1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 656 OF 2009 1. Geeta Veljee, widow of late Nazim Veljee, 2. Raunaq Veljee, Both major, and resident of House No.11, Alto Nagali, Near Chowgule's Bungalow, Donapaula, Goa 403 004. ....... Petitioner. V/s. 1. Shri Sertorio Celho Pereira, r/o. Panaji Goa (since deceased) through his legal representatives respondents No.2 to 5 and 14. 2. Dr. Herlander C. Pereira, 3. Smt. Maria C. Pereira, Both r/o. England. 4. Dr. Amandio C. Pereira, r/o. Mumbai. 5. Shri Jose Elmano C. Pereira, r/o. Panaji, Goa. Shri Kamruddin A. Veljee, (since deceased) through is LRs. 6. T. Veljee, 7. Brenda Veljee, 2 Both r/o. C/o. Benetton Show Room, Opp. Delhi Darbar, Panaji, Goa. 8. Mahedi Veljee 9. Rukshana Veljee, Both r/o. T & A Showroom, Navelkar Plaza, Atmaram Borkar Road, Panaji, Goa. 10. Noorallah Veljee, 11. Doris Veljee, Both r/o. Rizvi Towers, St. Inez, Panaji, Goa. 12. Laila Gilani, 13. Mubarak Gilani, Both c/o. Nurullah Veljee, Rizvi Towers, St. Inez, Panaji, Goa. 14. Ms. Celina Coelho Pereira, c/o. Shri J.E. Coelho Pereira, next to Church View Building, Panaji, Goa. 15. President, Administrative Tribunal Goa, 3rd Vaidya Building, near Municipal Market, Panaji, Goa. 16. Rent Controller, 3 Office of the Collectorate, Panaji, Goa. ........ Respondents. Mr. P. A. Kholkar, Advocate for the petitioners. Mr. V. B. Nadkarni, Senior Advocate with Mr. J. Godinho, Advocate for respondents No.2, 3, 4, 5 and 14. Mr. D. Shirodkar, Advocate for respondent No.10. Mr. G. Shirodkar, Govt. Advocate for respondent No.15. CORAM :- S.C. DHARMADHIKARI, J. Date :- 17th March, 2011. P.C. :- This writ petition under Articles 226 and 227 of the Constitution of India is directed against the concurrent Judgments rendered by the Additional Deputy Collector, Authorised Officer & Rent Controller, Panaji, Goa and the Administrative Tribunal, Goa. 2. The petitioners, and respondents No.6 to 14, are the heirs of original tenant Kamruddin A. Veljee. Respondents No.1 to 5 are the original landlords. 3. Respondents No.1 to 5 instituted an eviction application 4 being Case No.Rent/12/86 for eviction of the petitioners from the suit premises. The suit premises were let out for running a shop. There are two rooms on the ground floor of the building, situate in the property bearing Matriz No.336 at Panaji, Goa. 4. The ground for eviction is under Section 22(2)(f) of the Goa, Daman and Buildings (Lease, Rent and Eviction) Control Act, 1968 (hereinafter, referred to as “the Rent Act”). 5. That is a ground for eviction of a tenant on his ceasing to occupy the building for a continuous period of four months without reasonable cause. 6. The submission of Shri Kholkar, learned Counsel appearing on behalf of the petitioners is that the Courts below have failed to appreciate that an Eviction order on this ground can be made only after giving the tenant opportunity of showing cause that he has ceased to occupy the building for a continuous period of 4 months, without reasonable cause. In the instant case, in the eviction application, it has been stated that the petitioners' predecessor-in-title 5 had ceased to occupy the building, but the pleading itself is lacking in clarity and precision. The pleading has been that the original tenant had, for over a year, closed down the shoe business in the premises and removed the board of his business and there was no electricity consumption in the suit premises and the same had been continuously locked. It is in such circumstances, it is alleged that the original tenant had ceased to occupy the suit premises for a continuous period of four months without reasonable cause. It is submitted that the burden is on the landlord to prove that the tenant has ceased to occupy the premises for a continuous period of four months prior to the date of filing of the application for eviction. In this case, the eviction application was filed on 1st April, 1986. However, all that has been urged is that the premises were locked; that no business was being carried on for over a year or more and that there was no electricity consumption recorded. This can hardly be said to be a pleading and when such a case is sought to be proved, it is equally vague. None of the witnesses have been able to show as to from what date till the filing of the application for eviction, the premises have not been used. It is submitted that the requirement of law, namely, that the tenant has ceased to occupy the premises for a continuous period of four months, has not been satisfied. 6 In this connection, my attention is invited to the depositions on record and it is contended that some vague assertion is made that the premises were found locked, but the witnesses themselves are employed and have been working from morning till late in the evening and they could not have deposed as to the continuous ceasing to occupy the suit premises by the original tenant for the period specified in law. Equally examination of somebody from the Electricity Department, is not an adequate proof, because in the cross examination the witness has admitted that he is not concerned with the billing and recording of meter readings. In such circumstances, there was absolutely no proof and version of some interested witnesses like other tenants, cannot be called a proof of the averments in the eviction application. The Courts below failed to appreciate this vital aspect and, therefore, their orders are vitiated by errors apparent on the face of the record. This is a clear case of misappreciation of the evidence and, therefore, this Court is required to interfere in its writ jurisdiction. It is also submitted that the original tenant had not disputed that he had left India for Pakistan in November, 1985 and returned back in the month of January, 1986 whereafter, he had carried on his business from the suit premise. In these circumstances, this Court should interfere and 7 set aside the impugned orders. 7. On the other hand, Mr. Nadkarni, learned Senior Counsel appearing for respondents No.1 to 5/original applicants, has supported the impugned orders and has invited my attention to the written statement, wherein it is a clear case of the petitioners that the petitioners' predecessor-in-title had used the premises and he had carried on business therefrom by investing money by earning income from sales to the extent of Rs.5.00 lakhs. However, none of the documents which are referred to in the written statement were ever produced and therefore, the later part of the provision by which a burden is cast on the tenant, viz. that the premises were not used for a continuous period of 4 months, without reasonable cause, has not been proved at all. In such circumstances, and this being an attempt at reappreciation and reappraisal of the oral and documentary evidence, this Court cannot undertake the same in writ jurisdiction. Hence, the petition be dismissed. 8. With the assistance of the Counsel appearing for the parties, I have perused the two Judgments rendered and some of the averments 8 in the eviction application and the statements made in the written statement. I have also perused the relevant statutory provisions and the decisions brought to my notice. In this case, respondents No.1 to 5/original applicants approached the Court below with a case that the original tenant/predecessor-in-title of the petitioners needed to be evicted from the suit premises. They pointed out that in terms of the lease deed dated 31.10.1964, the premises in question were let out for running a shop for selling shoes, chappals, etc. Respondents No.1 to 5 stated that for a period of over a year the premises had been closed down inasmuch as the shoe selling business had not been conducted from the premises; the sign board removed, and that there was no electricity consumption. The same had been continuously kept locked. It is in such circumstances they stated that the original tenant ceased to occupy the suit premise for a continuous period of four months without reasonable cause. As has been pointed out, in answer to this case, what the original tenant stated in the written statement is that he was 65 years of age. He was not keeping well. He was suffering from diabetes and arthritis. He was unable to walk freely and therefore, he was not active. He was unable to carry on business regularly and during the normal business hours. He had also pointed out that he had 9 four sons and most of them had either gone outside Goa or carrying on independent business of their own. They therefore were not available to assist him in his old age in the shoe business and therefore, being handicapped for last 3 years prior to his deposition, he had not been regularly attending the business, though he continued every day for limited hours and sometimes with a break of couple of days when he had to leave Goa for Bombay for medical treatment. It was his case that he left India for Pakistan in 1985 and thereafter, he fell ill there. He was unable to return immediately. In the written statement and particularly paras to which my attention is invited, it is not the case that the original tenant returned back and commenced the business. He stated that he had a stock of Rs.60,000/- in the showroom and had a Bank Account. 9. Therefore, in this case, it is not in serious dispute that the premises were let out way back in the year 1964 for business. They were let out for carrying on shoe selling business. The premises were used for sometime and thereafter, the original tenant, on account of ill- health, was handicapped in running the business. His sons were not with him to support him in the business. In such circumstances, when 10 the evidence on record is that from January, 1985 there has been no electricity consumption recorded, although there may be an electric meter installed in the suit premises, that no proof of any sales or investment of amounts therein, having been produced by the petitioners that the averment made in the application stands proved. The witnesses who have been examined to support the case of the landlord may have not stated the exact period, but they have deposed that the premises were found locked. Some of them have stated that the premises were not used from 1979 onwards. The electricity consumption that is shown is absolutely nil and that is for a continuous period from January, 1985. Relevant date may be continuous period of 4 months prior to the filing of eviction application and some of the witnesses have gone to the extent of stating that the premises were unused till 1990, however, that will not disprove and falsify the case of the landlord. There is no merit in the submission of Shri Kholkar that in this case the statements made in the depositions being vague, they were not worthy of being relied upon, that there is no proof and, therefore, the Courts below could not have passed an order of eviction. The cross examination of the witnesses examined would go to show that the original tenant was old and that he was not carrying on the 11 business from the premises regularly. The premises were thus unused and I am in agreement with Mr. Nadkarni that the attempt is to seek reappreciation and reappraisal of the oral and documentary evidence on record and such a course is impermissible in law. The concurrent findings recorded by the Authorities below do not suffer from any error apparent, as they have been rendered in the context of the statutory provision and upon scrutiny and appraisal of the evidence. The findings are consistent therewith. The only statement that has been made in the affidavit-in-evidence of Nurullah Veljee, son of the original tenant, is that the original tenant went to Pakistan in November, 1985, but came back to India on 18.1.1986. Merely because the son of the original tenant produced the passport, would not prove that the business was being carried on from the suit premises by the original tenant. At the most, the passport may prove his return back to India. In such circumstances, it cannot be said that there was a lapse on the part of the Courts below in not referring to the passport which was brought on record. 10. In such circumstances, the writ petition fails and it is dismissed. 12 11. The judgment that has been relied upon by Mr. Kholkar and particularly in case of Babu Ram Gopal and ors. vs. Mathra Dass, reported in AIR 1990 SC 879 is concerned, there the statutory provision may have been identical. However, in that case, the Supreme Court was concerned with a series of objections and mainly that the tenant did not continue to occupy the premises after 1971, but the eviction petition was filed in 1973. The Supreme Court, therefore, found that the non-occupation for a period immediately preceding the date on which the ejectment application was filed, is relevant. Different Rent Acts and the provisions therein have been referred. In such circumstances, I am of the opinion that the observations in this decision are of no assistance. In fact, the Supreme Court holds that the non-occupation by the tenant must continue till the date of the filing of the application for eviction, which ratio if applied to this case, the pleading and the proof indicates that the original tenant did not use the premises continuously for a period of four months prior to the institution of the eviction application. He has failed to show reasonable cause for such non-user. 12. Other decisions need not be referred to, because they are on 13 the principles of law of evidence. 13. In the result, the writ petition fails and it is accordingly dismissed, but without any order as to costs. At this stage, the petitioners' Counsel applies for a stay of execution of the order of eviction. That request is opposed by Mr. Nadkarni. The request is to stay the execution of the order of eviction for a period of six months which, in may opinion, is unreasonable and excessive and cannot be accepted. Request, in that behalf is, therefore, rejected. S.C. DHARMADHIKARI, J. ssm.