JUDGMENT 1. - These two writ petitions are filed by landlord and tenant against each other both assailing the judgment dated 26/03/2011 passed by the Appellate Rent Tribunal, Kota. 2. Brief facts giving rise to the petitions are : that Ghisi Bai and Kailash Chand (who shall 2 hereinafter be jointly referred as "landlord") filed a suit for eviction against Mohan Lal , Maheshwari (who shall hereinafter be referred as "tenant") on the ground of bona fide necessity, change of user without permission, 6 damage to suit shop by making material alteration, nuisance and availability of alternative accommodation in the year 2007. It was alleged that the shop was given on rent in the year 1976. The adjacent shop was given to one Jaffar Mohammad. That Dal Chand, son of landlord Ghisi Bai required the shop for his reasonable bona fide necessity as he wanted to start a readymade garments business in the disputed shop by joining the shop let out to the firm. It was alleged that the shop was let out to tenant Mohan Lal Maheshwari for running the photo studio. He has however without permission from the landlord started readymade garments business from the same shop. He has thus used the shop for the purpose other than the one for which it was let out thereby adversely affecting the interest of the landlord. The tenant for the purpose of setting up the shop of readymade garments has by use of drilling machine put the fixtures and furniture and also put false ceiling for which purpose he has put certain angles. He has thereby caused substantial damage to the let out shop. Tenant used the cut outs and display on the public footpath facing the shop, which tantamount to nuisance. 3. That the tenant-Mohan Lal Maheshwari opposed the eviction petition and denied that the shop was required for personal bona fide necessity of the landlord. The eviction petition filed by the landlord against Jaffar Mohammad Tailer, tenant in the adjoining shop has been dismissed. Kailash Chand, son of Ghisi Bai, the landlord, is already running the business of sarees and clothes from the shop in the name and style of M/s. Kailash Chand Poonam Saree. In fact, one more shop was available to the landlord, which they let out to Smt.Divya Panjwani by accepting some amount in goodwill. She is running the retail garments business from that shop. In fact, one more shop was available to the landlord, which they let out to Smt.Divya Panjwani by accepting some amount in goodwill. She is running the retail garments business from that shop. Necessity of the landlord therefore cannot be said to be bona fide and reasonable. In para 3 of the written statement, tenant stated that the photo studio was being run regularly in the suit shop since 1976 and even till now, photo studio existed there. The tenant only additionally started the business of garments from the same shop after obtaining oral permission from the landlord for last 4-5 years because from the business of photo studio, he did not have sufficient income. Therefore, with the consent of the landlord, he started business of readymade garments also. Allegations of nuisance, material alteration etc. were denied. 4. The learned Rent Tribunal vide order dated 18/07/2009 allowed the petition for eviction on the ground of bona fide necessity. However, the issue relating to change of user, material alteration and nuisance etc. was decided against landlord. Both tenant and landlord filed appeals before the Appellate Rent Tribunal. Learned Appellate Rent Tribunal reversed the finding on the issue of bona fide necessity recorded by the Rent Tribunal in favour of the landlord. It however directed eviction of the tenant on the ground of change of user. Therefore, the tenant as well as the landlord have filed these writ petitions assailing the finding recorded by the Appellate Rent Tribunal against them. 5. I have heard Shri N.K. Maloo, learned senior counsel appearing for tenant-Mohan Lal Maheshwari and Shri Saransh Saini, learned counsel appearing for landlord-Smt.Ghisi Bai and Kailash Chand. 6. Shri N.K. Maloo, learned counsel appearing for tenant has argued that the learned Appellate Rent Tribunal has erred in law in deciding the issue of change of user against the tenant and recording finding that the tenant was earlier doing the business of photo studio and now started the business of readymade garments, this therefore constituted change of user. Landlord has failed to prove any rent note so as to show that the shop was let out only for running the photo studio therefore it cannot be said that tenant was using the tenanted premises for the purpose other than that for which it was let out to him. Landlord has failed to prove any rent note so as to show that the shop was let out only for running the photo studio therefore it cannot be said that tenant was using the tenanted premises for the purpose other than that for which it was let out to him. If the shop was let out for running the business, it makes no difference whether the business is of photo studio or readymade garments. The actual user i.e. the business has not been changed. Findings recorded by the learned Rent Tribunal on Issue No.2 are therefore perverse and erroneous. Learned senior counsel referring to Section 9(d) of the Rent Control Act, 2001 argued that according to said provision, decree of eviction could be passed only if it was proved that tenant has created a nuisance or 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 substantially the landlord's interest. Issue of nuisance has been decided by both the Tribunals against the landlord. It has not been proved as to what act of the tenant was inconsistent with the purpose for which he was admitted to tenancy. It has also not been proved that in what way his starting business of readymade garments was likely to adversely and substantially affect the interest of the landlord. It is however argued that Appellate Rent Tribunal was perfectly justified in reversing the finding recorded by the Rent Tribunal in favour of the landlord. The landlord actually did not require the suit shop for the purpose of applicant No.2. What was pleaded by the landlord in para 2 of the eviction petition was that applicant No.2 wanted to start the business of readymade garments. This does not prove the bona fide necessity. Landlord did not anywhere plead in the petition that the eviction petition was filed against him in relation to the shop of Vijay Market Ghantaghar, Kota in which they are presently running their business. In fact, applicant No.2 Kailash Chand Chhitora in his statement before the Tribunal has stated that shop belongs to his mother and that he was merely working as an associate. He has also admitted that he was not proprietor of the said firm M/s. Kailash Chand Poonam Saree in which name business was being run. In fact, applicant No.2 Kailash Chand Chhitora in his statement before the Tribunal has stated that shop belongs to his mother and that he was merely working as an associate. He has also admitted that he was not proprietor of the said firm M/s. Kailash Chand Poonam Saree in which name business was being run. After the death of Dalchand husband of petitioner No.l, Kailash Chand petitioner No.2 became proprietor of their business. Evidence proved that shop become available to the landlord, yet he has let out the same to Smt. Divya Panjwani. If at all his need was bona fide, he should have started business from that shop rather than letting it out. In support of his argument, learned senior counsel for the tenant has placed upon the judgments of Supreme Court in Hari Rao v. N.Govindachari and others, (2005) 7 SCC 643 : AIR 2005 SC 3389 and Dinesh Kumar v. Yusuf Ali, (2010) 12 SCC 740 : AIR 2010 SC 2679 . It is therefore prayed that writ petition of the landlord be dismissed and that of the tenant be allowed. 7. Per contra, Shri Saransh Saini, learned counsel appearing for the landlord has argued that the learned Appellate Rent Tribunal has committed serious error of law in reversing the finding of bona fide necessity of the landlord recorded by the Rent Tribunal in their favour by describing it as a mere desire and not necessity, whereas pleadings were very clear and definite inasmuch as, it was also pleaded that landlord has also filed a suit for eviction against Jaffar Mohd. and that by getting both the shops vacated, he would join them together to make a big shop and start business of readymade garments. The Appellate Rent Tribunal erred in passing the impugned-order on irrelevant consideration. It was not justified in concluding that landlord has not come with clean hands as they have not pleaded in the eviction petition that Kailash Chand was working in rented shop. This fact was very much known to the tenant as the same was mentioned in the affidavit filed by the landlord before the Tribunal and thus no prejudice was caused to the tenant. Learned Appellate Rent Tribunal failed to appreciate that in the year 1999, landlord was working with his father, who was running his business from rented shop. This fact was very much known to the tenant as the same was mentioned in the affidavit filed by the landlord before the Tribunal and thus no prejudice was caused to the tenant. Learned Appellate Rent Tribunal failed to appreciate that in the year 1999, landlord was working with his father, who was running his business from rented shop. That shop was rented shop and Kailash Chand had to vacate the shop on 31/05/2009 pursuant to the order of this Court dated 19/ 08/2008 passed in S.B. Civil Writ Petition No.6229/2008 : Smt. Ghisi Bai & Anr. v. Shyam Sunder Lohiya . This Court can take judicial notice of the fact that Kailash Chand had to vacate the shop on the date of decision of the aforesaid writ petition. Landlord submitted copy of the aforesaid judgment dated 19/08/2008 before the learned Rent Tribunal. Learned counsel argued that shop in the present case was let out to the tenant in the year 1976 and since then, tenant was running the photo studio in that shop. Even in the absence of rent note, it has been established that the shop was continuously and always being used for the business of photography. The tenant failed to prove that any oral permission was given by the landlord to him to start the readymade garments business from the same shop and for that purpose, making material alteration by putting the furniture and fixing the fixtures by drilling as well as fixing angles etc. In cross-examination, tenant has admitted that he was unaware whether any other shop was available with landlord Kailash Chand after his shop in Vijay Market, Ghantaghar, Kota got vacated. He also pleaded ignorance of the fact that three shops in the past were there with the landlord. Change of user also has been fully established inasmuch as, Appellate Rent Tribunal has rightly held that change of user has proved. 8. I have given my anxious consideration to the rival submissions and perused the material available on record. 9. Dealing with first of all the ground of bona fide necessity, finding on this argument was recorded in favour of the landlord by the Rent Tribunal, which noted that shop was let out to Smt. Divya Panjwani in 1999, whereas the suit for eviction of the tenant from the suit shop was filed in 2007. 9. Dealing with first of all the ground of bona fide necessity, finding on this argument was recorded in favour of the landlord by the Rent Tribunal, which noted that shop was let out to Smt. Divya Panjwani in 1999, whereas the suit for eviction of the tenant from the suit shop was filed in 2007. That shop perhaps may have been available to the landlord in 2007, which became bona fide necessity because the shop in which Kailash Chand was working with his father earlier and after his death, with mother had to be vacated because a petition for eviction filed by the landlord for their eviction was allowed. No doubt, in the originally filed eviction petition, this was not pleaded by him that the rented shop in which Kailash Chand was running the business left by his father and after his death, had to be vacated in compliance of the order passed by this on 19/08/2008 in S. B. Civil Writ Petition No. 6229/2008, Smt.Ghisi Bai & Anr. v. Shyam Sunder Lohiya . But that development has to be appreciated in the light of the fact that petition for eviction was filed on 18/05/2007, whereas judgment of the High Court for vacating the shop was passed against the landlord in the present case on 19/08/2008. This fact has been amply stated by the tenant in last para of his affidavit filed before the Tribunal stating that Kailash Chand was running business of clothes from the shop in Vijay Market, Ghantaghar, Kota, which shop was earlier being run by his father Dal Chand, who was since expired. Kailash Chand was only surviving legal heir of Dal Chand and therefore can continue his parental business. In cross-examination, tenant-Mohan Lal Maheshwari has stated that Kailash Chand was the sole male member of the family of Dal Chand, who expired in 1995 and the shop in Vijay Market, Ghantaghar, Kota was being run by Kailash Chand but this was correct that the eviction decree passed against Kailash Chand, who had to vacate the shop at Vijay Market Ghantaghar, Kota. In further cross-examination, he stated that Kailash Chand had handed over the shop after vacating the same from Vijay Market Ghantaghar, Kota to his landlord. In further cross-examination, he stated that Kailash Chand had handed over the shop after vacating the same from Vijay Market Ghantaghar, Kota to his landlord. That three shops were on rent, one of these three shops was let out to Smt.Divya Panjwani in the year 1999 i.e. much before filing of the eviction petition in 2007. Regarding second shop, one petition for eviction was filed by Kailash Chand and his mother against Jaffar Mohd. The eviction petition filed against Jaffar Mohd. was rejected by the Rent Tribunal and appeal filed there-against by the landlord is said to be pending before the Appellate Rent Tribunal. The Appellate Rent Tribunal has reversed the finding of bona fide necessity. Furthermore, Shailesh Chittora (AW2) also in his cross-examination has stated that after death of Dalchand, Kasilash Chand was proprietor of the shop in Vijay Market Ghantaghar, Kota but eviction was ordered by the Court and there-against, writ petition was filed in the High Court. 10. The learned Appellate Rent Tribunal reversed the finding on the issue of bona fide necessity on the premise that this fact was concealed by the landlord in the eviction petition. In the first place, eviction petition was filed before eviction decree passed by the Court against Kailash Chand and his mother by their landlord, which is evident from certified copy of the judgment of this Court dated 19/08/2008 filed by the landlord in the present case after judgment of the Rent Tribunal dated 09/02/ 2009. The other reason assigned for reversing the finding on bona fide necessity by the Appellate Rent Tribunal is that if the landlord Kailach Chand wanted to start business, he should not have let out the shop to Smt.Divya Panjwani. But this again is a perverse reasoning as that shop was let out to Smt.Divya Panjwani in the year 1999, whereas eviction petition in the present case was filed in 2007. In fact, eviction petition against landlord in the present case in relation to the shop at Vijay Market Ghantaghar, Kota was filed by landlord Shyam Sunder Lohiya against Ghisi Bai and Kailash Chand Chittora, landlord in the present case in the year 2003, being Application No.R.213/2003, which is evident from the certified copy of the order dated 06/02/ 2007 passed by the Rent Tribunal. The learned Appellate Rent Tribunal was therefore not justified in reversing the finding of bona fide necessity recorded by the Rent Tribunal in favour of the landlord because the tenant in the present case was not taken by surprise by any of the above facts and also because he himself admitted these facts in his cross-examination. 11. The Supreme Court in Dinesh Kumar ( AIR 2010 SC 2679 ) supra held that landlord is the best judge of his need, however, it should be real, genuine and the need may not be a pretext to evict the tenant only for increasing the rent. The High Court reached the conclusion that the landlord, in spite of the fact that he was the owner of the suit premises could not be forced to continue his business in a shop of negligible area in a gumti made on a platform on a nalla. Mere continuation of long tenancy could not be a ground to reject the case of bona fide need. 12. The Supreme Court in Hari Rao, AIR 2005 SC 3389 & Dinesh Kumar (supra) held twice that when the lease was granted for trade, in absence of any covenant in the contract between the parties prohibiting a user different from the particular one mentioned in the lease deed, the tenant would be entitled to carry on any trade in the premises, consistent with the location and the nature thereof. Alteration in commodity traded in, expansion of trade or taking up other lines of trade would be permissible. However, change from commercial to residential use, or from trading to manufacturing or production of goods, would be a user other than one for which building was let out. In that case, aforesaid view was expressed by the Supreme Court in the context of Section 21 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 and Section 10(2)(ii)(b) of the Transfer of Property Act, 1882. 13. The learned Appellate Rent Tribunal has reversed the finding of the Rent Tribunal on Issue No.2 relating to change of user. It is to be noted that the landlord in his eviction petition has pleaded that the shop was let out for the purpose of running photo studio and the tenant without his permission, started the readymade garments business from such shop. It is to be noted that the landlord in his eviction petition has pleaded that the shop was let out for the purpose of running photo studio and the tenant without his permission, started the readymade garments business from such shop. The Rent Tribunal on this issue observed that the landlord has himself somewhat accepted that the tenant was earlier doing the business of photography from the shop and has now started trading in readymade gar- merits, but there is no evidence to the effect that the shop was let out only for the purpose of running photo studio. Earlier also, certain dispute was there between the parties but no such plea was set up before the Rent Tribunal that it was let out only for running photo studio. The Appellate Rent Tribunal has however observed that the original purpose for which shop was let out was photo studio, which has been closed down by the tenant and now he has started the readymade garments business from the said shop by putting furniture and fixing fixtures. Both are different businesses. That would amount to putting cart before the novice. The landlord has to first prove by cogent and reliable evidence that suit shop was let out only for running a photo studio and for no other purpose. He has failed to discharge that burden of proof. 14. In view however of reversal of finding of the Appellate Rent Tribunal on the issue of bona fide necessity the finding recorded by the Rent Tribunal in favour of the landlord stands restored. Consequently, eviction petition succeeds. 15. In the result, both the writ petitions are being disposed of with the following directions:- 1. That tenant shall hand-over vacant and peaceful possession of suit premises to landlord on or before 30/06/2015. Landlord shall not execute impugned decree till 30/06/2015. 2. That tenant shall pay or deposit entire arrears of rent till December, 2013 as per decree, if any, within a period of one month from today with the landlord. 3. That tenant shall not sub-let, assign or part with possession of suit premises or any part thereof in favour of any one else and would not create any third party interest in the same during the aforesaid period. 4. That tenant shall furnish a written undertaking incorporating aforesaid conditions before the Rent Tribunal within a period of four weeks from today. 5. 4. That tenant shall furnish a written undertaking incorporating aforesaid conditions before the Rent Tribunal within a period of four weeks from today. 5. That tenant shall regularly pay the mesne profit of Rs. 3,000/- per month by 7th of each succeeding month commencing from January, 2014 to the landlord and continue to pay the same to him till 30/06/2015 in the landlord's bank account. 6. That if otherwise tenant wish to avail the benefit of this order, he shall comply with the aforesaid conditions and in case he fails to comply with any of the aforesaid conditions, the Rent Tribunal shall ensure his eviction without requiring landlord to file separate execution petition even before aforesaid date. 7. That the landlord shall furnish their bank account number to the tenant. 16. Both writ petitions accordingly stand disposed of.Petition allowed. *******