Bombay High Court Upholds Eviction of Tenant for Using Commercial Shop for Residential Purposes Under Section 13(1)(a) of Bombay Rent Act. Change of User from Business to Residence Constitutes Acts Contrary to Section 108(o) of Transfer of Property Act, Even Without Physical Damage.

Civil writ petition challenging concurrent eviction decrees passed by trial court and appellate court under the Bombay Rent Act.

Petitioners (original defendants) sought setting aside of the eviction decree and dismissal of the suit.

Petitioners challenged the judgment and order dated 26 August 1999 of the II Additional District & Sessions Judge, Kalyan, dismissing their appeal and confirming the eviction decree dated 12 January 1994 passed by the Joint Civil Judge Junior Division, Kalyan.

Trial Court decreed eviction on ground of commission of acts contrary to Section 108(o) of Transfer of Property Act read with Section 13(1)(a) of Bombay Rent Act; other grounds rejected. Appellate Court dismissed appeal confirming eviction.

Whether the use of a commercial shop for residential purposes by the tenant's relatives constitutes an act contrary to Section 108(o) of the Transfer of Property Act, 1882, so as to attract eviction under Section 13(1)(a) of the Bombay Rent Act, 1947, even in the absence of physical damage to the premises. Whether the concurrent findings of the lower courts that the suit premises were dominantly used for residence are perverse and warrant interference under Article 227 of the Constitution.

Petitioners argued that Section 108(o) requires damage or destruction to the property, and mere change of user without damage does not attract eviction. They relied on Sant Ram v. Rajinder Lal and argued that the bar under Section 25 of the Bombay Rent Act applies only to use of residential premises for commercial purposes, not vice versa. Respondent argued that the premises were let out solely for business, and the dominant use for residence by defendant nos. 3 to 5 constituted a clear breach of tenancy terms. They relied on Arul Jothi v. Lajja Bal and Jainath Matadin Chourasia v. Gopikishan Ramgopal Garg.

For eviction under Section 13(1)(a) of the Bombay Rent Act read with Section 108(o) of the Transfer of Property Act, it is not necessary that the tenant's act causes actual damage or destruction to the property; a change of user that is inconsistent with the purpose of letting, such as using a commercial shop for residential purposes, constitutes an act contrary to Section 108(o) and is a valid ground for eviction.

The suit has ultimately been decreed only on singular ground of commission of acts contrary to the provisions of section 108(o) of the Transfer of Property Act read with Section 13(1)(a) of the Bombay Rent Act. Perusal of the findings recorded by the Trial Court on Issue No.4 relating to commission of acts contrary to the provisions of Section 108(o) of the Transfer of Property Act, shows that the issue is answered in the affirmative in favour of the Plaintiff on the ground that Defendant Nos.3 to 5 were found to be dominantly using the suit shop for the purpose of residence. The ground of making additions and alterations and thereby causing damage to the suit premises is rejected by both the Courts. That there is no finding of damage to the suit premises and that therefore the ground under Section 13(1)(a) of the Bombay Rent Act has erroneously been accepted.

Plaintiff filed Regular Civil Suit No. 57/1981 in the Court of Civil Judge Junior Division, Kalyan, seeking eviction. Trial Court decreed eviction on 12 January 1994 on ground of Section 13(1)(a) read with Section 108(o). Defendants filed Regular Civil Appeal No. 218/1996 in the Court of District Judge, Thane, which was dismissed on 26 August 1999. Defendants then filed Writ Petition No. 6252 of 1999 in the Bombay High Court, which was dismissed on 16 October 2024.

• Transfer of Property Act, 1882: Section 108(o)
• Bombay Rent (Hotels and Lodging House Rates Control) Act, 1947: Section 13(1)(a), Section 25