Premjibhai Chhaganlal Patel ­ Opponents

1.0 Present Civil Revision Application under Section 29(2) of the Bombay Rent Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as “the Rent Act”) has been preferred by the petitioner herein­original defendant (now through heir and legal representative of the petitioner­ original defendant to quash and set aside the impugned judgment and order passed by the learned Appellate Bench of the Small Cause Court, Ahmedabad passed in Civil Appeal No.191 of 1985 by which the learned Appellate Bench has allowed the said appeal preferred by the respondent herein­original plaintiff and has quashed and set aside judgment and decree passed by the learned Small Cause Court, Ahmedabad dismissing the suit refusing to pass the eviction decree and consequently passing eviction decree against the petitioner herein­original tenant under Section 13(1)(k) of the Bombay Rent Act i.e. on the ground of non user of the suit premises for more than six months prior to filing of the suit.

2.0 That respondent herein­original landlord instituted HRP Suit No.5565 of 1980 against the petitioner herein­original tenant for recovery of possession and / or seeking eviction decree on the ground of arrears of rent and non user of the suit premises by the tenant for more than six months preceding the filing of the suit. That the learned trial Court dismissed the suit and refused to pass eviction decree on both the ground i.e. arrears of rent and non user of the suit premises under Section 13(1)(k) of the Rent.

2.1. Being aggrieved and dissatisfied with the judgment and decree passed by the learned trial Court passed in aforesaid HRP Suit No.5565 of 1980 the respondent herein ­original plaintiff ­landlord preferred Civil Appeal No.191 of 1985 before the Appellate Bench of the Small Cause Court, Ahmedabad and on re­ appreciation of the entire evidence on record, the learned Appellate Bench of the Small Cause Court, Ahmedabad has allowed the said appeal and decreed the suit and passed the eviction decree under Section 13(1)(k) of the Rent Act i.e. on the ground of non user of the suit premises by the tenant for more than six months preceding to filing of the suit.

2.2. Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned Appellate Bench of the Small Cause Court in passing eviction decree against the petitioner herein under Section 13(1)(k) of the Rent Act, the petitioner herein ­original tenant has preferred present Civil Revision Application under Section 29(2) of the Bombay Rent Act. It is to be noted that during the pendency of the present Civil Revision Application the original tenant has expired and his son­his heir is brought on record and the present Civil Revision Application is being prosecuted by him.

3.0 Shri Sidharth Dave, learned advocate for Shri Ajay Mehta, learned advocate for the petitioner ­original tenant has vehemently submitted that the learned Appellate Court has materially erred in passing eviction decree under Section 13(1)(k) of the Rent Act by quashing and setting aside the judgment and decree passed by the learned trial Court dismissing the suit. It is submitted that as such there was no pleading and / or finding given by the learned Appellate Bench of the Small Cause Court that the suit premises in question was not used by the tenant for more than six months preceding to filing of the suit. It is submitted that unless and until it is pleaded and / or proved by the landlord that there was non user of the suit property by the tenant for more than six months preceding to filing suit and that too without reasonable cause, no eviction decree can be passed against the petitioner herein­original tenant under Section 13(1)(k) of the Bombay Rent Act. It is further submitted that the learned Appellate Bench of the Small Cause Court has materially erred in re­appreciating the evidence and considering the Court Commissioner report which was prepared after a period of four months of filing of the suit. It is submitted that the learned Appellate Court has materially erred in not believing the case of the tenant that the suit premises was being used by him for running the business of Photography by himself and thereafter by his son and also for doing xerox business. It is further submitted that even the electricity bills which are relied upon by the landlord was only for a period of four months from the preceding the filing of the suit. It is further submitted that even the learned Appellate Court has not properly appreciated and / or considered the evidence of one independent witness who deposed that the tenant used to open the suit premises. By making above submission, it is requested to allow the present Civil Revision Application.

4.0 Present Civil Revision Application is opposed by Shri Mehul Shah, learned advocate for the respondent ­original plaintiff. It is submitted that the learned Appellate Court has rightly appreciated and considered the evidence on record and has given the specific finding and reached the conclusion that the suit premises in question was not used by the tenant for more than six months. It is submitted that as such it was the specific case on behalf of the landlord that there is non user of the suit property since 1975. It is submitted that the learned Appellate Court has rightly considered the Commissioner's report by observing that the Court Commissioner's Report was never objected by the tenant by submitting the separate objection and / or even in the written submission. It is submitted that even the tenant has not led any evidence to prove that he was carrying on the business of Photography in the suit premises and that thereafter his son was doing the business of the Photography as well as xerox. It is submitted that it was the specific case on behalf of the landlord that there is non user of the suit premises by the tenant and the same was established by leading the evidence and even from the report of the Court Commissioner, in that case, in fact, it was for the tenant to prove by leading evidence that he was doing the business. It is further submitted by Shri Shah, learned advocate for the respondent that as it was not the case on behalf of the tenant that there was non user for reasonable cause, therefore, landlord was not required to prove and establish and therefore Appellate Court was not required to give finding that there was non user without reasonable cause. By making above submissions, it is requested to dismiss the present Civil Revision Application.

5.0 Heard the learned advocates for the respective parties at length and considered the impugned judgment and order passed by both the Courts below as well as evidence led from Record and Proceedings which is received from the Courts below. At the outset, it is required to be noted that the learned trial Court dismissed the suit and refused to pass eviction decree under Section 13(1)(k) of the Rent Act which is upset by the learned Appellate Court and by impugned judgment and order eviction decree has been passed under Section 13(1)(k) of the Rent Act. After considering the entire evidence on record and reasoning given by the learned Appellate Court, it appears that learned Appellate Court has not committed any error and / or illegality in re­appreciating the evidence on record and caome to the conclusion and finding that there was non user of the suit premises by the tenant. It is required to be noted at this stage that findings given by the learned Appellate Court are on re­appreciation of evidence and Court Commissioner's report (which was not challenged by the tenant), the electricity bill of last four months showing that that there was no consumption of electricity and also to show that in many of the times the meter reading was not done either on the ground that suit premises remained closed; and even considering the case on behalf of the tenant that the suit premises was not used and / or closed for the period between 1979 to 1981. However, it was the case on behalf of the tenant that the suit premises was closed between 1979 to 1981 due to his sickness and he was hospitalized. However, by leading the evidence, the tenant has failed to prove that he was hospitalized and / or he was sick due to which the suit premises was closed. Considering the totality of the facts and circumstances of the case and when tenant has failed to lead any evidence to show that in fact he was doing business of Photography and thereafter his son was doing business of Photography and Xerox , it cannot be said that the learned Appellate Court has committed any error and / or illegality in passing the decree under Section 13(1)(k) of the Rent Act.

6.0 Now so far as the contention on behalf of the petitioner that it was not pleaded by the landlord that the suit premises is not used for more than six months preceding to filing of the suit is concerned, the same has no substance. In fact it was the specific case on behalf of the landlord that the suit premises is not used since 1975. Plaintiff might not have proved the non user of the suit premises since 1975. However, fact remains that it was the specific case on behalf of the landlord that the suit premises was not used since 1975.

7.0 Now, so far as the contention on behalf of the petitioner that no finding has been given by the learned Appellate Court as required under Section 13(1)(k) of the Rent Act that the suit premises was not used for more than six months preceding the filing of the suit and that too without reasonable cause is concerned, it is to be noted that it was never the case on behalf of the tenant that the suit premises was not used for reasonable cause. Under the circumstances, the Court was not required to give a specific finding that the suit premises was not used without reasonable cause. It is also required to be noted that present Civil Revision Application is filed under Section 29(2) of the Bombay Rent Act and when the learned Appellate Court has re­appreciated the evidence on record and has come to the specific finding, the same is not required to be interfered with in exercise of revisional powers.

8.0 In view of the above and for the reasons stated above, present Civil Revision Application fails and deserve to be dismissed and is accordingly dismissed. Ad­interim relief if any, stands vacated forthwith.

( M. R. Shah, J. ) “kaushik”