JUDGMENT - This is a tenant's writ petition against the order of the learned Resident Deputy Collector, Amravati granting respondent landlady permission to terminate the tenancy of the petitioner on the ground that the petitioner tenant had changed the user of the tenanted premises and it arises out of the following facts. 2. A two room tenement belonging to the landlady was let out to the tenant at the monthly rent of Rs.23. On 27-8-1971, the landlady filed a petition before the Rent Controller at Amravati asking for permission to terminate the tenancy of the tenant on several grounds as follows: i) That the tenant was a habitual defaulter in the payment of rent; ii) That the tenant had committed a change of user; iii) That the tenant had secured alternative accommodation; iv) That the landlady required the suit premises reasonably and bona fide for her personal use. The tenant resisted this petition challenging all the grounds mentioned by the landlady in her petition. 3. On a consideration of entire evidence the learned Rent Controller dismissed the application holding on all counts against the landlady. Thereafter the landlady preferred an appeal and this appeal was heard by the learned Resident Deputy Collector at Amravati. The appellate Court concurred with the finding of the Trial Court so far as the contention of habitual default, alternative accommodation for the tenant and bona fide requirement of landlady were concerned, he rejected landlady's petition based on these three grounds. But he disagreed with the trial Court on the ground of change of user and he held that the tenant was guilty of change of user of the residential premises and so he granted permission to the landlady to terminate the tenancy of the tenant on this ground. Being aggrieved by this decision, the tenant has filed this writ petition. 4. It was contended for the landlady that the learned Resident Deputy Collector was right in granting permission to terminate the tenancy on the ground of change of user and Mr. Shelat appearing for the landlady respondent further submitted that he was entitled in this petition to support the finding of the Resident Deputy Collector granting permission to the landlady to terminate the tenancy even on the ground on which the Resident Deputy Collector had not granted permission and urged that the Resident Deputy Collector was wrong in deciding those points against the landlady. Then, the very first question that arose for consideration is whether without filing any petition or any cross-objections, the landlady would be entitled to raise these pleas in this petition. Mr. Shelat appearing for the landlady invited my attention to a decision of a Division Bench of this Court in Special Civil Application No. 577 /72, 578/72 and 579/72 decided sometime prior to 22-2-1980 and 25-2-1980. 5. It appears that these three petitions were filed by tenant feeling aggrieved by the order of Resident Deputy Collector and these three petitions came for decision before Padhye J. Padhye J. made reference to the larger Bench in respect of two questions. We are not concerned with the first question that was referred to the larger Bench by Padhye J. but the second question was as follows: "Whether the landlady without preferring any appeal or cross-objection can support the order of the Rent Controller or the Resident Deputy Collector by challenging the adverse finding pronounced against him, so far as the other grounds are concerned in a writ petition ?" The Division Bench consisting of Gadgil and Waikar JJ. held as follows: "The landlady without preferring any appeal or cross-objections in a writ petition can support the permission that is ultimately granted by the Rent Controller on the Resident Deputy Collector by challenging the adverse findings pronounced on the other ground." Mr. Deshpande appearing for the petitioner urged that the facts of this ruling are not applicable to the facts of the instant case and therefore the ratio in that decision was not applicable to the facts of the instant case. I am unable to agree with him and from the law laid down by the Division Bench, it is apparent that the landlady, without filing any petition or cross objection can challenge adverse findings in the writ petition filed by the tenant. I, therefore, allow the landlady to raise the contentions which were negatived by the Resident Deputy Collector. 6. Mr. Shelat appearing for the landlady presses into service only two grounds out of the several grounds rejected by the learned Resident Deputy Collector. The first ground is that the tenant was a habitual defaulter in payment of rent and the second ground was that the landlady reasonably and bona fide required the suit premise for her personal occupation. 7. Mr. Shelat appearing for the landlady presses into service only two grounds out of the several grounds rejected by the learned Resident Deputy Collector. The first ground is that the tenant was a habitual defaulter in payment of rent and the second ground was that the landlady reasonably and bona fide required the suit premise for her personal occupation. 7. First of all, I will consider these two grounds and then proceed to the main petition where the tenant challenged the finding of the Resident Deputy Collector that the tenant was guilty of change of user. 8. So far as, question of habitual default is concerned, it is apparent that in the petition that was filed on 21-8-1971, the landlady has made only a vague allegation in para 2 that the tenant did not pay rent regularly and remained habitually in arrears of rent and, therefore, she was a habitual defaulter. During the course of argument, it was urged that a schedule was not filed along with petition. Mr. Shelat was right when he urged that a Schedule was not a necessity as per law and that the Schedule is filed for the sake of convenience to ascertain the question whether tenant committed default in payment of rent on a particular month. But all the same, it is significant to note that in this petition filed on 21-8-1971, a copy of which is produced at Annexure A to this petition, there is no allegation that the tenant was in arrears of rent for any month prior to filing of this petition. It appears further that after two or three months landlady filed another petition contending that the tenant had committed default in payment of rent for three months and it appears further that after a lapse of certain period, landlady filed another petition contending that the tenant had committed default in payment of rent thereafter. On this point, it is the contention of the tenant that the rent was actually tendered to the landlady but she refused to accept it and hence the amount was sent to her by money order, which was also refused by the landlady. On behalf of the tenant her son is examined. Mr. On this point, it is the contention of the tenant that the rent was actually tendered to the landlady but she refused to accept it and hence the amount was sent to her by money order, which was also refused by the landlady. On behalf of the tenant her son is examined. Mr. Shelat was right, when he urged that throughout his testimony, the son of the tenant never stated that he had personally gone to tender the amount of rent and that she refused it. All the same, he has stated that the rent was sent through Eknath, who was his servant and that this rent was refused. It is true that Eknath is not examined but whether rent was actually offered or not is a question of fact and on an appreciation of oral evidence both the Courts below have held that the rent was refused when it was tendered. There is one other strong circumstance on record to hold that the contention of tenant may be true. A money order for the rent covering from July 1971 to the end of October, 1971 was sent by the tenant to the landlady and that money order was refused. It is at Exh. N. A. 1. In the coupon of the money order, it is clearly stated by the tenant that the rent was tendered to her twice or thrice, prior to sending of this money order and that it was refused and hence this amount was sent by money order. In view of all these facts I am in agreement with the observations made by the learned Resident Deputy Collector that the landlady has purposely done so to brand the tenant as defaulter. I am, therefore, not at all satisfied that the tenant is habitual defaulter and hence this ground must be negatived and the finding of the Court below must be confirmed. 9. The other ground is about the bona fide personal need of the landlady. Mr. Shelat appearing for the landlady urged before me that since after the filing of this petition, the landlady has retired and she wants this property for personal use and occupation.' It is significant to note that the petition .is never amended on this ground. 9. The other ground is about the bona fide personal need of the landlady. Mr. Shelat appearing for the landlady urged before me that since after the filing of this petition, the landlady has retired and she wants this property for personal use and occupation.' It is significant to note that the petition .is never amended on this ground. In fact, it was incumbent upon the landlady to amend the petition on the strength of the subsequent event of retirement happening after filing of the original petition. As no such amendment is made, I do not think that this fact can be taken into consideration for the first time in this writ petition because several other considerations would arise and Mr. Shelat was very fair enough to admit that consideration of facts is likely to arise if the landlady is allowed to amend the petition at this stage. Surely several questions of facts would arise for consideration. It is vaguely suggested on behalf of the tenant that the landlady has constructed one two storied house in the open space adjacent to the tenanted premises. It is the contention of the tenant that the landlady has let out certain portion of that new construction. So all these facts will have to be considered before considering the question of bona fide requirement vis-a-vis the question of retirement of the landlady. Even now, the landlady is free to take action in the changed circumstance of her retirement and she is free to allege that in view of her retirement, she is not occupying a Government quarter as a Principal and she now requires the premise reasonably for her personal use. This decision would not be a bar in the way of landlady to seek such relief. At present, I am constrained to decide this matter on the strength of evidence as it stands and the evidence on record clearly shows that at the material time, the landlady was occupying a bungalow in the Campus of D. F. D. College for Girls and there is nothing on record to hold that this bungalow was quite in Sufficient as not to accommodate her husband and sons in that quarter. In this respect, Mr. Shelat urged that the tenant also has admitted that she has secured one room in the Nurses' Hostel and Mr. In this respect, Mr. Shelat urged that the tenant also has admitted that she has secured one room in the Nurses' Hostel and Mr. Shelat wanted to compare the availability of the accommodation for the tenant with the availability of the accommodation for the landlady also. I do not think, a Principal's quarter in the Campus of D. F. D. College though for Girls, stands on the same footing as a room in a Nurses' Hostel. It is clear that none except the nurses is allowed to stay in the Nurses' Hostel but that is not the position so far as the Principal's quarter in the Campus of D. F. D. College for Girls is concerned. The landlady herself states that it is not advisable for males to stay in the quarters of the Principal because the D. F. D. College is for Girls. What the landlady has stated above is about advisability and not about the impossibility. It is impossible to imagine that in a Nurses' Hostel, her son etc: would be allowed to stay. That is a room granted to the nurses only in view of her capacity as a nurse and the hostel is of the nurses only. That is not so far as the Principal's quarter is concerned. I am therefore, satisfied that the landlady has failed to prove that she bona fide requires the said premise for personal use. 10. Now the last question is about the change of user. It is an admitted fact that the tenement was let out for the purpose of residence. We can assume on the admission of the tenant's son that at least a Circulating Library was opened in one of the two rooms. It is contended by the tenant that this library was opened only for a short time and it was closed subsequently. First of all, Mr. Shelat disputed this proposition and according to him a Circulating Library is still continuing because there is no reference to the closure in the written statement. His second submission is that it amounts to change in user, even though circulating library might have been existing for a short period. Mr. Deshpande for the petitioner alleged that it cannot amount to change in user. His second submission is that it amounts to change in user, even though circulating library might have been existing for a short period. Mr. Deshpande for the petitioner alleged that it cannot amount to change in user. The evidence on record shows that the son of the tenant continued to stay in these two rooms even during the period during which this circulating library was opened in the tenanted premises. It is nowhere suggested that the tenant had shifted from these two rooms and that a reading room or a circulating library was established in a portion of these two rooms. The evidence on record shows that only a cup-board was kept in one of the rooms and that magazines and books were stored in that cup-board. In the face of these facts, I do not think this amounts to change in user. By holding so, the Resident Deputy Collector has certainly committed an error of law. There are some rulings which can be considered on this point. Mr. Deshpande appearing for the petitioner relied upon a decision of M. P. High Court in Aga Abdul Jaffar Khan v. J. Joshi1. This also is a ruling under the C. P & Berar Letting of Houses and Rent Control Order, 1949, and the present petition before me-also is under the same Act. In that ruling, the tenant who occupied the house for residential purposes set up an Ice Candy Machine in the small portion of the premises. The landlord alleged that the premises were converted to a non-residential purpose and sought permission under clause 13 (3)(iv) of the C. P. & Berar Letting of Houses and Rent Control Order i.e. the same provisions, under which the present landlady seeks permission to terminate the tenancy of the tenant. The M. P. High Court held that even if a house is not used wholly but is used mainly for purposes of residence, it would be deemed to be a house which is let for residential purposes and vice versa. It was further held that in the absence of proof it could not be deemed to have been used for nonresidential purposes simply because in a small part of premises, an ice candy machine had been set up. It was further held that in the absence of proof it could not be deemed to have been used for nonresidential purposes simply because in a small part of premises, an ice candy machine had been set up. Hence in this M. P. ruling also in the part of the residential premise an ice candy machine was set up and even then that High Court held that it does not amount to change in user. This is a very good authority in favour of the tenant. Mr. P. Y. Deshpande then relied upon a decision of Madras High Court in Dakshina Moorthy v. Thulja Bai2, and he placed reliance on para 24 of this judgment. In this appeal, the Fun Bench of Madras High Court referred to the ruling of K. Krishnan Nair v. Valliammal3, and the Full Bench reproduced the following observations of that Court: "I consider that, in such cases, the primary purpose for which the building is let out or used should be the determining factor. A lawyer may use a room of his house for giving legal advice to his clients, an astrologer may use a room for his house for giving predictions; a barber may use a room of his house for shaving his clients; but such use of a room will never make a house itself one used for non-residential purpose." These observations, therefore, clearly support the case made out by the tenant, although as pointed out by Mr. Shelat the actual question for consideration in Madras ruling was slightly different. Apart from that the observations that are reproduced from earlier ruling clearly support the case made out by tenant. In A. I. R. 1949, Madras, 785, a portion of the residential premise was used for making Apalams and it was held that there was no change in user. As against this ruling, Mr. Shelat relied upon a decision of this Court in Abdul Sattar v. Mulchand4. In this ruling a tenant converted a handloom into a power-loom and the learned Judge of this Court held that it amounts to change in user in accordance with section 13 (3) (iv) of the present Rent Control Order. I am perfectly in agreement with these observations and I am satisfied that these observations are not applicable to the facts of the instant case. I am perfectly in agreement with these observations and I am satisfied that these observations are not applicable to the facts of the instant case. Conversion of hand-loom into power-loom certainly amounts to change in user and that analogy is not applicable to the facts of the instant case. On this point there is an old ruling of this Court in Laxman v. Balkrishna5. Therein, Division Bench of this Court observed as follows: "On that question of law, if premises are used for the purpose of residence then the protection continues with regard to such premise and does not cease merely because the protection in respect of other premise under the Act ceases on August 1931, even though a portion of such premise, may be used for business purpose." The fact that a man carries on business or work in the same premise, which he uses for dwelling in cannot thereby prevent those premises coming into the category of premises used for dwelling. This authority was shown to Mr. Shelat and he was asked to submit his say in this respect. Mr. Shelat submitted that this ruling did not apply to the instant case but I am not ill agreement with him and I am satisfied that these observations, a fortiori, apply to the facts of the instant case. I have pointed out that the established fact is that a small portion of the tenanted house was used by the tenant for reading room or circulating library and hence it does not amount to change of user as contended by the landlady and in this view of clear position of law, it is apparent that the learned Resident Deputy Collector had committed error of law in granting permission to the landlady to terminate the tenancy of the tenant and in this view of the matter, the petition deserves to be allowed and accordingly the Special Civil Application is allowed. Rule is made absolute and the permission granted by the Resident Deputy Collector to the landlady to terminate the tenancy of the tenant on the ground of change of user is hereby quashed but in the circumstance of case, there will be no order as to costs.