JUDGMENT : 1. Heard learned counsel for both the parties at admission stage. 2. Learned counsel for the defendant-appellant has prayed that the following substantial questions of law in the instant second appeal may be framed. 1. whether on the basis of pleading and evidence on record it can be said that the tenant has done any act which is inconsistent with the purpose for which he was admitted to the tenancy of the premises? 2. whether the finding of the Court below is perverse being contrary to evidence on record? 3. whether the plea of change of use and acquisition of alternative accommodation is available to the new landlord who has purchased the premises during the pendency of the suit? 3. The brief facts giving rise to this second appeal are as follows : 4. The original plaintiff was M/s. Rajputana Stores Pvt. Ltd. Jaipuria Mension, Mirza Ismail Road, Jaipur who filed the suit against the appellant-defendant for eviction and arrears of rent under the provisions of Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (hereinafter to be referred as "the Act of 1950"), in the Court of Additional Munsif No. 2, Jaipur City, Jaipur on 16.8.1977 stating therein that the disputed premises were taken on rent by the defendant-appellant at the monthly rent of Rs. 25/ and, for that, a rent deed was also got executed by defendant-appellant in favour of original landlord, the same is marked as Exhibit-4 dated 3.8.1957. During the pendnecy of the suit, the original plaintiff-M/s. Rajputana Stores Pvt. Ltd. sold the disputed premises to M/s. Sanmati Holdings Pvt. Ltd. which is now the respondent-plaintiff in this appeal through a sale deed dated 31.5.1989. Thus, since thereafter the plaintiff-M/s. Sanmati Holdings Pvt. Ltd. became the plaintiff-landlord in place of Rajputana Stores Pvt. Ltd. The written statement was also filed during the pendency of the suit in the lower Court. 5. Thus, since thereafter the plaintiff-M/s. Sanmati Holdings Pvt. Ltd. became the plaintiff-landlord in place of Rajputana Stores Pvt. Ltd. The written statement was also filed during the pendency of the suit in the lower Court. 5. An application was moved on behalf of plaintiff-respondent to amend the plaint under Order 6, Rule 17 of Code of Civil Procedure which was allowed by the trial Court vide order dated 15.7.1999 and thereafter amended plaint was filed in the trial Court on 29.10.1999 by which another ground of eviction under section 13(1)(d) of the Act of 1950 was taken by plaintiff-respondent that the disputed premises were rented out for the residential purposes while they were being used by the defendant-appellant for commercial purposes. 6. After that amendment, issues were also amended and one more issue No. 13 was added by the lower Court on 18.11.1999 in the following manner:- Whether the disputed premises were given to the defendant-appellant for the residential purpose and thereafter the defendant-appellant has made change of user? 7. After conclusion of the trial and after recording the evidence led by both the parties, trial Court vide its judgment and decree dated 13.3.2000 decided the issues framed by it in the following manner : On 3.8.1957, defendant-appellant executed a rent note Exhibit-4 in favour of original plaintiff and thus decided issued No. 2 in favour of plaintiff-respondent. Learned trial Court came to the conclusion that no case of subletting was found proved and thus decided issue No. 3 against plaintiff-respondent; defendant-appellant has got alternative accommodation for his residential purpose and thus decided issue No. 4 in favour of respondent-plaintiff. Issue on default was decided against plaintiff-respondent; issue No. 6 was not pressed. Issue Nos. 7, 8 & 9 were decided against defendant-appellant and the main issue No. 13 was decided against appellant-defendant and in favour of plaintiff-respondent holding that the appellant-defendant has used the premises for commercial purpose in place of residential purpose without prior consent of the landlord as he has made the change of user of the rented premises therefore, the plaintiff-respondent is entitled to a decree of eviction on the ground mentioned under section 13(1)(d) of the Act of 1950. Accordingly, the learned trial Court decreed the suit of the plaintiff-respondent for eviction of the disputed premises against defendant-appellant. 8. Aggrieved from the judgment and decree dated 13.3.2000 passed by Addl. Civil Judge (Jr. Accordingly, the learned trial Court decreed the suit of the plaintiff-respondent for eviction of the disputed premises against defendant-appellant. 8. Aggrieved from the judgment and decree dated 13.3.2000 passed by Addl. Civil Judge (Jr. Division) No. 3, Jaipur City, Jaipur, first appeal was preferred by the defendant-appellant which was transferred to Learned ADJ No. 9, Jaipur City, Jaipur and the same was numbered as appeal No. 20/2000. The first appeal was decided by the learned Addl. District Judge No. 9, Jaipur City, Jaipur vide judgment and decree dated 29.1.2001 by which he dismissed the appeal and upheld the judgment and decree passed by the trial Court. 9. The first appellate Court, on issue No. 13 which pertains to change of user came to the conclusion that since the premises were rented out for residential purposes but they were being used by defendant-appellant for commercial purposes, thus, it was inconsistent with purpose for which premises were given on rent and further came to the conclusion that plea of acquiescence of landlord would not be available to defendant-appellant. Thus, first appellate Court has upheld the finding on issue No. 13. 10. Aggrieved from the judgment and decree dated 29.1.2001 passed by Addl. District Judge No. 9. Jaipur City, Jaipur, this second appeal has been preferred by the defendant-appellant and in this appeal it has been argued that the above-mentioned three substantial questions of law may be framed. 11. On the contrary, it has been argued on behalf of plaintiff-respondent that the said questions which have been alleged by the learned counsel for the appellant are not pure substantial questions of law but questions of fact, hence they need not be decided in this second appeal, therefore, this second appeal should be dismissed. 12. I have heard learned counsel for both the parties. 13. 12. I have heard learned counsel for both the parties. 13. Before proceeding further, it may be stated here that the learned counsel for the defendant-appellant has relied on the following two authorities : (1) D.C. Oswal v. V.K. Subbiah & Ors., AIR 1992 SC 184 in which it was held: "Eviction-Change of user-Premises let out for residential purpose=Change of user-No objection was taken by land- lord for 7 years-Held, Landlord had accepted other than residential user." (2) Shantinath S. Ghongade v. Rajmal Utam Chand Gugale, decided by Bombay High Court wherein following proposition of law was laid down : "Premises let for residential purpose, but tenant using the premises for commercial purpose Landlord not exercising his right to eject tenant-Landlord subsequently selling the premises-Purchaser cannot eject tenant for breaches committed by tenant before the purchase." 14. On the contrary, learned counsel for the plaintiff-respondent has placed reliance on another Supreme Court Judgment Shrinavas Kesherlal Palod v. Vital Shivagir Gosavi reported in 1996 (2) Vol. VII All India Rent Control Journal 126 wherein it has been held "Bombay Rent Hotel and Lodging House Rates Control Act, 1947-Section 13(1)(a)-Change of user for 47 years-No action taken by landlord-Acquiescence does not save tenant from decree of eviction." 15. The question that now arises for consideration is whether the above substantial questions of law should be formulated for decision of this Court or not in this second appeal. 16. There is no dispute in the present case on the point that the original plaintiff-respondent was Rajputana Store Pvt. Ltd. and thereafter the present respondent-plaintiff became the landlord of the appellant-defendant. Since 1964, premises are being used not for residential purposes but for commercial purposes. The plea of plaintiff-landlord that the tenant has assigned, sublet or otherwise part with the possession has been rejected by the Courts below. Thus, no case for subletting was found proved against defendant-appellant. 17. So far as the fact whether rent note Exhibit-4 was executed by the defendant-appellant or not in favour of original plaintiff is concerned, it is a matter of pure question of fact and therefore need not be answered in this second appeal. The findings of both the Courts below are that the defendant-appellant executed Exhibit - 4 rent note in favour of original plaintiff are liable to be accepted. In rent note Exhibit-4, there is clause 5 which runs as under : "5. The findings of both the Courts below are that the defendant-appellant executed Exhibit - 4 rent note in favour of original plaintiff are liable to be accepted. In rent note Exhibit-4, there is clause 5 which runs as under : "5. That the tenants' have taken the above said property for residential purposes and have agreed not to use the same for any other purpose without the express written consent of the landlords." 18. In the present case, the finding of the lower Court is that premises were being used by the appellant-defendant for commercial purposes and not for residential purposes without the consent of Ex or present landlord but the fact that remains is that since 1964 the disputed property are being used for commercial purposes is well proved and it is also well proved that in the year 1989, the present landlord stepped in place of previous landlord. 19. It is also not in dispute that in the year 1999, the ground of change of user under section 13(1)(d) of the Act 1950 was, for the first time, raised by plaintiff-respondent through amendment of plaint and the same was allowed and issue No.13 pertaining L to Section 13(1)(d) of the Act of 1950 was framed by the trial Court and both the Courts below decided issue No. 13 in favour of landlord respondent. 20. In my considered opinion and looking to the facts and circumstances of the case that the question how the premises was used by the tenant might be a question of fact, but how the user was changed by tenant is a question of law. 21. Hence, this second appeal is admitted. The following substantial question of law arises for consideration in this second appeal : 1. whether by using the premises for commercial purposes instead of residential purposes, the defendant-appellant has done any act which is inconsistent with the purpose for which he was admitted to the tenancy of the premises or which is likely to affect adversely and specially the landlord's interest vested therein or whether plea of acquiescence of landlord respondent would save the present appellant-defendant-tenant from the decree of eviction as provided under section 13(1)(d) of the Act of 1950 or not? 22. The substantial question of law has been framed keeping in mind the above two authorities of Hon'ble Supreme Court which lay down law different to one another. 23. 22. The substantial question of law has been framed keeping in mind the above two authorities of Hon'ble Supreme Court which lay down law different to one another. 23. Since, the record has already been received and both the parties are represented through their counsel, the appeal be listed for final hearing in the month of July, 2001.Counsel appeared.