1. Heard learned advocates for the parties and perused the papers on record.
2. The petitioner being aggrieved by the judgement and order dated 31.07.1992 passed by the Assistant Judge, Mehsana in Regular Civil Appeal No. 171 of 1991 has preferred this Revision Application under section 29(2) of the Bombay Rent Control Act.
3. The petitioner instituted a Civil Suit being Regular Civil Suit No. 62 of 1985 in the Court of Civil Judge, (J.D.), Patan against the respondent for possession of the suit property on the ground that the suit property was not being used by the respondent for the purpose of carrying on business and that the suit property was not being used by the respondent without any reasonable cause for a period of more than six months immediately preceding the date of filing of the suit. The suit was decreed in favour of the plaintiff on 23.10.1991. Being aggrieved by the said decree, the respondent preferred an appeal being Regular Civil Appeal No. 171 of 1991 in the Court of District Judge, Mehsana. The appellate court set aside the judgement and decree passed by the trial court. Being aggrieved by the said action, the present revision is preferred.
4. Mr.
Viral Dave, learned advocate appearing for Mr. D.C. Dave for the petitioner submitted that the appellate court committed an error in reversing the well reasoned order passed by the trial court after considering the documentary as well as oral evidence in detail. He submitted that the trial court after considering the electricity bill and the panchnama prepared by the court commissioner came to the conclusion that the factum of non-user of the suit property by the respondent for a period exceeding six months immediately preceding the date of filing of the suit is proved beyond doubt.
4.1 Mr.
Dave submitted that barring the electricity bill dated 27.03.1985 Ex. 54 the other electricity bills vide Ex. 35 to 53 carried an endorsement 'House Closed' which justifiably warrant the contention of the petitioner that the suit property has not been used by the respondent for a considerable period of time.
4.2 Mr.
Dave further submitted that the respondent did not precipitate an action for renewal of his licence in respect of the shop and the appellate court has not considered this very aspect. He submitted that this very well establishes the fact that the tenant was not carrying out any business from the said shop and therefore the licence was not renewed.
4.3 In support of his submissions, Mr. Dave has relied upon the following decisions:
In the case of Purshottamdas Kuberdas Soni vs. Gulabchand Ramjibhai Shah (since Decd. Through his heirs & LRs. Himatlal G. Shah reported in 1993(1) GLR 773 it is held that non-user of the premises results into decree of eviction and that the tenant must show that there was intention to return on his part coupled with formal, outward and visible sign of it.
In the case of Joginder Nath Sood vs. Jagat Ram Sood reported in AIR 1990 Himachal Pradesh 79 it is held that non consumption of electricity could be a proof that the tenant was not living in the premises.
In the case of Khemchand Kalidas Mehta vs. Kothari Gubharuchand Motilal reported in 1996(1) GLH 413 it is held that once the landlord establishes non-user the tenant has to show that non-user was for a reasonable cause.
5. Mr.
Suthar, learned advocate appearing for Mr. N.K. Majmudar for the respondent supported the order of the appellate court and submitted that the trial court brushed aside the court commissioner's report and instead proceeded on the assumption gathered on the basis of the electricity bills and the endorsement made thereon. He submitted that the appellate court has given a finding on the said issues which is in consonance with law and therefore the order is just and proper.
6. Considering the overall facts and circumstances of the case coupled with the evidence placed on record, this court is of the view that it is apparent that the petitioner landlord has failed to prove that there is non-user of the shop for a continuous period of more than six months preceding the date of filing of the suit. The trial court has committed an error in brushing aside the court commissioner's report wherein it is mentioned that the tenant was in the shop when the court commissioner went there. The appellate court has considered the issues of non-user of shop, amount of electricity consumption and non renewal of licence and came to the conclusion that the trial court has not considered the facts of the case in its proper perspective. The business carried on by the petitioner was on a small scale and there was no need for large consumption of electricity or maintaining books of accounts. The appellate court also observed that the shop was neat and clean when the court commissioner went there. The tenant himself admitted that he was irregular in opening the shop or running the business but that the irregularity did not continue for a period more than six months. This could be revealed from the electricity consumption which is considerably less and not nil.
7. Non renewal of licence shall not necessarily mean that the tenant was not carrying out his business activities from the suit premises. At the most it can be termed as breach of Bombay Shops and Establishments Act. It is also required to keep in mind that the electricity meter reader was not examined by the trial court. He would have drawn adequate light on the factual aspect. In absence of the same, this court is of the opinion that the appellate court was justified in reversing the order of the trial court.
8. For the foregoing reasons, revision application is dismissed. Rule is discharged. Interim relief if any stands vacated. Civil Application also stands disposed of accordingly.
(K.S.
JHAVERI, J.) Divya// Top