaintiff that the provisions of Clause (o) of Section 108 will be attracted only 'in the absence of a contract or local usage to the contrary' as provided for in the opening words of Section 108 and that inasmuch as the lease-deed contains an agreement that the premises shall be used only for the purposes of fret-work, it was not necessary for the plaintiff to further prove the requirement of the use being destructive or permanently injurious to the property as contemplated by Section 108(o).
9. Now, the words of Section 13(1)(a) of the Bombay Rent Act indicate that the Legislature has referred in Clause (a) of Section 13(1) to an act contrary to the provisions of Clause (o) of Section 108. The effect of Section 13(1)(a) is that the provisions of Clause (o) alone are deemed to be incorporated as a part of the provisions of Section 13(1) of the Rent Act. The intention of the Legislature was very clear as would be apparent from the scheme reflected in the provisions of Sections 12 and 13 of the Rent Act. An absolute bar was created by Section 12 against the landlord in respect of recovery of possession of premises from the tenant provided the tenant pays or is ready and willing to pay the amount of standard rent and permitted increases and observes and performs the other conditions of the tenancy, in so far as they are consistent with the provisions of this Act. Section 13(1) no doubt operates notwithstanding the provisions of Section 12; but that only means that the right to recover possession which was taken away is made available to the landlord only in certain statutorily prescribed circumstances. One such circumstance referred to in Section 13(1)(a) of the Bombay Rent Act is that the change of user is now permitted to be made a ground for eviction. The Legislature has clearly indicated that that change of user must be a change of user as contemplated by Clause (o) of Section 108 of the Transfer of Property Act. A change of user which does not fall within Clause (o) of Section 108 of the Transfer of Property Act could not be availed of by the landlord. If that was the intention of the Legislature, on reading Sections 12 and 13 together, the question of any agreement between the parties in regard to the user of the premises would not be relevant.
10. Apart from this, it is also difficult to accept the contention that merely because instead of fret-work business the defendant took to the business of dealing in plastic goods, it amounted to a change of user. In both cases the premises are used for business purposes. Change in the nature of business need not necessarily in all cases result in the change of user for which the premises are used. Originally the defendant dealt in goods made of wood. Now the defendant deals in goods made of plastic. But the premises continue to be used for the business of selling articles. Therefore, apart from the question that the defendant has not been proved to have incurred any liability under Section 13(1)(a) of the Rent Act, it will also not be possible to sustain the findings recorded by both the Courts below that by changing the articles in which the defendant used to deal, the premises have ceased to be used for the business purpose. In this view of the matter, it will not be possible to sustain the decree for eviction passed by the trial Court and the decree for eviction will have, therefore, to be quashed. Accordingly, the decree for eviction passed against the petitioner is set aside and the plaintiff's suit stands dismissed.
11. Rule is made absolute with costs.