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2012 Supreme(Bom) 877
High Court of Judicature at Bombay
G.S. GODBOLE
Gopaldas Khushaldas Parmar
Versus
Sanmukhlal P. Shah
Civil Revision Application No.753 of 2009
Decided on: 27-04-2012
For the Applicant:R.N. Bhagattjee, Advocate.
For the Respondent:Piyush N. Shah, Advocate.
Headnote:MAHARASHTRA RENT CONTROL ACT, 1999 - Section 16(1)(n) - CPC, Section 115 - Suit for possession - Where suit for possession was filed on ground of non-user of suit premises by defendant-tenant and non-user is proved therefore entire burden of showing reasonable cause for non user for relevant period shifts on defendant.
Reasonable cause depends on facts of each case. The reasonable cause must be for the relevant period of non-user. In this case, the respondent-defendant neither pleaded with sufficient particulars as to why he was not using the suit premises during the relevant period from May, 2004 to November, 2004 nor he led any oral or documentary evidence in support of that period. Therefore, this was a case where respondent- defendant has failed to discharge burden cast on him. The defendant has pleaded and has brought evidence on record to show that his wife was suffering from heart ailment and has undergone by-pass surgery in the year, 2003.
However, the relevant period as noted above is from 2004 to November 2004. There is no pleadings nor any evidence to show that actually the ailment of the wife of the respondent continued during the relevant period. This crucial fact has been completely overlooked by the Appellate Court. Once non-user was proved, the entire burden of showing reasonable cause for non-user had shifted on the defendant-tenant a in that context of the case, the defendant-tenant has miserably failed to discharge that burden.
Though the defendant had led sufficient evidence to support the act of non-user till October, 2003 but there is no evidence to justify the non-user for the subsequent period. The first Appellate Court has proceeded on assumption that because there was justification for non-user on account of the ailment of the wife of the respondent till October, November, 2004 such situation continued till the relevant period ending November, 2004.
Though the first Appellate Court is a last fact finding Court, is the facts of this chase and on the basis of evidence available on record that the trial Court had recorded a well reasoned finding regarding lack of sufficient cause for non-user and the first Appellate Court could not have reversed the said findings in the absence of any specific pleadings and evidence on the part of the defendant. Therefore, the first Appellate Court has exercised jurisdiction not vested in it by law, warranting interference by this Court under Section 115 of Code of Civil Procedure, 1908.
Heard Mr. Bhagattjee for the Applicant/ Petitioner and Mr. Shah for the Respondent at quite some length.
2. This Revision Application takes exception to the Judgment and Order dated 21st July, 2009 passed by the Appellate Bench of the Court of Small Causes at Mumbai (Bandra Branch) in Appeal No.52 of 2008, whereby the Appeal filed by the Respondent-Tenant was allowed and the Decree for eviction passed by the Trial Court was set aside.
3. Certain facts are not in dispute. The relationship of landlord and tenant is not in dispute. Area and description of the suit premises is also not in dispute. On 22nd November, 2004, the Petitioner had filed RAE Suit No.58 of 2005 against the Respondent in the Court of Small Causes at Mumbai under Section 33 of the Maharashtra Rent Control Act, 1999 for possession of the suit premises on the ground of reasonable and bonafide requirement and on the ground of nonuser which is a ground contemplated by Section 16(1)(n) of the said Act. The Trial Court had negatived the ground of bonafide requirement and that was not pressed into service even in the Appeal and in this Court. Hence, I need not discuss the aspect of bonafide requirement.
4. In so far as ground of non-user is concerned, the relevant averments in the plaint read thus :
"........ The Defendant has not been in use and occupation of the Suit premises from March/April 2002, and he has been absent from the Suit premises for more than six months from September, 2002 to September, 2004, save and except the Defendant had given the suit premises for use to his neighbour during December, 2002 /January, 2003 and during this period the electricity consumption was 216 units and No electricity was consumed during September, 2002 to November, 2002 and further No electricity consumption from March, 2003 till November, 2003 and the Suit premises is not in use for more than six months prior to the filing of the Suit."
5. It is clear from the reading of the Plaint that the Plaintiff has not averred that the suit premises are not being used without sufficient cause.
6. The Respondent filed written statement and denied the allegations regarding nonuser. The relevant averments in the written statement of the Respondent are as under :
"....... The Defendant denies the allegations in the suit paragraph that this Defendant is not in use and occupation of the suit premises for more than six months from September, 2002 to September, 2004 as falsely alleged. This Defendant also does not admit the contention of the Plaintiff that there was no Electricity consumption during the period March, 2003 till November, 2003 as falsely alleged. This Defendant say and submit that non recording of Electricity consumption may be on account of Mechanical failure of the meter and it can not be presumed that this Defendant has not been using and occupying the suit premises during the relevant period".....
Thereafter the Respondent has stated as under:
"3. As stated in the earlier paragraph this Defendant and his wife used to go to my daughters' place of residence either at Borivali or Dahisar and accordingly in or about end of January, 2003 this Defendant had gone to Borivali along with his wife, who suddenly became ill with a result that we had to prolong our stay. Ultimately she got a heart attack and was admitted to Poornima Hospital at Borivali on 4/3/2003 and discharged on 10/3/2003. As advised this Defendant had to obtain Angiography's report for his wife's ailment and accordingly the same was obtained from Holy Family Hospital at Branch on or about 23rd March, 2003. Thereafter for further treatment she was required to be admitted to Jaslok Hospital, Mumbai on 23rd April, 2003 and was discharged after treatment on 9/5/2003. This Defendant craves leave to refer to and rely upon medical reports in that behalf from Poornima Hospital, Holy Family Hospital and Jaslok Hospital. Taking advantage of absence of the Defendant from the suit premises during the said period, th
