1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 371 OF 2008 The Kunbi Sahakari Bank Ltd. & Anr. ..Applicants. Vs. Shri Haribhau Shankar Kharate & Ors. ..Respondents. Mr.Harinder Toor with Mr. S.B. Pawar, Mr. S.G. Bane and Mr. S.K. Chari i/b. M/s. S.K. Legal & Associates for the Applicants. Ms.Sangeeta S. Vaidya with Ms. S. Machate for Respondent Nos.1 to 3. CORAM : S.J. VAZIFDAR, J. DATED : 26TH JUNE, 2008 P.C. : 1. This Civil Revision Application challenges the order of the lower Appellate Court confirming the decree passed by the trial Court against the Petitioners/tenants directing them to hand over possession of the suit premises to the Respondent/landlord. The trial court decreed the Respondents suit on the ground of non-user for a period over six months prior to the filing of the suit as well as on the ground of bona-fide requirement. The lower Appellate Court 2 however confirmed the decree only on the ground of non-user. 2. I see no justification for interfering with the concurrent findings of the lower Courts. On facts, there can be little doubt that the ground had been established by the Respondents. Indeed, the only criticism against the judgments of the lower Courts is that they could have been supported by a more extensive analysis of the evidence which would only further support the Respondents case. 3. Translations of the notes of evidence were furnished by the Applicants. Although the translations are not entirely satisfactory they are sufficient to indicate that the Respondents had established their case. 4. There can be little, if any, doubt that the Applicants had not used the suit premises for over two years prior to the filing of the suit. It is admitted by the Applicants that they had acquired new premises admeasuring about 3000 sq ft. in a commercial area. The plaintiff examined five witnesses. The witnesses categorically deposed that the Defendants/Applicants had kept the premises locked as they had started their business at the new location and therefore did not want the suit property. They also 3 deposed to the effect that during this time the Applicants had not done any work from the suit premises. In fact PW 3 deposed that the Applicants had closed down the premises for four years and had commenced all the banking transactions from the new premises and had therefore kept the suit premises closed. PW4 also categorically stated that the banking transactions were being carried out from the new premises and that the Applicants did not need the suit premises. 5. The cross-examination on behalf of the Applicants of these witnesses did not shake the evidence at all. Nothing of any relevance was put to these witnesses. The lower Appellate Court for instance rightly observed that there was no serious challenge to the Respondents evidence. 6. The Applicants contended that loan and share transfer transactions were being carried on from the suit premises throughout. The witnesses examined by the Applicants did not support the Applicants case at all. They did not produce any evidence to indicate anything contrary to what the Respondents witnesses said. Further, as observed by the lower Appellate Court, 4 the bank manager who was examined on behalf of the Applicants admitted that there was no documentary proof to show that the Applicants were still doing any business from the suit premises. The notes of evidence disclose that the Applicants witnesses did not produce an iota of evidence to establish that the Applicants had carried on any business during this period from the suit premises. No evidence, documentary or otherwise, to this effect was produced. No electricity bills were produced. No water bills were produced. No correspondence or documents pertaining to the alleged business during this time was produced. It can hardly be argued that it is difficult to produce documents to evidence a bank doing the business of loans or of share transfers. No muster or other register was produced. 7. I am entirely in agreement with the observations of the first Appellate Court therefore that had the Applicants actually carried on business from the suit premises during the said period, it would have been the easiest thing for the Applicants to establish the same. There is nothing to even suggest that such evidence was for some reason not available to the Applicants during the trial. 5 8. I do not in these circumstances, see any reason to interfere with the findings of the lower Courts that the Applicants had not established that they had used the premises during the said period. In these circumstances a view contrary to the one taken by the lower Appellate Courts would indeed have been surprising. 9. Faced with this, it was contended on behalf of the Applicants that the pleadings were not adequate to support a case under section 13 (1) (k) of The Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947, which reads as under : - “that the premises have not been used without reasonable cause for the purpose for which they were let for a continuous period of six months immediately preceding the date of the suit ; or “ According to the Applicants, there was no averment in the plaint that the premises were kept closed for more than six months by the Applicants without any reasonable cause. Reliance was placed on the judgment of a learned single Judge of this Court in the case of Ashok V. Chavan versus Baburao S. Bhagat, 2002(6) Bombay Case Report, 736 in support of the submission that if there 6 is no pleading in that behalf then it is incomprehensible that the plaintiff can be said to have made out a cause of action against the tenant to invoke the ground of non-user under section 13 (1) (k). In other words, it was submitted that even assuming that the premises had not been used by the Applicants, the suit ought to be dismissed as there was no pleading in the plaint that the non-user was without any reasonable cause. Mr.Toor admitted that no ground regarding the pleadings being deferred had been taken before the Courts below or even in the present Civil Revision Application. He submitted that the question being one of law, the Applicants are entitled to raise the same even at this stage. I will assume in their favour that they are so entitled. 10. The submission as a general proposition of law, was not disputed. However it is necessary therefore to see whether such a plea was taken in the plaint. In my view, it was. It is not necessary that the pleading must only repeat the words of the section verbatim. It is sufficient if the pleadings make out the ground even in other words. The Applicants furnished a translation of the 7 Respondents plaint. I will assume that the translation is correct. In paragraph 6 the Respondents have pleaded that the Defendants/Petitioners had not used the said property since the last two years for any purpose and that if they surrendered the possession of the said property they would not suffer any hardship at all. In paragraph 5, it is pleaded that the Defendants did not require the property. It is further pleaded that the property was kept locked and was not in use for the mentioned purposes and that the rental premises were not being used for carrying on any business. 11. A fair reading of the plaint would indicate that the ground of non-user without any reasonable cause has been made out. This I think is clear from the averment that the Defendants do not require the property. Indeed, if the Defendants do not require the property it would necessarily mean that the non-user thereof as a result of not requiring the property was without reasonable cause. 12. It is also pertinent to note that the point is in a sense academic. It is not the Applicants case that the premises were not used for any particular reason/cause/purpose. The Applicants 8 case is in fact to the contrary. The Applicants case is that the premises were in fact being used. 13. Finally, it was submitted that the provisions of the Maharashtra Rent Control Act, 1999 are not applicable to the Applicants as it has a share capital of more than Rs. 1,00,00,000 and the decree is therefore void. 14. Even assuming that the Maharashtra Rent Control Act does not apply, it would make little difference to the Applicants' case. In that event the Applicants have virtually no defence. This is not a case of the trial Court or lower Appellate Court not having inherent jurisdiction to decide the matter. Whether the Transfer of Property Act or the Maharashtra Rent Control Act applies, the very Courts had the jurisdiction to decide the matter. This is not denied. The decree is for possession in substance. It matters little therefore under which provision the Respondent succeeds. 15. In the circumstances, the Civil Revision Application is dismissed. The time to vacate the premises is however extended up to and including 30.9.2008 subject to the Applicants filing within four weeks from today an affidavit containing the usual undertaking 9 including an undertaking to hand over quiet, vacant, and peaceful possession of the suit premises to the respondent on or before 1.10.2008 subject to any orders of the Apex Court.