The main legal point established in the judgment is that the suit for eviction was maintainable even if filed by two members of 'Association of Persons', and the plaintiff had succeeded in proving the non-user of the suit premises by the defendant.

JUDGMENT :

This Civil Revision Application challenges impugned judgment and decree dated 30 September, 2021 passed by the Appellate Court on the ground of ‘non-user’.

2. The suit premises is a commercial premises i.e. Room No.C/ F1, 1st Floor, ‘C’ Building on Plot No. 1, Prabhat Nagar, admeasuring 3,600 sq. ft. situated at Jogeshwari, Mumbai, in a building which is ground plus two storey. The suit premises is on the first floor. Admittedly, as of today there is no electricity in the suit premises.

3. The suit was filed by the landlord for eviction on the ground of non-user of the suit premises, which is a commercial premises. The Trial Court framed two Issues. The first issue was regarding ‘non-user’ of the suit premises, and second issue was ‘whether the plaintiffs were entitled to file a suit for possession?’ The Trial Court answered Issue no.2 in favour of the plaintiffs/landlords and held that the plaintiffs had a right to file a suit. As regards the issue of ‘non-user’, the same was answered in negative and the Trial Court dismissed the suit.

4. The original plaintiffs/landlords filed an appeal before the Division Bench of the Court of Small Causes challenging the findings recorded by the Trial Court as regards to the issue of the ‘non-user’. The Appellate Court framed two Points for Determination, first regarding ‘non-user’ and second ‘whether the plaintiffs were entitled for possession of the suit premises?’ The original tenant had not carried the Trial Court’s order in appeal on the issue which was answered in favour of the plaintiffs, i.e. ‘whether the plaintiffs were entitled for possession of the suit premises?’ Both the points as framed by the Appellate Bench, were answered in favour of the plaintiffs/landlord. And a decree of possession was passed in favour of the original plaintiffs.

5. The present Civil Revision Application challenges the impugned judgment and decree passed by the Appellate Court.

Mr. Sharad Bansal, learned counsel made his submissions on behalf of Applicant/Tenant :-

6. Mr. Bansal submitted that the Civil Revision Application challenges the impugned judgment on two counts :-

(i) First line of argument is that a suit itself was not maintainable as a suit was filed by two members of Raman Brothers an Association of Persons.

(ii) Second line of argument is regarding nonuser being not proved by the plaintiffs as document produced on record was only a letter written by electricity company in the year 2007, which stated that the electricity in the suit premises has been disconnected in the year 2004. The suit on the ground of non-user has been filed in the year 2010. He also submitted that the impugned decree is perverse, as the author of the said document was not examined. According to applicant (defendant), what is required to be proved in a suit for eviction for non-user is that non-use of the premises for last six months before filing of the suit.

7. Mr. Bansal further submitted that as regards the maintainability of the suit, he submitted that the landlords of the suit premises was a “Association of Persons”. Therefore, a suit could have been filed by the Association of Persons only through all its members.

8. Mr. Bansal further submitted that only two members of the Association of Persons, could not have filed the eviction suit. Neither any authority is produce to show that, all members of the Association of Persons were authorizing the two plaintiffs to file suit on their behalf. Therefore, according to him, the suit itself was not maintainable. He further submits that the Association of Persons is an unregistered body.

9. Mr. Bansal to fortify his submission on the issue about whether the suit was maintainable has taken through the cross examination of the PW No.1. Mr. Bansal submits that in the cross examination, there is an admission that Raman Brothers, is a Association of Persons and they are the landlords of the suit property.

10. Mr. Bansal further took me through the title of the plaint. Mr. Bansal