1 901 CRA.437.11 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 437 OF 2011 Mansukhbhai Bhimji Makani. ... Applicant Versus Sorab Jamshed Irani (Since deceased through legal heirs) 1A. Smt. Shera Sorab Irani and others. ... Respondents ----- Mr. Vinay M. Bhate for the Applicant. Mr. R.M.Haridas for the Respondents. ----- CORAM : A.S.OKA, J. DATE : 20 th December, 2011. P.C. 1 Heard the learned counsel appearing for the parties. 2 The Applicant is the original Defendant – tenant and the Respondent No.1 is the original Plaintiff – landlord. The challenge in this revision application is to the decree of eviction passed against the Applicant by the Appeal Bench of the Court of Small Causes in an appeal arising out of the suit for eviction filed by the Respondents under the Maharashtra Rent Control Act, 1999. The suit premises is a room 2 901 CRA.437.11 on the ground floor of the building which according to the case of the Respondents was let out to the Applicant for the purposes of residence. It was contended that even the suit premises was assessed to Municipal Taxes on the basis that the same was a residential premises. Reliance was placed on special notice issued under the Mumbai Municipal Corporation Act, 1888 dated 8 th February, 1996 informing the Respondents that the rateable value of the suit premises has been increased. After making inquiry, the Respondents realized that the rateable value has been increased on account of the change of user of the suit premises. An allegation has been made in the suit that the Applicant committed acts contrary to clause (O) of Section 108 of the Transfer of Properties Act, 1882. It was alleged that the Applicant has changed the user from residential to commercial. Another allegation is made regarding carrying out permanent construction. The suit was filed by the Respondents in May 2000. The suit was contested by the Applicant. The Applicant denied that the suit premises was let out for residential purposes. He contended that in the year 1979, the suit 3 901 CRA.437.11 premises was let out for the purposes of carrying on business. 3 The trial Court framed various issues. The trial Court dismissed the suit by answering all the issues against the Respondents. The trial Court observed that the suit premises appears to be a room. The trial Court referred to the documents relied upon by the Applicant and accepted that atleast from 1982, the suit premises was being used for business purposes. In the appeal preferred by the Respondents, a decree for possession has been passed on the ground of non-user. 4 The learned counsel appearing for the Applicant submitted that there is no evidence on record to show that in the year 1979, the suit premises was let out for the purposes of residence. He submitted that there are documents on record for showing that atleast from 1981, the suit premises was being used for business purposes. He submitted that the suit was barred by limitation. He pointed out that the Respondents admitted in evidence that he was having his office in the building opposite to the suit premises. He, therefore, submitted that if not from the year 1979, atleast from 1981, the Respondents must have 4 901 CRA.437.11 seen the user. He submitted that in view of the Article 66 of the Limitation Act, 1963, the suit on this ground filed in the year 2000 was barred by limitation. He submitted that considering the long standing user for business purposes, the case of the Respondents that the suit premises was let out for residence ought not to have been accepted. He submitted that the Respondents accepted the long non-residential use of the suit premises atleast from the year 1981 and have not taken any action till the year 2000. 5 I have given careful consideration to the submissions. The Appellate Court has relied upon an admission of the Applicant that the description of the suit premises is Room No.4 and not Shop No.4 and that the earlier tenant was using the same for residence. The Appellate Court held that even according to the case of the Applicant, he had taken the suit premises on rent from the year 1979. As far as the licence under the Shops and Establishment Act, 1948 of the Applicant is concerned, the same is of the year 1983 and there is one electricity bill produced on record of October 1981. The Applicant admitted that 5 901 CRA.437.11 the Municipal Corporation had issued notice for increasing the rateable value because the suit premises was being used for commercial purposes. He admitted that he had no documentary evidence to show that from the inception of the tenancy i.e. from January 1979, he was using the suit premises for commercial purposes. 6 The Respondents produced before the trial Court special assessment notice dated 8 th February, 1996 issued by the Municipal Corporation. By the said notice, rateable value was proposed to be increased. The Appellate Court in paragraph No.11 of the judgment has noted the undisputed position that the entire building was assessed by the Municipal Corporation as residential prior to 1995-96. The bill dated 23 rd March, 1996 of Municipal Taxes produced on record shows that in addition to rateable value of the residential premises, non-residential rateable value was added by the Municipal Corporation. The Appellate Court has referred to the admission of the Applicant in the cross- examination that the Municipal Corporation issued notice for increasing the rateable value because he was using the suit premises for 6 901 CRA.437.11 commercial purposes. On one hand, the Applicant failed to prove on evidence the non-residential or commercial user of the suit premises from inception of tenancy and on the other hand, from the year 1995-96, there was an enhancement in the rateable value on account of commercial user of the suit premises. As far as the bar of limitation is concerned, in the evidence recorded in the year 2006, the original Respondent admitted that he was having his office in the building opposite to the suit premises. The Appellate Court observed that nothing was brought on record to show that the Respondent was having his office in front of the suit premises from the year 1981 or 1982. Unless it was proved that even prior to the year 1988, the office premises of the Respondents was situated in the building opposite to the suit premises, the bar of limitation cannot be invoked inasmuch as according to the case of the Respondents, they became aware of the change of user when the special assessment notice was received. Therefore, the Appellate Court has rightly observed that the cause of action arose when the Respondents had knowledge about the change 7 901 CRA.437.11 of user. 7 Hence, the decree passed on the ground of change of user cannot be faulted with in revisional jurisdiction under Section 115 of the Code of Civil Procedure, 1908. The revision application is accordingly dismissed. 8 On the prayer made by the learned counsel appearing for the Applicant, the ad-interim relief granted on 13 th June, 2011 is extended by a period of three months from today. [ A.S.OKA, J ]