Date : 24/04/2012 1.00. Present Civil Revision Application under section 29(2) of the Bombay Rents, Hotel and Lodging House Rents Control Act, 1947 (hereinafter referred to as “the Bombay Rent Act” for short) has been preferred by the petitioner herein – original defendant to quash and set aside the impugned judgement and decree passed by the learned Small Causes Court at Ahmedabad in HRP Suit No.2340 of 1988 dtd.6/8/1997, by which the learned appellate court had decreed the said suit for recovery of possession in favour of the original plaintiff – landlord under section 13(1)(k) of the Bombay Rent Act, on the ground of non-user of the premises. That the learned trial court has also decreed the suit for arrears of rent directing the petitioner - original defendant to pay respondents.34,800/- towards arrears of rent for the period from 15/3/1976 to 14/8/1988. The petitioner - original defendant has also challenged the impugned judgement and order passed by the Appellate Bench of the Small Causes Court at Ahmedabad in Civil Appeal No.119 of 1997 dtd.30/11/2006, by which the learned appellate court has dismissed the said appeal preferred by the petitioner – original defendant confirming the judgement and decree passed by the learned trial court. 2.00. That the original plaintiff – landlord – father of the respondents herein had instituted HRP Suit No.2340 of 1988 before the Small Causes Court at Ahmedabad against the petitioner herein – original defendant for recovery of possession under section 13(1)(k) of the Bombay Rent Act, on the ground of non-user of the suit premises for more than six months preceding the institution of the suit and on the ground of personal and bonafide requirement of the original plaintiff for his son. The aforesaid suit was also filed on the ground of arrears, for recovery of arrears which was due and payable since March, 1976. It was the case on behalf of the plaintiff that the defendant is not using the industrial shed – suit shed in question since few years and is also not doing any work or business in the premises or not making any production in the said shed. It was also the case on behalf of the plaintiff that the defendant has closed his business and is not doing his business in the suit premises and therefore, sought eviction decree on the ground of non-user of the suit premises for more than 6 months preceding filing of the suit without anyr reasonable cause.
2.01. It was also the case on behalf of the plaintiff that he requires the suit premises reasonably and bonafide for doing business in it by his son. It was also the case on behalf of the plaintiff that a sum of Rs.43,804.79 Ps. was due and payable towards the arrears of rent. That the defendant resisted the said suit by filing Written Statement at Ex.14 and denied the arrears of rent as well as bonafide and personal requirements of landlord for his son as well as non-user of the suit premises.
2.02. That the learned trial court framed Issues at Ex.23 and held the Issue Nos.2,3,6 and 7 in affirmative and held on appreciation of evidence that the defendant has not used the said premises for more than six months preceding filing of the suit and has stopped his business / manufacture in the said shed and has shifted to another premises and consequently passed eviction decree under section 13(1)(k) of the Bombay Rent Act. That the learned trial court held the issue with respect to personal and baonafide requirement of the landlord for his son in negative and consequently the learned trial court by the judgement and decree dtd.6/8/1987 decreed the suit and passed eviction decree for non-user of the suit premises under section 13(1)(k) of the Bombay Rent Act.
The learned trial court also held that the plaintiff to recover Rs.34,800 for the period from 15/3/1976 to 14/7/1988 as arrears of rent plus charges as claimed.
2.03. Being aggrieved by and dissatisfied with the judgement and decree passed by the learned trial court – learned Small Causes Court at Ahmedabad in HRP Suit No.2340 of 1988 dtd.6/8/1997, original defendant - tenant preferred Civil Appeal No.119 of 1997 before the learned Appellate Bench of the Small Causes Court at Ahmedabad and the learned appellate court by the impugned Judgement and Order has dismissed the said appeal confirming the judgement and decree passed by the learned trial court.
2.04. Being aggrieved by and dissatisfied with the Judgement and Order passed by both the courts below in passing eviction decree under section 13(1)(k) of the Bombay Rent Act, petitioner herein – original defendant – tenant has preferred present Civil Revision Application under section 29(2) of the Bombay Rent Act.
3.00. Mr.Manish Patel, learned advocate appearing on behalf of the petitioner – original defendant has vehemently submitted that both the courts below have materially erred in holding that the petitioner has not used the suit premises for more than 6 months preceding filing of the suit without reasonable cause. It is submitted that as such the suit premises in question was being used as godown and therefore, it cannot be said that there was no use of the suit premises. It is submitted that the learned trial court has materially erred in holding non-user on the ground that the electricity connection (3 Phase) has been disconnected. It is submitted that as such the defendant was using the said premises as a godown by using electricity connection (1 Phase) and therefore, it is submitted that the learned trial court has materially erred in passing decree under section 13(1)(k) of the Bombay Rent Act and the learned appellate court has materially erred in confirming the same. No other submissions have been made.
4.00. Heard Mr.Patel, learned advocate appearing on behalf of the petitioner – original defendant at length and considered and gone through the judgement and orders passed by both the courts below.
4.01. At the outset, it is required to be noted that here are concurrent finding of facts given by both the courts below giving finding on appreciation of evidence that the suit premises is not used for more than six months preceding filing of the suit without any reasonable cause and that the petitioner - defendant – tenant has stopped using the suit premises and stopped manufacturing in the suit shed and has shifted to another place.
4.02. At the outset it is required to be noted that learned advocate appearing on behalf of the petitioner – original defendant is not disputing that as such the petitioner has acquired another suitable accommodation and has shifted to another premises. However, it is the case on behalf of the petitioner that there after the suit premises was being used as godown and therefore, it cannot be said that there is non-user of the suit premises. However, it is to be noted that both the courts below have concurrently held that the defendant has not used the suit premises for more than six months preceding filing of the suit and said findings are on appreciation of evidence. It is required to be noted that even the electricity connection (3 Phase) has been disconnected. As such the petitioner defendant has miserably failed to prove that he was using the suit premises as godown after it shifted to another premises.
4.03. Non-user of the suit premises has been proved by the Report of the Court Commissioner, who was examined during the course of the recording of the evidence. Considering the aforesaid facts and circumstances of the case when non- user of the suit premises has been proved on appreciation of evidence and when the learned trial court has passed eviction decree, it cannot be said that the learned trial court has committed any error and/or illegality in passing the eviction decree and the learned appellate court has not committed any error and/or illegality in confirming the said judgement and decree passed by the learned trial court. Under the circumstances, interference of this Court in exercise of revisional jurisdiction is not called for.
5.00. In view of the above and for the reasons stated above, present Civil Revision Application fails and the same deserves to be dismissed and is accordingly dismissed. Rule is discharged. Interim relief granted earlier stands vacated forthwith. In the facts and circumstances of the case, there shall be no order as to costs.
rafik [M.R. SHAH, J.]