1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 200 OF 2007 CIVIL REVISION APPLICATION NO. 200 OF 2007 CIVIL REVISION APPLICATION NO. 200 OF 2007 Bharatkumar Shantilal Chopda .... Petitioner (Org. Appellant/Deft) Versus Pune Municipal Servants’ Co-op. Urban Bank Ltd. ... Respondent (Orig.Respondent/Plff) Shri Abhay Abhyankar, Senior Counsel i/b. Shri Bharat Joshi, Advocate, for the petitioner. Shri V.G.Peshve, Advocate, for the respondent. CORAM: J.H.BHATIA, J. CORAM: J.H.BHATIA, J. CORAM: J.H.BHATIA, J. DATE: 3rd June, 2008. DATE: 3rd June, 2008. DATE: 3rd June, 2008. P.C. C. C. 1. Heard learned Counsel for the parties and perused the copies of the relevant records. 2. Admittedly, the respondent/plaintiff is the 2 landlord and the petitioner/defendant is the tenant in the suit premises, being Shop No.12, situated in the building of the respondent. The respondent is a Co-operative Bank. The petitioner was inducted as a licensee on 1.9.1972. However, by virtue of the amendment in the Rent Act, he has become tenant. The petitioner was running business of plywood, wood and other similar material in the name and style of "Wood House" in the suit shop. The respondent filed Regular Civil Suit No.143 of 2001 on 19.3.2001 contending that the petitioner was not using the suit premises for the purpose for which it was let out to him for more than six months. He has started his said business in the name and style of "Touch Wood" in different premises in the same area and the suit shop was kept locked for a period of more than six months before filing the suit. In view of this, the respondent sought decree of eviction and possession. The petitioner contested the suit and denied the contentions of the respondents. According to the petitioner, the business in the name and style of "Touch Wood" is being run by his wife and he himself was actually carrying on the business in the suit premises when the suit was filed and continued the same even after filing the suit. 3. The respondent-plaintiff which is a Bank, examined in all five witnesses, including its Manager in support of its contention. The petitioner examined himself and one Deepak Kotwal, a chartered accountant 3 in support of his contention. He also produced several documents, including the electricity and telephone bills, income tax and sales tax returns in support of his claim. After hearing both parties, the trial Court passed the decree in favour of the plaintiff/respondent and directed the petitioner to vacate the premises within 45 days. The petitioner challenged that judgment and decree in Civil Appeal No.253 of 2005. The Appeal also came to be dismissed by the District Court, Pune. Both the Courts gave concurrent finding that the petitioner was not carrying on business in the suit premises and it was kept locked for a period of more than six months prior to the filing of the suit. The petitioner has challenged the findings of the Courts below in the present Revision Application. 4. Mr. Abhyankar, learned Senior Counsel for the petitioner vehemently contended that the Courts below had not properly considered the documentary as well as oral evidence led by the present petitioner in support of his claim that he was actually carrying on the business in the suit premises even when the suit was filed. I have carefully perused the relevant documents as well as the oral evidence. 5. The plaintiff/respondent examined in all five witnesses who deposed that the defendant/petitioner was not carrying on business in the suit premises for more than six months and that he had shifted his business in 4 different premises in the same area and was carrying on business in the name and style of "Touch Wood". The petitioner naturally denied this contention and, according to him, the business of "Touch Wood" is being carried on by his wife. It is material to note that in the cross-examination, the petitioner admitted that his wife is housewife. If it is so, it is difficult to believe that his wife is actually doing the business. Deepak Kotwal is a chartered accountant engaged by the petitioner for submission of his Sales tax and Income tax returns. Deepak Kotwal is also residing in the premises of the Bank in the same building. In the examination-in-chief, he deposed that the shop of the petitioner is situated in the same building. The Courts below rightly noted that nowhere in his evidence Deepak Kotwal actually deposed that during the period of about six months or so prior to the filing of the suit i.e. during the year 2000-2001, the petitioner was actually carrying on business in the suit premises. He conveniently kept silent on this aspect. 6. Three electric bills for the month of November, 1999 were produced by the petitioner himself. These are the bills in respect of the meters in the suit premises. These bills indicate that one meter was not in existence and the other two meters were not accessible for the purpose of reading on 4.5.2000 and also on 12.1.2001. It indicated only the previous reading of 5730 as on 2.3.2000. The consumption of 5 electricity was shown to be zero in both the bills. However, on the basis of the previous average consumption, the bills were issued. If these two bills are taken into consideration, it is clear that after 2.3.2000, there was no consumption and whenever the staff member of the MSEB went to the shop for taking meter reading, the meter was inaccessible which shows that the shop must have been kept closed. 7. The petitioner also relied upon certain bills of telephone No.4473943 which was allegedly installed in the suit premises. However, on the bill, the address is "Shree Chopra House, New Hill View Society, Pune". Admittedly, that Society is situated in Shivajinagar and not at Sadashiv Peth where the suit shop is situated. The learned counsel, after taking instructions from their clients, make a statement that the distance between Shivajinagar and Sadashiv Peth is about 5 kms. Normally, on the telephone bill, the address of the place where the telephone is installed, will have to be shown. It is possible that a person may have residential and business premises at different places and he may give standing instructions to the Telephone Department to tender all the telephone bills at one place. However, if such instructions are given, the same have to be proved either by producing documentary evidence or by examining the concerned staff member of the Telephone Department. No such evidence was produced. Mr. Abhyankar, learned Senior 6 Counsel for the petitioner pointed out that in the Telephone Directory, the particular telephone is shown to be installed in Sadashiv Peth premises. However, there is discrepancy about the address in the telephone directory and on the telephone bill. Therefore, the burden would lie on the defendant/petitioner to clarify this discrepancy, for which no attempt has been made. 8. Mr. Abhyankar also contended that the petitioner had produced the muster roll-cum-wage register of his shop i.e. Wood House in support of his contention that two employees were working in the said shop during the year 2001. The Courts below have rightly pointed out that none of the employees of the shop was examined. The petitioner has not examined even his wife or the employees working in another shop i.e. "Touchwood". Admittedly, none of the neighbours of the suit premises were examined to support the claim of the petitioner that he was actually running the business in the suit premises. 9. Taking into consideration the material on record, I am unable to accept the contention of Mr. Abhyankar, learned Senior Counsel that the Courts below have committed serious error in appreciating the evidence or that the Courts below have failed to take cognizance of certain evidence which was available on record. The scope of the Revision Application is very limited. The Courts below, after having considered 7 whole of the documentary evidence, gave the concurrent finding that the defendant/petitioner is not doing business in the suit premises and the shop was closed for a period of six months or more before filing the suit. I see no reason to interfere in the said finding. 10. In the result, the Revision Application stands dismissed. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)