1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.148 OF 2008. 1. M/s. Chimandas Dineshkumar, 5, J.M.P. Market, Polan Peth, Jalgaon. 2. Shri.Vishandas Vatumal Motwani Age : 58 years, Occ : Business, R/o 5, J.M.P. Market, Jalgaon. 3. Shri.Prakash Vatumal Motwani Age : 35 years, Occ : Business, R/o 5, J.M.P. Market, Jalgaon. 4. Smt.Sitabai Ramchandra Lahori Age : Major, Occ : Business, R/o 5, J.M.P. Market, Jalgaon. 5. Shri.Tulsidas Sundardas Jainani Age : Major, Occ : Household Work, R/o Vidyanagar, Jalgaon. ..APPLICANTS VERSUS Shri.Purshottam Kashinath Lathi (Died) Through his L.Rs. (Amendment carried out as per order passed below Exh.21). A) Chandrakala Purushottam Lathi Age : 65 years, Occ : Household, B) Shrikant Purushottam Lathi Age : 36 years, Occ : Business, C) Sunil Purushottam Lathi Age : 33 years, Occ : Business, 2 A, B, C R/o 7, Polan Peth, Jalgaon. D) Sau.Sushama Vijayarao Patil Age : 42 years, Occ : Service, R/o Thane (East). E) Sau.Sandhya Prakash Mantri Age : 35 years, Occ : Household, R/o Rajkamal Chauk, Amravati. 2. Smt.Rakhi @ Rausiya Manohar Lahori, Age : Major, Occ : Business, R/o 5, J.M.P. Market, Jalgaon. 3. Shri.Manohar Vathumal Lahori Age : Major, Occ : Business, R/o Vidyanagar, Jalgaon. 4. Smt.Mohinibai W/o Kanhyalal Lahori Age : Major, Occ : Business, R/o Vidyanagar, Jalgaon. ..RESPONDENTS ------------------------------------------------------ Mr.Gugale holding for Mr.A. G. Talhar, Advocate for applicant. Mr. R. R. Mantri, Advocate for Respondent No.1(A) to (E). ------------------------------------------------------ (CORAM : R.K. DESHPANDE, J.) DATE OF JUDGMENT RESERVED : 5 th November, 2009. DATE OF JUDGMENT PRONOUNCEMENT :17 th November, 2009. ------------------------------------ JUDGMENT : This civil revision application preferred by the tenants challenges the judgment and order dated 3 28th August, 2008 passed in civil appeal no.149/1998 by the learned Principal District Judge, Jalgaon. By the said judgment and order, the appeal filed by the respondents-landlords is allowed by setting aside the judgment and order dated 10th July, 1998 passed by the learned Joint Civil Judge, Junior Division, Jalgaon dismissing the regular civil suit no.390/1994 for eviction and possession filed by the respondents- landlords. The applicants shall hereinafter referred to as the `tenants’ and the respondents as the `landlords’. 2. The facts leading to the case are as under:- In this civil revision application, the only question raised by the tenants is regarding grant of decree of eviction and possession by the Appellate Court on the ground of non-user of the suit premises and hence, the facts of the case, the evidence on record and the findings of Courts below which are relevant for the purpose of deciding this question are stated and considered. The landlords filed regular civil suit no.390/1994 on 29.10.1994 against the 4 tenants for eviction and possession on the ground of (i) non-user of the premises, (ii) change of user of premises and (iii) reasonable and bonafide requirement of the suit premises. The learned Joint Civil Judge, Junior Division, Jalgaon dismissed the said regular civil suit on 10.07.1998. Against which, the regular civil appeal no.149/1998 was preferred by the landlords which was allowed on 03.03.2006. On civil revision application no.148/2007 being preferred by the landlords, this court remanded the matter to the Appellate Court for decision afresh on two aspects namely; (i) non-user of premises and (ii) change of user. After remand of the matter, the Appellate Court decided the regular civil appeal no.149/1998 by its judgment and order dated 28.08.2008 granting decree for eviction and possession to the landlords against the tenants on the ground of non-user of suit premises under section 13(1)(k) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. This judgment and order is underchallenge in the present revision application. 3. The suit premises are shop no.42 situated on 5 ground floor of two storage building i.e. Municipal house no.7, Polan Peth, Jalgaon, C.T.S. No.1855/1 situated at Jalgaon. It was let out to the tenants on monthly rent of Rs.150/- and additional charges such as educational taxes and employment taxes of Rs.250/-. The landlords alleged that the tenants were not using the suit premises continuously for more than six months prior to January, 1990 and they had shifted to 5, J.M.P. Makret, Jalgaon and such non-user was without reasonable cause. The landlords examined Purushottam Kashinath Lathi, the original plaintiff at Exhibit-42, one Bapu Mahajan, the Electric Meter Reader,one Puna Teju having transport business near the suit premises, one Hanumantrao, the shop Inspector, one Ashok, the Income Tax Inspector and one Waman, the clerk in Municipal Council. The witness Bapu Mahajan produced the reading card Exhibit-50 on record to show that the suit premises was found to be locked. The witness Puna Teju examined as eye witness to depose that the premises were closed since January, 1990. The witness Hanmantrao, the Shop Inspector produced the licence at Exhibit-60 to show that the licence of the suit premises was not renewed after 6 1988. The witness Ashok, the Income Tax Inspector deposed that the tenants furnished the changed address and Waman, the clerk from the Municipal Council deposed at Exh.69, proved the revision register extracts. One of the defendant entered into the witness box and produced the renewal of certificate of registration at Exhibit-92, which was for a period for 1993 to 1997. The certificate of illness was also produced of Apolo Hospital, Madras to urge that during certain period, the defendant was ill and was admitted in the hospital. 4. The Trial Court considered the evidence on record and recorded the finding that the landlord has failed to prove that the defendants have not used the premises for a period more than six months. The Trial Court discussed the evidence, oral as well as documentary. The oral evidence of led by landlord was disbelieved. 5. The Appellate Court has recorded the finding that the tenant was given the shop for selling electric motors, pump-sets and allied goods and the 7 said business was done or being done from the suit premises till 1989. However, since January, 1990, the said business was stopped and the activities were started at 5, J.M.P. Market Jalgaon. The Appellate Court believed the evidence of Puna P.W.3, the eye witness, who deposed that the suit premises were continuously closed since 1989-90 and the shop was being run from another premises at J.M.P. Market. The Appellate Court further discussed the evidence of P.W. 4-the Shop Inspector, P.W.5-an employee from Income Tax Department and P.W.6-the Clerk from Municipal Council, Jalgaon and the evidence of Bapu Mahajan, the Assistant Accountant in M.S.E.B. The oral evidence of all the witnesses were believed. The Appellate Court discussed the documentary and oral evidence in paragraph nos.34 to 38 and further considered the findings recorded by the Trial Court in para no.39 and onwards to hold that the landlord has established the non-user of premises and the tenants could not successfully rebut the evidence brought on record by the landlord. 6. The Appellate Court in para No.42 of its 8 judgment summarized the finding at Sr.No.(i) to (vi) as under :- (i) that the plaintiff claims that since a particular point of time, there has been a cesser of user of the suit premises; and that at or about the same point of time, the defendants failed to renew the Registration Certificate of their establishment at the suit premises, (ii) at about the same date, they informed the Income-Tax Department about the change in their business address changing the same from the suit premises to another premises, (iii) that the Written Statement while denying the claim of non-user contains admissions that the premises was not being used due to the ill-health of the defendant no.2 for certain period and for about 8 to 10 days per month at the material time, (iv) the correspondence, which the defendants’ witness produced claiming that the same was received at the address of the suit premises, not only does not show so, but, on the contrary, shows that it was received at some other address, i.e. 27, Polan Peth, (v) the defendants’ witness only makes an assertion that the suit shop is being used as a godown, but does not state as to what are the goods that are being kept in the godown and how often, they are deposited in, or taken out,-leave alone, producing any documents to show any business or commercial activity from the suit premises, (vi) that, admittedly, the defendant No.1 commenced its business in a new place, i.e. Shop No.5, J.M.P. Market, in 1989. 9 7. The learned Counsel for the applicants- tenants challenged the said findings on the ground that same are perverse and not supported by any material available on record. So far as finding at Sr.No.(i) is concerned, it was urged that Exhibit-92, certificate of renewal for a period 1993-1997 has been ignored. It was further urged that so far as finding at sr.no.(ii) is concerned, it was only for the purposes of convenience that the address was changed for Income tax purpose and it can not be the evidence that the suit premises are not in use. It is further urged that the finding regarding the admission at sr.no.(iii) is not correct, as it was only denial and not admission and assuming that it was admission, the same was explained. So far as finding at sr.no.(iv) is concerned, it is urged that the tenants have produced correspondence on record to indicate that the premises were in use and lastly, so far as the finding at sr.no.(vi) is concerned, it was urged that the deeds of partnership are produced on record, which indicate that the separate business at shop no.5, J.M.P. Market was going on since November, 1979. In view of this, it 10 was urged that recording a findings which are perverse in nature, results in jurisdictional error and hence in revisional jurisdiction, this Court can set aside the order of the Appellate Court. 8. With the assistance of both the Counsels, I have gone through the entire evidence available on record and the findings recorded by Courts below. The findings recorded by the Trial Court are reversed by the Appellate Court. The Appellate Court considered all aspects and any error in appreciation of evidence would not be an error of jurisdiction. The points urged by the learned Counsel for the applicants, in my opinion, are not sufficient to completely dislodge the finding recorded by the Appellate Court. At the most, it may indicate that another view is possible in the matter. The learned Counsel for the applicant has relied upon the decision of the Apex Court reported in 2003(3) All M.R. 313 (S.C.) (Bharatlal Baranwal V/s Virendra Kumar Agrawal). On the basis of this judgment, it is urged that the question whether the tenant has changed the user of the premises is jurisdictional fact and open to the revisional court 11 to examine the said question. In the said case, it was held by the High Court that the Trial Court’s finding that the premises was let out for operating stitching machine, ruling machine, being findings of facts could not have been set aside by the revisional Court. The landlord’s revision was dismissed. Against which the S.L.P. was preferred. In this background, it was held that the change of user is jurisdictional fact. In the present case, the finding is recorded by the Appellate Court regarding non-user of the premises by the tenant and the points urged pertain to appreciation of evidence. Even if it is assumed that the points urged are not considered, in my view, even after considering the same, at the most, it can be said that there is possible view of the matter. Hence, the ratio of the said judgment would not apply to the present case. 9. The learned Counsel for the applicant lastly urged that the alleged non-user of the suit premises was from 1990 and the suit was filed in the year 1994. During this period, the landlord accepted the rent without any murmer, which amounts to waiver of the ground or abandonment. In support of this contentions, 12 he has relied upon the decision of Punjab High Court reported in A.I.R. (39) 1952 Punjab 82 (M/s New Garage Ltd., V/s Khuswant Singh). It was the case of breach of covenant regarding user of premises for the purpose other than the purpose for which the same were let out. Here in this case, the ground is about non-user of the premises and the waiver would not depend upon the single fact that the landlord has accepted the rent. The burden would be upon the tenants and they will have to establish by bringing on record the evidence to establish the waiver. There is no such evidence brought on record by the tenants. In view of this, the said Judgment is of no help to the applicants. 10. In the result, there is no substance in the instant Civil Revision Application and same is therefore dismissed. There shall be no order as to costs. (R. K. DESHPANDE ) JUDGE GAS/cra148.08