JUDGMENT Anoop V. Mohta, J.
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1. The petitioner-tenant has invoked Article 227 of the Constitution of India and sought to challenge concurrent findings of fact given by the Courts below, whereby, respondent-landlord's suit for possession on the ground of "change of user and non occupation continuously for more than six months" has been decreed.
2. The suit property is situated on the ground floor of house No. 358, Shop No. 4, Ganesh Peth, Pune, consisting of two rooms having monthly rent of Rs. 55/-and Rs. 16/- towards education cess. Petitioner-tenant had occupied Shop No. 1, as alleged, for composite use since 1962 to 1977. On 22nd January, 1997, the petitioner-tenant agreed and exchanged the tenancy of Shop No. 4, premises in question, with Shop No. 1. The petitioner-tenant, since then, has agreed to occupy the Shop No. 4 for residence purpose only and accordingly been using the same since then, till 18th September, 1981. From 11th September, 1981, petitioner-tenant, without permission, has been using the premises in question for making hardboard boxes.
3. The said business has been registered as "Hemant Box Manufacturing Company" in the name of his son and also registered under the Shops & Establishments Act. Petitioner-tenant has alleged that he is using the said premises for both the purposes as the earlier premises were also used for the composite purpose. The petitioner, at the time of exchange of the premises, agreed in writing, to use the premises in question for residence purpose only and accordingly, endorsement was made on Exhibit-16. The respondent-landlord, as alleged, never objected for the use of the said premises for composite purpose. The respondent-landlord, however, resisted the said contentions.
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4. On 5th May, 1983, as petitioner-tenant requested the landlord in writing to grant permission to install 1 1/2hp machine in the premises, the said permission was granted in writing by the respondent-landlord. On 3rd June, 1983, the respondent-landlord, as per legal advise, however, withdrew the said permission for allowing the premises for business and/or for installation of machine.
5. On 23rd December, 1983, the respondent-landlord filed a Suit for possession under Section 13(1)(a) and (k) of the Bombay Rents Hotel and Lodging House Rates (Control) Act, 1947 (for short "Bombay Rent Act"). The petitioner-tenant resisted the said suit by a Written Statement (Exh.29) and an Additional Written Statement. The parties led evidence. The petitioner-tenant examined 4 witnesses - DW1 Shantilal, petitioner himself, DW2 Vishnu, DW3 Subhash -Officer of the Pune Municipal Corporation (for short "PMC") and DW4 Mahadev, Inspector under the Bombay Shops & Establishments Act. Respondent-landlord examined himself only (PW1). By judgment and decree dated 10th February, 1986, the Additional Small Causes Court (Trial Court) passed a decree as prayed in favour of the respondent-landlord. The Additional District Judge (Appellate Court) in Civil Appeal preferred by the petitioner, by impugned judgment and decree dated 22nd June, 1989, confirmed the decree for possession and dismissed the petitioner-tenant's Appeal. The Petitioner-tenant has, therefore, preferred the present Writ Petition. The petitioner-tenant is enjoying the possession of the premises in view of the admission order in the Writ Petition and in interim order passed by this Court dated 6th July, 1990.
6. Heard the learned counsel Mr. C.M. Shastri for the petitioner-tenant who hacked up the submissions by a catena of judgments. Mrs. Gauri Godse, appearing for the respondent-landlord resisted the submissions and supported the concurrent findings given by the Courts below and he has also relied on the judgments of the Apex Court, as well as, of our High Court.
7. Both the Courts, based on the material, as well as, the evidence on the, record, are in line on the following issues. (a) The petitioner-tenant was a teacher serving in the School when he was residing in the earlier premises titled Shop No. 1 and he was governed by the rules and occupation of the School Code of Conduct. Therefore, in view of the bar, he could not do any business, while he was in service as the teacher. (b) No material was produced and/or supported to show that the petitioner was doing business right from 1960-1963 to 1980-81. (c) Petitioner-tenant agreed to exchange and occupy the premises i.e. Shop No. 4 on and from 22nd January, 1997, and is occupying the same for residential purpose until 18th September, 1981. (d) At the back of Exhibit-18, he agreed to occupy the premises for the residential use ("rahanya sathi"). Both the Courts, considering the provisions of Section 73 of the Evidence Act and after verification of the admitted signatures on Exhibits-12, 15, 16 and 17, came to the conclusion that the signatures on these documents [Receipt No. 14 - Exhibit-18] is of the petitioner-defendant and no one else. Petitioner-tenant, however, denied the same.
8. PW1, respondent-Prabhakar, stated in his evidence that after 1980-1981, "The defendant has started using the front of the suit room for preparation of Page 5 hard board boxes. This he started without my permission. I asked the defendant number of times orally not to do the commercial activities in the suit premises." The petitioner, by his letter dated 5th May, 1983 (Exhibit-C) requested the respondent-landlord to grant permission to install the machinery in the residential premises occupied by him. By a letter dated 5th May, 1983, the respondent-landlord had granted permission to run the business and to keep necessary machinery in the suit shop. However, by letter dated 3rd June, 1983, he withdrew the said permission as per legal advise and asserted not to do business or to put any machinery in the said premises, otherwise, legal action would be taken. The petitioner-tenant, however, continued the business in the whole premises even though it was let out for the residential purpose. Therefore, the respondent-landlord admitted that there was change of user as contemplated under the Act. By installing the said machine, the petitioner-tenant's action has created nuisance and annoyance. The premises in question are not in use for a continuous period of more than 6 months immediately for the purpose it was let out preceding the partition of the suit without any reasonable cause.
9. The suit, as filed by the Trustee on the basis of the landlord-tenant relationship, is maintainable. The payment of rent and rent and rent receipts justify the relationship of landlord and tenant.
10. There is no material or document on the record to support the petitioner's, case that the premises was let out for composite use and purpose. The evidence of Officers of the PMC through the Corporation's Register, in no way, helpful to decides the actual relationship agreed between the landlord and tenant. Merely because in the Registrar of the Municipal Corporation there is an entry of other adjacent shops including this premises, that itself cannot be conclusively sufficient prove that the tenancy was composite and the petitioner-tenant was using the said premises for both the purposes, since 1961-1962. Adjacent shops, even if are in use and occupation by other tenants for residential-cum-non-residential purpose, that itself cannot be a presumption to accept that the tenancy in question has been also composite one.
11. In the present case, as is borne out from the record, being a teacher, the petitioner could not do any other business and there was nothing on the record to suggest that he was doing the business in the said premises prior to the exchange of the premises. Even after 1977, as he agreed to occupy the premises in question for residential purpose, till 1981, even as per the landlord's own case, he was not using the said premises for composite purpose. Therefore, the petitioner unsupportatively submitted that the tenancy in respect of the earlier premises was composite and, therefore, after the exchange of the present premises, the suit premises was in no way intended to be occupied only for residential purpose. As the adjacent tenants are using the premises for both the purposes, the premises in occupation of the petitioner-tenant could not said to be let out only for residential purpose. Both the Courts, after, considering the material on the record, according to me, have rightly come to the conclusion that the tenancy from the inception was for residential purpose only. The premises were never let out for composite purpose. Even the exchanged premises were never let out for composite Page 6 purpose. It was with clear agreement let out only for residential purpose (Exhibit-16). The condition for the exchange was noted and acted upon by the parties. The endorsement at the back of the receipt further justifies the case of the landlord.
12. The letter dated 5th May, 1963 (Exhibit-C) further reflects that the petitioner-tenant sought permission from the landlord to install machinery in the premises in question, which was granted initially by the landlord. However, immediately by letter dated 3rd June, 1983, it was withdrawn. The respondent-landlord thereafter asserted not to install such machinery and not to use the said premises for any other purpose as it was let out for residential use only. Inspite of this warning, he continued to use the said premises for his business purpose of making hardboard boxes and installed the said machinery, without the permission and consent of the landlord. The admission again given by the plaintiff in the letter dated 5th May, 1963 (Exhibit-C) that they want to use the residential premises under their occupation for non-residential purpose by installing the new machinery as they were doing the business of making hard board boxes.
13. It is difficult to overlook the provisions of Section 25 of the Bombay Rents, Hotel Lodging House Rates (Control) Act, 1947 (for short "The Bombay Rent Act"). If the mandate of the provisions prohibit the landlord from using the residential premises for non-residential purpose and/or the landlord is prohibited further from allowing any tenant to use the residential premises for non-residential purpose and therefore, as per the legal advise if the landlord withdrew the permission, even if it was granted, that itself shows that in such cases, the principles of waiver or acquiescence in no way supports the case of the tenants. There is no question of waiver of acquiescence if any action is prohibited under the provisions of law. Therefore, even if the permission was granted initially, as the counsel appearing for the petitioners contended that it amounts to waiver and it is not permissible now for the respondent-tenant to withdraw the same. Having once granted the permission, it is final and binding. I am not convinced with these submissions. There is no question of granting permission by the landlord which is prohibited under the provisions of law. There is no question of granting or taking shelter by the petitioner -tenant under the umbrella of waiver or acquiescence. Both the Courts, therefore, according to me, are right in coming to the conclusion that the petitioner-tenant has changed the user of the premises and, therefore, breached the provisions of the Bombay Rent Act and Transfer of Property Act. The following case relied by the petitioner are distinct and distinguishable on facts itself.
14. The counsel appearing for the petitioner-tenant strongly relied on the authorities and contended that the provisions of the Evidence Act - Sections 43, 44 and 73 are in no way helpful to the Judge to verify the signatures of the parties. In the present case, as the respondent-landlord failed to discharge its burden by not proving the handwriting as the same was disputed by the tenant, the opinion expressed by the Trial Court and accepted by the Appellate Court is bad in law. He also relied on AIR 1954, Bom. 305 Madholal Sindhu v. Asian Assurance Co. Ltd. and Ors. for this. To this, the Page 7 learned counsel appearing for the respondent-landlord relied on Popli v. Canara Bank and Ors. and Ajit Savant Majagavi v. State of Karnataka. The relevant paragraph, according to me, concludes this issue also.
"But this does not mean that the Court has not the power to compare the disputed signature with the admitted signature as this power is clearly available under Section 73.".
15. Apart from the rent receipt (Exhibit-18) and endorsement made by the tenant thereon stating that they are agreeable to occupy the premises for residential purpose (Rahynya sathi), that admission further supports the landlord's case that the exchanged premises was in occupation of the tenant for residential purpose only as he agreed to occupy the premises for residential purpose only. There was no permission granted to use the said premises for composite purpose. The letter of the petitioner-tenant dated 5th May, 1983, itself endorses and confirms that he wanted to install machinery in the residential premises in question. The said permission was granted, but withdrawn with further assertion that the premises were let out only for residential purpose and, therefore, he should not use the said premises for any other purpose and not to install the machinery. This endorsement and letter by the respondent-landlord further confirmed that the premises in question was let out only for the residential purpose. These two documents support the case of the landlord and the findings given by the Courts below surrounding the said written documents. These documents further clarify the intention between the parties and the surrounding circumstances also support that the premises has been let out only for residential occupation. The other tenancy or neighbouring tenants' composite occupation in no way supports the existing intention and relationship between the present landlord and tenant.
16. The learned counsel appearing for the petitioner has relied on the Apex Court's decision in P.C. Purshottam v. S. Parimal and contended that once a document is properly admitted, the contents of that document are also admitted in evidence, though the contents may not he conclusive evidence. Exhibit-40 in the present case was signed document. The learned counsel for the respondent, however, objected and submitted that the admission of signature itself does not amount to admission of the contents of the documents. In the present case, without going into that controversy about the contents of the documents, the contents of Exhibit-48 are in fact further corroborated by the document on the record i.e. the letter 5th May, 1983, whereby, the tenant sought permission from the landlord for using the residential premises for non-residential purpose. The evidence of landlord itself shows that the premises were used for now-residential purpose only after 1981 or 1982. The premises was in residential occupation upto 1981.
Page 8 Therefore, in this background, apart from the admission and the signature, the contents of the documents Exhibit-40 read with the other facts and circumstances of the case, justify the landlord's case that the respondent-tenant was using the promises and it was let out only for residential purpose and not for non-residential use. In the case of Sant Ram v. Rajinder Lal and Ors. , the Apex Court has dealt with the fact and circumstances of that case where purpose of lease deed; was not clear. In the present case, intention and purpose was clear, as observed above. In the circumstances, the reliance on Madholal v. Asian Ass. Co. Ltd. (supra) also does not support the petitioner's case, as there is ample material on the record to show that tenancy was for residential purpose and the Trial Court has invoked the provisions of Section 73 and not of Sections 64 and 67 of the Evidence Act. In the present case, not only the signature, but the contents of the documents in question are also proved.
17. The evidence of the Officers of PMC read with the Shops and Establishments Act also no way supports the petitioner-tenant's case that the premises were let out since inception of the composite purpose in view of the above reasoning.
18. The petitioner-tenant cannot solely rely on the Ration Card without supportive documents to justify that they are still and using the premises for the residential purpose. The petitioner-tenant in the present facts and circumstances of the case, has not examined any neighbours to support his case that the premises is still in occupation for residential purpose. The evidence led by the landlord, except his words, in no way supported by any other material on the record. The two written documents placed on the record as referred above which, in a way, was an admission of the tenant himself that he was occupying the said premises for residential purpose only. Now in view of the same evidence and documents, it is clear that the petitioner has been using the said premises since 1981 and/or 1983 for non residential purpose. The tenant, therefore, breached the provisions of the Bombay Rent Act.
19. The Installation of machine without permission of the landlord whether creating nuisance or disturbing others has not been substantiated on the record. I am of the view that both the Courts below were right in arriving at the conclusion and passing the decree for possession.
20. In view of the Apex Court's decision, therefore, the authorities cited and relied upon by the learned counsel for the petitioner-tenant are not helpful to support his submissions.
21. After going through the material, as well as, the evidence on the record, including the documents as referred and relied by the parties there is no case of perversity as such made out by the petitioner. The view taken by both the Courts appears to be reasonable and within the framework of law, as well, as the record. In this background, I am taking into account all the above reasoning and in view of the concurrent findings given by the Courts below, I decline to interfere with the orders passed by the Courts below.
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22. Therefore, the Writ Petition is dismissed. The interim order stands vacated. Rule is discharged. No order as to costs.
23. At the request of the learned counsel for the petitioner, the effect and operation of this order is stayed for a period of six (6) weeks.
Issuance of certified copy expedited.
P.C.
At the request of the learned counsel for the petitioner, the effect and operation of judgment and order dated 3rd August, 2005, is stayed for a period of 8 weeks.
In view of the apprehension expressed by the learned counsel appearing for the respondent-landlord and to avoid further complication, the petitioner-tenant should not create any third party interest in the suit premises and/or p1 with possession of the suit premises during the period of stay of the judgment and order.
Issuance of certified copy expedited.