JUDGMENT Y.K.Sangal. J. 1. This writ petition has been filed with the prayer to quash the orders dated 08th December, 1988 passed by the opposite party no. 2/Additional Judge, Small Causes Lucknow in SCC Suit NO. 370 of 1981and 23rd October, 1991 passed by opposite party no. 1/Vth Additional District Judge, Lucknow in SCC Revision No. 36 of 1989. 2. Heard learned counsel for the parties and perused the record. 3. From perusal of the record it reveals that this is a dispute between the landlord and the tenant. Both original landlord i.e. respondent no. 3 and tenant/petitioner have died during the pendency of the writ petition and their heirs have been substituted. Decree for eviction was sought on three grounds by the landlord that U.P. Act No. 13 of 1972 (hereinafter referred to as 'the Act') is not applicable on the building in dispute and the defendant/tenant has committed default in payment of the rent and he also use the building for other purposes than that of it was let out. By the concurrent finding, both the courts below held that provisions of the Act No. 13 of 1972 are applicable on the building in dispute. Suit of the plaintiff was also not decreed by both the courts below on the ground of default committed by the tenant for payment of the rent because on the date of first hearing in the suit all the dues i.e. cost of the suit, interest on the amount, due rent and mesne profit etc. were deposited in the SCC suit under Section 20 (d) of the Act and it was further held that tenant and his family members were not having any other accommodation in their possession in the area of Nagar Nigam, Lucknow so it was held that the tenant is not liable for ejectment on these two grounds. Finding of the trial court were not challenged by the landlord by filing the revision. After the decision of the revisional court also he did not file any writ petition before this Court challenging the above concurrent findings of both the courts below. At the time of final arguments in the writ petition, learned counsel for the respondent nos. 3 & 4 again has not challenged the findings of both the courts as above. After the decision of the revisional court also he did not file any writ petition before this Court challenging the above concurrent findings of both the courts below. At the time of final arguments in the writ petition, learned counsel for the respondent nos. 3 & 4 again has not challenged the findings of both the courts as above. In counter affidavit of respondent also in paragraph 21, it was stated that impugned order passed by the opposite party no. 1 & 2 are perfectly valid and in accordance with law. They did not suffer from any legal infirmity. From the above, it is clear that these findings of both the courts below are final. 4. Suit of the plaintiff for ejectment of the defendant-tenant was decreed only on the ground of inconsistent user of the building by the tenant without prior permission in writing from the landlord. As per case of the plaintiff, house in dispute was let out to the defendant tenant for residential purpose but later on tenant's son without prior permission of the landlord in writing started to use one outer room of the house for business purpose. His son is doing General Merchandise business there. On the other hand, case of the defendant-tenant is that originally this outer room was let out for business purposes by the landlord at the rate of Rs. 20 per month in the year, 1968 but later on whole of the house including that outer room was let out to the defendant-tenant. Both the courts below have not accepted the case of the defendant-tenant so the findings were challenged in the writ petition by the tenant. 5. The building can be let out for the following three purposes. 1.Residential 2.Business 3.Manufacturing If the dominant purpose for which the building is let out is maintained, the tenant may not become liable to be evicted. But if the building is let out for residential and business purposes or the tenant starts manufacturing activities or vice versa or in place of residential purpose starts business in the same then it would amount to change of user subject to the provisions of the Act. After the amendment under Section 20 in the Act, the tenant can neither use the building nor can do act which is inconsistent with the purpose for which the premise was let out without the written consent of the landlord. After the amendment under Section 20 in the Act, the tenant can neither use the building nor can do act which is inconsistent with the purpose for which the premise was let out without the written consent of the landlord. 6. As per own case of the landlord/respondent earlier the building in dispute was let out to the tenant for residential purpose and later on he started the outer room of the house for business purposes. When this business in the outer room was started and tenant has changed the purpose neither detailed in the notice issued under Section 106 of the Transfer of Property Act and under Section 20 of the Act nor in the plaint of the case. Nowhere also in the plaint and notice details of accommodation in tenancy were given by the plaintiff. On the other hand, defendant in paragraph 15 of the written statement and also in paragraph 3 of the Writ Petition had given the detail showing that four rooms, two Varandas and two Teen-shade accommodations along with amenities of Latrin and Bathrooms were let out. Only one room (outer) of this accommodation Undisputedly, is being used by the tenant for business purposes and rest whole of the accommodation is being used for residential purposes. Learned counsel for the petitioner argued that dominant use of the building if taken into consideration it is for residential purposes. He further argued that if small and insignificant portion of the building is put to business purposes, user of the building cannot be held to be for the purpose of other than for which the building was let out. In support of his arguments, learned counsel cited following cases : (1)Ram Prasad vs. Ravidndra Kumar Tiwari : It is dominant use of the building that has to be taken into consideration. A building let out for residential purposes, if is used by and large for residential purposes and only a small insignificant portion is put to business use and that too only in occasions, the user cannot be said to be for the purpose other than which the building was let out. It neither changes the nature of the building nor its user. It neither changes the nature of the building nor its user. In this case before the Hon'ble Judge a small part of the building was being used in connection with a tea stall maintained by the tenant and it was held that it cannot be characterized as user for the purposes other than for which he was admitted the tenancy. In this cases another case, Dr. Bashir Uddin vs. District Judge, Bulandshahar & others and Santram vs. Rajinder Lal & others were referred. In the later case, Hon'ble apex Court observed that it is impossible to hold that if a tenant who takes out petty premises for carrying on a small trade also stays in the rear portion, cooks and eats, he so disastrously perverts the purpose of the lease. A different 'purpose' in the context is not minor variations but majuscule in mode of enjoyment. This is not a case of a man switching over to a canteen business for closing down cobbler shop and converting the place into a residential accommodation. (2) Ram Swarup vs. Ram Niwas (Asthana,J) : In this case, defendant tenant was carrying on repair of Radios in Bathak in the accommodation let out for residential purposes. It was held that by repairing the Radios in the Bathak, the defendant had not acted in a manner as to bring a change in Bathak so that it no longer can be said to be used for residential purposes. (3) Om Prakash Jain vs. Chiranji Lal & others : In this case, building was let out for residential purposes but one portion of the same was used for storing goods. It was held that it is not covered by the word 'change of user'. (4) S.K.Banerji vs. Surendra Narain : In this case matter before this court was letting out for residential purposes but tenant started running Nursary School in small part of the demise premise, it was held that it does not constitute the change of user as contemplated by Section 20 (2)(d) of the Act. 7. No law in reply was cited on behalf of the respondent-landlord. It is not clear from the notice under Section 106 T.P. Act, plaint and also on oath statement of the plaintiff -landlord that since when the tenant-defendant started to use the outer room of the house for business purposes. 7. No law in reply was cited on behalf of the respondent-landlord. It is not clear from the notice under Section 106 T.P. Act, plaint and also on oath statement of the plaintiff -landlord that since when the tenant-defendant started to use the outer room of the house for business purposes. On the other hand, it is specific case of the defendant-tenant that since 1968, he is using this outer room for business purposes. The suit was filed in the year, 1981. In this matter, the trial court has closed the opportunity of the defendant to adduce the oral evidence. It is no where specifically denied by the landlord that this outer room is not used by the tenant as shop since the year, 1968. Why earlier upto the year, 1981 the landlord has not obstructed the use by the tenant as shop of this outer room, it is also not sufficiently explained on behalf of the respondent-landlord. Learned counsel for the petitioner argued that it amounts to the waiver of right of ejectment of tenant on the ground of inconsistent user and implied permission of the landlord also. In O.C.Oswal vs. V.K.Subbaio, the premise was let out for residential purpose. Case of the landlord was change of user but no objection by the landlord was raised for seven years. It was held that landlord accepted use of the building other than residential purposes. 8. Learned counsel for the respondent-landlord argued that these pleas of waiver and also of seeing dominant use of the building as residential purposes were not taken by the defendant in his written statement and no evidence was also adduced on his behalf in this regard. Learned counsel for the respondent argued that these are the new grounds which are beyond the pleadings and tenant cannot be permitted to raise these pleas at this stage of the case. No new facts were brought during the course of argument by the learned counsel for the petitioner. What was already on record on the basis of those facts only these legal pleas were raised by the learned counsel for the petitioner. Under the provisions of law, landlord has to establish the case of inconsistent user by the tenant. No new facts were brought during the course of argument by the learned counsel for the petitioner. What was already on record on the basis of those facts only these legal pleas were raised by the learned counsel for the petitioner. Under the provisions of law, landlord has to establish the case of inconsistent user by the tenant. Learned counsel for the petitioner argued that for the sake of arguments, if it is taken correct that outer room of the house was being used by the tenant for business purposes without permission in writing of the landlord, in the light of the law laid down referred above, this user is insignificant and for the purpose of Section 20 (2) (d) it does not constitute case of change of user. It is also established law that legal pleas and other pleas which goes to route of the matter can be raised at any stage of the case. Sufficient opportunity was allowed to the landlord to rebut the pleas taken by the tenant in his writ petition but no law was cited on behalf of the respondent/landlord in reply to the law referred above. 9. From the above all discussions and considering the arguments of learned counsel for the parties and the law laid down on the subject referred above, the writ petition is to be partly allowed and the order passed by the respondent nos. 1 & 2 are to be set aside in part. 10. The Writ Petition is partly allowed and the orders passed by the respondent Nos. 1 & 2 are hereby set aside upto this extent that suit filed by the plaintiff for ejectment of the defendant-tenant on the ground of inconsistent user is hereby dismissed. However, defendant -petitioner shall comply other part of the decree passed by the courts below for payment of rent and mesne-profit and cost of the suit etc. In the circumstances of the case, parties shall bear their own costs through out.