Andhra HC (Pre-Telangana)
Smt. K. Rachamma vs Smt. Bimal Bai And Anr. on 19 March, 1996
Equivalent citations: 1996(2)ALT111
Author: Avinash Somakant Bhate
Bench: Avinash Somakant Bhate
ORDER Avinash Somakant Bhate, J.
1. This Revision challenges the order passed in R.A.No. 180/90 which was decided by the Chief Judge, City Civil Court, Hyderabad on 20-9-1994.
2. Petitioner herein is the landlady and had filed the eviction petition against the respondents tenant. They shall be referred hereafter as 'petitioner' and "respondent' respectively. The petitioner initiated the eviction proceedings under the provisions of A,P. Building (Lease, Rent & Eviction) Control Act by R.C.1436/86 before the IV Additional Rent Controller, Hyderabad. By the said eviction petition, eviction was sought on three grounds permitted under the Act. They were (1) Wilful default in the matter of payment of rent of the demised premises for the period between March 1981 to 31st March 1986; (2) Bona fide and reasonable requirement of the demised premises for starting a business by the son of the petitioner and (3) Change of user of the demised premises from the one for which the premises were let out. The petition was resisted by the respondent on all the grounds. It was contended by the respondent in his counter that though the petitioner's contention that the rent deed was signed by respondent was correct, the said rent deed was got executed under coercion or pressure of immediate eviction through the Court bailiff in an earlier obtained order of eviction. It was also urged that during the course of execution of the earlier order all the property in the premises was kept outside on the road and the respondent was at the mercy of the petitioner and therefore was pressurised to sign the document. It was under such state of affairs that he signed the rent deed and agreed to pay the higher rent as per the claim of the petitioner. He further says that he has pa id the rent regularly as was agreed and there is no default of payment of rent. As far as bona fide requirement is concerned it was contended that the requirement was not bona fide and the petitioner was having other mulgies in her possession. Some of the mulgies were lying vacant or were relet. This showed that there was no requirement as such of her son. As far as the change of user of the premises from the purpose for which they were let out to some other purpose was concerned it is the stand of the respondent that though under the rent deed the premises were to be used for the purpose of general merchandise and grocery the use to which the respondent was putting the premises was of similar nature i.e., sale of articles because he was doing business of textile sale and therefore there was no change of user as such. Thus the petition was opposed on all the grounds.
3. The learned Rent Controller on assessment of the evidence adduced before him came to the conclusion that the rent deed Ex.P-1 was not executed by the tenant under coercion or under threat as was pleaded by him. He also found that the respondent was not a defaulter in the matter of payment of rent. This point will be elaborated later on at the time of discussion of arguments on the said point. Similarly, the Rent Controller found that there was no change of user of the building which enables the landlord to claim possession of the demand premises. As far as personal requirement was concerned the Rent Controller found that the requirement of the petitioner was not bona fide. Thus holding, the petition was dismissed. An appeal was preferred against the said order by R.A.No. 180/90. The appellate Court dismissed the appeal by holding that there was no default committed by the respondent-tenant in the matter of payment of rent and there was neither any substantial change of the user of the demised premises nor was the requirement of the petitioner bona fide for establishing the business of her son. Thus the appeal also came to be dismissed.
4. Certain facts are now beyond dispute. Particularly this being a Revision, it is not open to canvass any questions of act which have been found by the Courts below unless they are perverse or so grossly erroneous as to all for interference. It is now established that the petitioner was a tenant in the suit premises and also in the rear part of the said premises and that an order was obtained for this eviction in Civil Suit O.S.No. 2801/78 before the V Assistant Judge, Hyderabad. In execution of the said decree the respondent was evicted from the premises in his possession of the tenant at that time was Rs. 200/- per month and he was also liable to pay Rs. 25 /- towards property tax. This amount was payable per month. In the course of eviction the respondent was on the road for 2 or 3 days and later on due to intervention of certain local persons the respondent was reinducted in part of the premises and a deed of rent was executed vide Ex.P-1 on 1-9-1981. While reinducting, the petitioner accepted both the respondents as his tenant though earlier it was only respondent No. 2 who was the tenant. The rent fixed was Rs. 400/- per month as embodied in Ex.P-1 and the respondents were further liable to pay Rs. 50/- per month towards property tax. The respondent gave up the possession of certain portion of the premises leased to respondent No. 2 earlier, which was the residential part. Thus, the respondents became tenant only in respect of business portion of the property and gave up the residential portion of the earlier leased property. Thereafter, the respondent continued to pay Rs. 400/- per month regularly and, Rs. 25/- per month representing the property tax. However, it is contended that the respondent failed to pay Rs. 25/- per month in addition, which was the amount fixed under the agreement Ex.P-1 towards further property tax and also after expiry of 11 months from the date of execution of Ex.P-1 the respondent did not pay the enhanced rent at 10% as was stipulated in Ex.P-1. That is how the default was committed by the respondent in the matter of payment of rent and the said default was wilful default. As far as bona fide requirement is concerned it is argued by the learned Advocate for the petitioner that the son of the petitioner was desirous of starting his own business and therefore the premises let out to the respondent were bona fide required by the petitioner-landlady for that business and for that absolutely no evidence was forthcoming to show that the requirement was mala fide. As pointed out already there is no dispute that in Ex.P-1 a stipulation was incorporated, vide condition No. 4 as follows: "That the rented mulgi should be used by the lessees for the purpose of carrying or Kirana and general stores". In spite of this stipulation the respondent is carrying on business of sale of textile articles in the said mulgi and therefore it contravenes Section 10 (2) (iii) of the A.P. Rent Act. The learned Advocate for the respondent has supported the finding recorded by the courts below on all the three grounds.
5. Let us examine each ground in detail Taking up the ground of wilful default first, it appears that the deed Ex.P-1 was not considered by the appellate Court at all on the ground that it was an unregistered document and therefore was held inadmissible in evidence. Court refused to look into it in view of this in admissibility. In my view the approach of the appellate Court was erroneous. The lease deed shows that it was executed on 1-9-1981 and was for a period of 11 months. As it was for a period of 11 months there was no necessity for its registration. It was valid for 11 months period. Until and unless the said agreement was yearly lease, or for year to year or for a period of more than one year, there was no necessity to register the said document under the Indian Registration Act. It is obvious that the said document cannot be construed as a lease extending beyond the period of one year. It is from this point of view that the rejection of the died altogether by the appellate Court was erroneous. At the same time, the contention of the learned Advocate for the petitioner that the rent as per this agreement was to be increased after expiry of one year from Rs. 400/- to Rs. 440/- per month and as per the terms of the agreement the rent was further to be increased by 10% every year by giving option to the lessee to renew the lease after expiry of 11 months also cannot be accepted. If that term is to be implemented under the deed it would obviously mean that the petitioner is treating this deed as a lease deed for a period exceeding one year. The correct interpretation of the deed would be that after expiry of 11 months it gave an option to the tenant to renew the deed but at the time of renewal, if any renewal was done the tenant would make payment on the enhanced rent. Therefore, unless there was a renewal of lease the tenant as not bound to pay the enhanced rent. If there was renewal it would be according to the terms and conditions in the renewed lease deed itself. What had happened in the instant case was as there was no renewal, either oral or written after expiry of 11 months, the tenant continued to remain in possession of the property under the rent deed Ex.P-1 as a tenant holding over and therefore on the same terms and conditions as were applicable to the lease of first 11 months as stipulated in Ex.P-1. It was unjustified on the part of the petitioner to contend on the strength of Ex.P-1 itself that the rent stood automatically increased from 1-8-1982. It did not stand increased automatically as has been pointed out already, in the absence of any renewal of a fresh lease. Therefore, the rent payable even after expiry of 11 months by the tenant was Rs. 400/-per month only. It is further admitted fact now that the tenant continued to be in possession till filing of the present eviction petition and no fresh lease or rent deed was executed any time after expiry of 11 months from the date of execution of Ex.P-1. The tenant was therefore bound to pay only Rs. 400/- per month by way of rent. There is no dispute now that the tenant has paid the amount of rent at the rate of Rs. 400/- per month regularly and there is no default, much less wilful default, in the matter of payment of rent till the date of filing of the eviction petition.
6. What is now argued however is that under Ex.P-1, it was stipulated that the respondent would pay property tax at the rate of Rs. 50/- per month apart from the rent fixed, which was Rs. 400/- per month. Rs. 50/- represented increase in payment towards property tax, by an amount of Rs. 25/- from the previous agreement of lease. However, the previous agreement of lease came to an end by the decree of eviction in O.S.No. 2801/78. The respondents-tenants however continued to pay Rs. 25/- only towards property tax though this stipulation of increase in property tax was agreed taking into consideration the then existing annual tax payable to the Corporation at the time of execution of Ex.P-1. The true question for determination in this respect would be whether the payment of Rs. 50/- said to be on account of property tax was part and parcel of the rent and whether it constituted the rent as such. In may view the payment of Rs. 50/- did not represent part of the rent. The very fact that Rs. 50/- per month was to be paid by the respondent as an ad hoc sum towards property tax without reference to the actual amount of property tax payable to the Municipal Corporation was indicative of the fact that the said sum was not fixed with reference to the actual tax payable by the landlady. It is true that in the rent deed there is a statement that the amount of Rs. 50/- per month was agreed on taking into consideration the existing annual tax payable to the Corporation . However, there is absolutely no reference anywhere as to what was the actual amount of property tax payable. The primary duty of payment of property tax was of the landlord. If the landlord wanted to fix the rent as such inclusive of the tax i.e., if he wanted to pass over the burden of tax, the amount of rent could have been fixed accordingly. However, in the present case, the landlord has not kept the thing in unambiguous state of affairs. In the rent note itself, it has been stated that the lease shall pay rent Rs. 400/- per month and shall pay Rs. 50/-towards property tax of the mulgi. Therefore, the rent and the property tax items were made separate from each other and the so called amount of property tax was not made part of the rent. Further more, as pointed out by me already, though the amount of Rs. 50/- per month was stated to be property tax, it was not with reference to the actual tax demanded by the Municipal Corporation or with reference to actual tax paid by the landlord. Therefore the said amount of Rs. 50/- was really not towards property tax but a premium amount or amount for certain purposes other than the rent. The learned Advocate on behalf of the petitioner has relied on certain decisions for contending that the amount of tax is a party and parcel of the rent and non-payment of such tax, if agreed to be paid by the tenant would amount to non-payment of rent. I shall consider these cases one by one.
7. I shall first take up the two decisions of this Court which are relied on by the learned Advocate for the Petitioner. In Heerachand Poonamchand (HUF). represented by Kartha v. Kanchan cycle trading Co, Partnership Firm, 1990 (1) ALT 2 (NRC) it was held that rent includes amount agreed to be paid by the tenant towards amenities supplied. In that case, it appears that under the agreement the tenant was to pay Rs. 900/- and also further sum of Rs. 300/- as charges for amenities supplied to the tenant. It was on basis of those facts that the Court held that the intention was that total amount of Rs. 1200/- per month was payable for letting out the said premises to the tenant. The question before the Court in deciding the said case was whether the Rent Controller had jurisdiction or not to decide the eviction petition. Under G.O.Ms.No. 636 dt 29-12-1983 where the rent of premises exceeded Rs. 1,000/- per month, the Rent Controller is excluded from exercising his jurisdiction. It was in those circumstances that this Court held that the amount payable towards amenities provided to the tenant form part of the rent. I do not think that the said facts have any application to the facts of the present case because here the question of charging for amenities is not at all present. The second case relied on is Smt. Kanta Bai Asawa and Ors. v. Khanti Swaroop Machine Tools Pvt. Ltd. and Anr., . The facts of the said case were distinctly different and may be stated for the purpose of understanding the conclusion and the observations made in that case. In the suit filed by the landlord for eviction of the tenant on the ground of wilful default, it was held that the tenant had not paid the amount of tax which he was liable to pay under the agreement between the parties. The tenants disputed their liability to pay the tax arrears as claimed by the landlord. What was contended was that there was no actual command of taxes by the municipal authorities and unless there was a demand from the municipal authorities there was no liability for payment of the same by the tenant. If there was no demand there was no question of default. The landlord had filed a suit for recovery of the tax arrears and the rent from the tenant by O.S.No. 140/84. The suit was decreed only for arrears of rent on 17-4-1986 and the tenants had disputed the liability to pay the tax arrears as claimed by the landlords. It was not the case of the tenants that they would not pay the amount. They contended that as there was no demand there was no question of payment of the said amount. Later on in the eviction petition the same plea was raised. It was under those circumstances that the Court held that it cannot be said that the tenants have not committed wilful default in payment of municipal taxes because that the landlord had actually paid the taxes and therefore the tenant was bound to pay the same. It was in this background that the Court held that the arrears of taxes and non-payment of the same which the tenant was bound to pay under the agreement formed part of rent and the landlord was entitled to evict the tenant on that ground. Apart from the act that there is no precise discussion of the contention as to whether the liability to pay any amount which has no reference to actual quantum of tax can be said to be part of the rent or not, it appears that the facts of the said case were peculiar and have no application to the proposition which is sought to be raised by the learned Advocate for the petitioner here.
8. The next case relied on by the learned Advocate was Someshwar Dayal Seth v. Shri Dwarakadhish JI Maharaj, . In that case it appears that under the original agreement between the landlord and the tenant the exact amount of tax which, was being demanded by the municipality was agreed to be paid by the tenant and therefore it was held by the Court that the amount of tax was part and parcel of the rent as it was as per the demand of the municipality. The Court held that payment of municipal taxes was, therefore, not in the nature of payment of any premium or any other additional amount. It was in the said facts and circumstances that the Court held that it was not premium or other additional amount other than rent because the exact amount of tax which was demanded by the municipality was, under the agreement to be paid by the tenant. As pointed out earlier, in the present case, it is not the exact demand from the municipality or the appropriate authority which is to be paid by the tenant but an ad hoc amount of Rs. 50/- was required to be paid by the tenant on account of tax. Therefore, it is difficult to say as to how such payment could form part of the rent. It was either It, premium or other amount to be paid apart from the rent.
9. The next decision relied was Messrs Raval & Company v. K.G. Ramachandran (Minor) and Ors., 1968 (II) MLJ 50. In this case also the tenant was obliged to pay the precise amount of tax which was demanded by the municipality under the agreement between the parties. The Court held that in such circumstances the amount of such taxes was necessarily part of the rent and therefore was consideration for right of enjoyment of the premises. However, it is to be remembered that it was the amount towards taxes payable by the tenant or, the precise amount which was demanded by the municipality. In Rupeswari Debi v. Messers Lokenath Hosiery Mills, same was the factual position where the tenant was required to pay the precise amount of taxes as and when demanded by the municipal authorities. It was in this background that the Court held that payment was to be regarded as payment of rent to the landlord. The learned Advocate then brought to my notice Hajee Mohamed Hajee Moosa Sait v. The Globe Theatres Ltd., AIR 1956 Madras 216. This case does not precisely cover the point in question. However, some observations in the said case are in fact not helpful to the petitioner. The Court observed.
"The Rent Control Act does not abrogate all the covenants between the parties except in regard to the rent and the grounds on which a tenant could be evicted".
The Court also observed:
"The House Rent Control Act has no application to a case where there is a specific covenant in favour of the landlord to recover the property tax from the tenant".
Therefore, it made a distinction between the rent and other payments which is to be made towards taxes.
10. The last judgment relied on by the learned Advocate for the petitioner was Navnitprasad Champak Prasad and Ors. v. Commissioner, Ahmedabad Municipal Corporation, Ahmedabad, . The question before the Court in relation to the provisions of Bombay Provincial Municipal corporation Act, was as to whether the payment of municipal taxes would be payment of rent. The Court observed.
"The payment of municipal taxes may well be in the nature of rent, though not the rent, Strictly so called".
It will thus appear that this judgment is really against the petitioner. It clearly says that the amount of municipal tax may be in the nature of rent but strictly not rent so called. Therefore, considering all the authorities so relied by the learned Advocate for the petitioner, I find that none of them really is applicable to the facts and circumstances of the present case.
11. I have already pointed out that the rent deed itself makes a clear distinction between the rent and the other a mount of Rs. 50/- which is to be paid towards property tax. The learned Advocate for the respondent further points out that whenever the respondent-tenant made payment of Rs. 400 /- as rent and Rs. 25/- on account of property tax as before, the petitioner was issuing proper receipts to him through out the period in question. In the said receipts there was a specific column showing the amount of rent and also another column showing the amount of rent due. On account of amount of rent the petitioner has everywhere written amount of Rs. 400/- and then stated further an amount of Rs. 25/-on account of property tax. What is more important is that in the amount of rent due, the petitioner has every where scored out the said column by putting a line across by his own pen. This clearly shows that even the petitioner on every occasion had no doubt whatsoever in his mind that inspite of payment of only Rs. 25/- towards the so called property tax the tenant was not paying any short amount towards rent as such. Several receipts have been issued and there is no dispute about the issuance of those receipts. This would clinch the matter without any doubt. It appears that later on the petitioner has built up the theory that Rs. 50/- was also towards rent. As pointed out by the appellate Court, the amount of Rs. 50/- per month was not part and parcel of the rent and if it was not rent, non-payment of it cannot become default and the recovery of the said amount has to be made by a separate and appropriate proceedings. The landlady cannot use the eviction proceeding as a means for recovery of the said amount which is either premium or other amount apart from rent.
12. The next point for consideration was bona fide and reasonable requirement of the landlady of the premises for use of her son. I do not think that much discussion will be required on this ground. There is sufficient evidence to show that the landlady does not have any bona fides in claiming the mulgi let out to the respondent. It has come in the evidence of the landlady herself that she had received vacant possession of the premises let out to one of the tenants i.e., Padma Light House but the said premises were relet to the same tenant on increase of rent amount. Further more after such reletting one other mulgi was vacated by the 3rd tenant and the said mulgi is still lying vacant and is in possession of the landlady. The reasoning given by the landlady that the said vacant mulgi is kept as it is and is reserved for starting some business by her husband, shows the total absence of bona fides. In fact when a landlord is in possession of a building which can be used for business purpose, the landlord is debarred from claiming possession of another building on the ground of bona fide requirement. This is the effect of Section 10 (3) (b) (sic. 10 (3) (a) (iii) (b)) of the A.P. Buildings (Lease, Rent & Eviction) Control Act. The contention of the landlady that the vacant mulgi is kept reserved, shows that it is in possession of the landlady and yet the landlady is asking for possession of other premises for business. This cannot be countenanced under the provisions of the Rent Act. This is apart from the fact that it reflects on the absence of bona fides. If really the requirement was bona fide the landlady would have started immediate use of the said mulgi for one purpose or the other and would not have allowed the premises to lie vacant. It is not necessary to discuss this aspect any further. There is absolutely no merit in the contention that the requirement is bona fide. For this purpose, the decision of a Full Bench of this Court in Smt. Vidya Bai and Anr. v. Shankerlal and Anr., (F.B) would be the complete answer. The Court held that when the family is in possession of vacant premises to allow such a plea is destructive of the very character of conception of the joint family as such and would deviate from the object and purpose of the legislation to protect the tenant from being evicted from the premises arbitrarily.
13. Turning to the last ground on which eviction is sought, there is no dispute whatsoever that under the rent deed the purpose of letting was stated in Clause (4) as follows:-
"that the rented mulgi should be used by the lessees for the purpose of carrying on Kirana & General Stores".
There is also no dispute that after the respondent took possession of the demised premises soon thereafter instead of the original business of Kirana and General Stores, the tenant has started using the premises for the purpose of carrying on business as a cloth merchant under the name and style "Santhala Textiles, Suitings, Shirtings, Sarees, Dress Materials and Cutpiece Centre". The contention raised by the learned Advocate for the petitioner is that this amounts to utilising the premises for the purpose for which they were not let out and therefore Under Section 10 (2) of the Rent Act, the tenant is liable to be evicted. In answer the learned Advocate for the respondent contends that though the respondent has started using the premises for textile business, in a broad sense the use of the building is still for the purpose for which it was leased out and has not changed. The purpose has to be found out, according to the learned Advocate for the respondent, from the nature of the use to which the building was originally let out. It is urged that the building was leased out for the purpose of business as such and if one type of commercial activity is changed to some other type, it does not amount to the purpose having been shifted. It support of such proposition he brings to my notice the decision in Mohan Lal v. Jaibhagwan, . The Supreme Court was dealing with the provisions of Haryana Urban (Control of Rent & Eviction) Act. However the provision in question was similar to Section 10 (2) (b) of the A.P.Buildings (Lease, Rent and Eviction) Control Act. In the said case the tenant was carrying on business of liquor vending in the let out premises. As the liquor licence was not renewed the tenant had to discontinue the business and had to start the business of general merchandise in the same premises. The landlord contended that the purpose of the user was changed and hence the tenant was liable to be evicted. According to the tenant the purpose still remained commercial and there was no clause prohibiting the appellant, to change to any other business, in the rent note executed by the parties in respect of the demised premises. The Supreme Court dealing with the point in question had observed:
"In the background of the purpose of rent legislation and in as much as in the instant case the change of user would not cause any mischief or detriment or impairment of the shop in question and in one sence could be called an allied business in the expanding concept of departmental stores, in our opinion, in this case, there was no change of user which attracts the mischief of Section 13 (2) (ii) (b) of the Act."
It was on this reasoning that the Supreme Court held in that case that there was no change of the user of the premises for the purpose for which the premises were let-out. One significant aspect which must be remembered in respect of this case is that in the rent note, there was no clause which required the tenant to use the premises for a particular business as such, nor was there any clause prohibiting the tenant to change the nature of business in the said shop. Therefore, the purpose for which the premises were let out was for carrying on business and it was probably in that background that the Court held that the purpose of the use for which the premises were let out was not changed by the tenant and the concept of mischief or detriment or impairment of the shop was discussed from that angle.
14. The next case relied on by the learned Advocate for the respondent was Rattanlal v. Asha Rani, 1988 (2) APLJ 48 (SC). This is also a case decided by the Supreme Court. In this case, there is hardly any discussion or laying down of any principles as to what constitutes change in the user of the premises. The judgment is a short one and their lordships said that they found no justification for giving a direction of eviction on the ground of change of user. The initial purpose of the let out premises was to run a grocery shop and the tenant started using the same for running a books shop. That was not a valid ground for ordering eviction. The Court went on to direct that the tenant should pay the enhanced rent and disposed of the matter accordingly without any discussion as to whether the act of tenant in changing over the nature of business entailed into consequence of eviction. On the other hand the learned Advocate for the petitioner/landlord has relied on Dashrath Baburao Sangale and Ors. v. Kashimath Bhaskar Data, 1994 Supplement (1) SCC 504. In that case the landlord leased out the premises to the tenant on execution of a rent note. Under the rent note the tenant had agreed that the premises would be used for sugarcane crushing with the help of an ox and a temporary shed of tin at the cost of the tenant would be constructed for that purpose. Later on, the landlord instituted proceedings for eviction on the ground that the tenant started using the premises for purposes of selling cloth and readymade clothes and therefore was liable to be evicted. The Courts below accepted the landlord's case and directed eviction. The Writ Petition against the concurrent findings of facts of the Courts below, was also dismissed by the High Court and when the matter readied Supreme Court, their lordships observed that in the face of clear stipulation in the lease deed the Courts below as well as the High Court refused to countenance the plea of the tenant, holding he had be a using the premises for doing business and was entitled to do such business as he chose in the demised premises. Thus, the Supreme Court clearly held that if there was a stipulation in the rent note itself that the premises would be put to use for a particular purpose, it would not for the tenant to change the user and start using them for same other purpose. The learned Advocate on behalf of the respondent has however contended that the reasoning given in Mohanlal's case by the Supreme Court (9 Supra) that if the change of user does not cause mischief or detriment or impairment of the premises, then, in a sense there is no change of user if the premises are used for business purpose even after the change of user has not been considered in this case. I am afraid that the contention tends to suggest that I should ignore the specific principles laid down in Dasarath's case in 1994 decision of the Supreme Court (11 Supra). It is then contended that when there are two decisions of Supreme Court of Benches of equal strength then the Judges deciding case on the second occasion being bound by the decision of the earlier Bench, the decision rendered subsequently should be treated as per incuriam and should not be taken as good law. For this proposition, the learned advocate for the respondent places reliance on Union of India and Anr. v. Raghubir Singh (Dead) by LRs. etc. And Paithpal Singh and Ors. v. Union of India And Ram Mehra Raj Kumar and Ors. v. Union of India and Ors. And Delhi Cattle Breeding Farms Pvt. Ltd. etc. v. Union of India, . That was a case decided by a Bench comprising of five Judges of the Supreme Court and was a constitutional bench. The Court had held that decisions given by a Division Bench binds a Division Bench of same or smaller number of Judges if same point comes for consideration later on. Even if that be so, I am afraid that if in fact a decision is given and a principle is evolved in a subsequent case by the same Court consisting of a Bench of equal strength and if the said decision is particularly of Supreme Court, it would not be permissible for this Court to ignore the subsequent decision. I think I would be bound by the later decision if the strength of Judges presiding over on the two Benches is same and if apparently conflict exists in the two. Apart from this, I think that in the present situation really such conflict is not in existence because in the Mohanlal's case (9 supra) the facts as stated show that in the rent note there was no clause which required the tenant to use the premises for any specific purpose as such. In the Dasarath's case (11 Supra) there was a clause in the rent note just in a similar manner in which the clause existed in the present case. It was in the said situation that the Dasarath's case (11 Supra) laid down the principle that if there was a clause in the rent note, which pinned down the tenant to use the premises for a particular a purpose, then he was not entitled to change the purpose even if it be allied or commercial activity. I am therefore of the view that in view of Dasarath's case, (11 supra) the contention of the learned Advocate for the respondent that there was no change of user cannot be accepted. There was a definite change of user from general merchandise and Kirana to textile business. That being so, the tenant respondent was bound to obtain a written consent for such a change. The argument made in the Courts below that the conduct of the petitioner in not taking objection for so many years estopped him from taking the objection cannot be accepted. In fact this argument was not advanced before me. The law requires that for change of user the tenant has to obtain written consent of the landlord. Oral consent or conduct or allowing the tenant to change the user does not come to the help of the tenant. Admittedly in the present case there was no written consent obtained by the tenant for changing the use. If the circumstances the tenant was liable to be evicted Under Section 10 (2) (ii) (b) of the A.P. Buildings (Lease, Rent & Eviction) Control Act. The respondent is therefore liable to be evicted, and the Revision will have to be allowed to that extent. The learned Advocate for the respondent seeks some time for vacating the premises. Time is granted till the end of June 1996 for vacating the premises.
15. With the above directions the Revision is allowed. However, there shall be no order as to costs in the circumstances of the case.