{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.170 OF 2008 Shamandas Deepchand Kundal, age: 63 years, Occ: Business, R/o Block No.4-5, Room No.9 & 10, Kumar Nagar, Tal. & Dist.Dhule. Petitioner Versus Smt.Durgabai Kaluram Agrawal (died), through L.Rs.: 1A Kishor s/o Kaluram Agrawal, age: 55 years, Occ: Business, R/o Behind Dr.Bhatwal Hospital, Malegaon Road, Agrawal Nagar, Dhule. 1B Sarlabai Madanlal Agrawal, age: 60 years, Occ: Household, R/o Vijay Industries Dal Mill, MIDC, Akola. 1C Hemabai Bhagchand Agrawal, age: 57 years, Occ: Household, R/o Nagpur. Respondents Mr. A.P.Bhandari, advocate for the petitioner. Mr. S.P.Shah, advocate for respondents CORAM : R.M.BORDE, J. DATE : 30 th March, 2011 ORDER: 1 The petitioner – tenant is assailing the order passed by District Judge-1, Dhule on 18.10.2008 in Civil Appeal No.57/2004, confirming the order passed by 4th Joint Civil Judge, Junior Division, {2} Dhule, on 29.11.2001 in Regular Civil Suit No.250/1995. 2 Respondent-landlady instituted a suit claiming recovery of possession of tenanted premises under Section 13(1)(k) of the Bombay Rents, Hotels and Lodging Houses Rates Control Act, 1948. 3 The property in possession of the tenant comprises of shops no.1, 2 and 3 bearing CTS No.4746/3, final plot no.109, situate at Dhule city. The shops were given on lease basis to the petitioner herein – original defendant on agreed monthly rent of Rs.275/-. The defendant was in arrears of payment of rent, as such, the landlady has initiated separate proceedings for recovery of rent. It is contended in the plaint that since the year 1992, defendant was not using the property for carrying out business and yet has retained possession thereof. The premises were let out to the defendant to run a hotel and he was carrying on business in the name and style as “Maharashtra Restaurant”. Defendant was directed to vacate the suit premises on account of non user of tenanted premises preceding six months of initiation of proceedings. However, defendant refused to do so, as such, plaintiff presented suit claiming recovery of possession of the tenanted premises. 4 Defendant contested the suit by filing written statement. He denied that agreed rent of the premises was Rs.275/- per month, however, according to to him, initial agreed rent was Rs.35/- per month, which was increased up to Rs.225/- per month from time to time. He denied the contention raised by the plaintiff that the premises are in unused state since 1992. {3} 5 The trial Court, after recording evidence of the parties, recorded a finding that the plaintiff has established her case in respect of non user of tenanted premises by tenant preceding six months of initiation of proceedings and as such, decreed the suit and directed eviction of the tenant. The judgment and decree passed by the trial Court was subject matter of appeal before the District Court at the instance of tenant. However, the appeal also came to be dismissed by District Judge-1, Dhule on 18.10.2008. 6 I have heard arguments advanced by Shri Bhandari, learned Counsel appearing for the petitioner and Shri Subodh P. Shah, learned Counsel appearing for Respondents. 7 It is contended by the petitioner that the Courts below have not properly appreciated the evidence placed on record by the tenant and the Courts below have arrived at erroneous findings. It is contended by the Counsel appearing for the petitioner that the finding of fact reached by the Courts below that the premises in possession of the tenant was in unused state since 1992 is perverse. It is vehemently contended that the documentary evidence placed on record to demonstrate that the tenant was in fact running the hotel in the tenanted premises has not been considered by the Courts below. The landlady has not entered into the witness box and has led evidence of her son. Shri Bhandari, learned Counsel appearing for the petitioner, has invited my attention to the documents placed on record in the form of certificate of Registration of Eating House, which was issued on 02.11.1991 by the Additional District Magistrate, Dhule and was renewed up to 31.12.1995, on depositing license fees on 28.12.1994. He has also invited my attention to the {4} certificate of Registration issued under the Shops and Establishments Act, 1948 as well as license issued by Municipal Council, Dhule and challan in respect of payment of income tax deposited by the tenant. It is his contention that the documentary evidence placed on record goes to show that in fact the tenant was running the hotel since 1992 and at no point of time, he has stopped business activity. 8 The trial Court as well as the appellate Court has considered the documentary evidence placed on record and has also taken into account the evidence led by the plaintiff to demonstrate that the suit premises were not being used by the tenant since 1992. The certificate of Registration of Eating House is got renewed by tenant on 28.12.1994, which was valid up to 31.12.1995. So far as the certificate issued under the Bombay Shops and Establishments Act is concerned, although the same was issued on 23.12.1991, it appears to have been renewed on 28.12.1994. The certificate issued by the Municipal Council, Dhule under Rule 5(3) of the Food Adulteration Rules appears to have been issued on 14.02.1994. So far as income tax challan in respect of payment of income tax is concerned, the tenant appears to have deposited income tax for the assessment year 1993-94, 1994-95 and 1995-96 on 30.04.1996, whereas, for subsequent year i.e. 1996-97, he has paid income tax on 02.11.1996 and for the assessment year 1997-98, the income tax appears to have been paid on 17.07.2008. Thus, the payment of income tax by the tenant is after presentation of the suit by the landlady seeking decree of eviction. 9 The Courts below have considered the oral evidence tendered by the landlady to substantiate her case. The son of the {5} landlady by name Kishan Agrawal has entered into witness box and has stated the case of the plaintiff. Plaintiff has examined P.W.2 Santosh Laxman at Exhibit-56, who is an employee of Maharashtra State Electricity Board and has deposed before Court that he has brought the meter reading card of the defendant in respect of suit premises and it is recorded therein that the premises are in locked condition since 1992, as such, entry in that regard, is recorded on the bills issued every month. Plaintiff has also examined the witnesses residing in the nearby locality who have deposed that the hotel, which was being run by the tenant, is closed since last 5 to 6 years. It has also been brought on record that the Municipal Council has stopped water supply in respect of tenanted premises since 1992. The Courts below, therefore, reached the conclusion that the contention raised by plaintiff that the premises are not being used for running hotel business gets substantiated. It is a matter of common knowledge that hotel business cannot be run without securing water supply, moreover vital evidence led by the official of the M.S.E.B. that the premises were found in locked condition since number of years, as such entry, in that regard, has been recorded while issuing electricity bills in respect of suit premises, shall have to be taken into account. Both the Courts below, on appreciation of evidence placed on record by the parties, have recorded a finding of fact that the premises in possession of the tenant were not used for a period of more than six months prior to institution of the suit. The finding of fact recorded by the Courts below, based on appreciation of evidence, need not be interfered while exercising revisional jurisdiction. 10 Learned Counsel for the petitioner has invited my attention to the judgments in the matter of Leela Rama Kamathi Vs. {6} Mohamadalli Dastagir Saheb Belgaonkar & another, reported in 1976 U.C.R. (Bom) 233 and in the matter of Chindha Nathu Gujar Vs. Murlidhar Shankar Gune, reported in 1997 (3) Bom.C.R. 53. Both the judgments are distinguishable on facts and have no application to the present case. As has been held by the Apex Court in the matter of Patel Valmik Himmatlal & others Vs. Patel Mohanlal Muljibhai, reported in (1998) 7 SCC 383, “the mere fact that a different view is possible on reappreciation of the evidence cannot be a ground for exercise of revisional jurisdiction. The High Court cannot substitute its own findings on a question of fact for the findings recorded by the Courts below on reappraisal of evidence.” 11 For the reasons recorded above, I do not find any reason to cause interference in the concurrent orders passed by the Courts below, while exercising revisional jurisdiction. The Civil Revision Application is devoid of substance. 12 Hence, Civil Revision Application stands rejected. 13 Learned Counsel for the petitioner seeks time for vacating the suit premises. However, on consideration of the findings recorded by the Courts below, it is evident that the suit premises are in unused state since much prior to 1995, I do not deem it appropriate to entertain request of grant of time for vacating the suit premises. The request made by the petitioner stands rejected. R.M.BORDE JUDGE