1 cra685.sxw ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CIVIL REVISION APPLICATION NO.685 OF 2009 Rail Child Sanstha ...Applicant vs. Shakuntala Narayan Joshi ...Respondent Mr.Kiran Joshi for the applicant Mr.S.V.Palsuledesai for the respondent CORAM :A.S.OKA,J. DATE :DECEMBER 8,2010 ORAL JUDGMENT : 1 On 15th April 2010 this Court issued notice for final disposal. 2 The revision applicant is the defendant and the respondent is the original plaintiff. A suit was filed for eviction by the respondent against the applicant under the provisions of the Bombay Rents, Hotel and Lodging House Rates (Control)Act, 1947 (hereinafter referred to as the said Act ) in respect of the premises more particularly described in paragraphs 1 and 2 of the plaint. 3 One of the allegations made in the plaint is that the applicant has shifted along with bag and baggage to Mahatma Gandhi Vidyalaya, Dombiwali (W), District Thane from 26th June 1998 and has started running classes in the said premises. The suit was contested by the applicant by filing a written statement. The trial court decreed the suit by holding that the applicant has acquired alternate premises to run the classes of primary 2 cra685.sxw students. The decree has been confirmed in appeal preferred by the applicant. 4 The submission of the learned counsel for the applicant is that admittedly the purpose of letting of the suit premises was not of residence but the suit premises was let out to the applicant for running the classes for primary students. Relying upon the decision of Division Bench of this Court in case of Bhavarlal Sukhlal Soni by L.Rs. Vs.Lakshminarayan Deo Public Trust [1994 Mh.L.J.843], the learned counsel submitted that the ground of acquisition of suitable residence under section 13 (1)(l) of the said Act was not available and therefore, the decree is illegal. 5 The learned counsel for the respondent submitted that apart from the ground of acquisition of suitable premises, by amending the plaint, a paragraph was added alleging non user of the suit premises and the said ground has been considered by the Appellate Court by holding that there is a non user. 6 I have considered the submissions. In paragraph 3 of the plaint, the respondent has stated that on the request made by the applicant, the suit premises was let out for running classes for primary students. The allegation in the paragraph 4A is that the applicant has now acquired suitable premises in the form of premises in a school for conducting the classes. On the face of it, clause (l) of section 13 (1) will not apply as there is no allegation of acquisition of suitable residence. 7 The Division Bench in case of Bhavarlal Sukhlal Soni (supra) has held that the ground under section 13(1) (l) of the said Act is available only when premises are let 3 cra685.sxw out for the purposes of residence. Hence, on plain reading of the plaint, the decree on the ground incorporated under section 13(1)(l) of the said Act could not have been passed. 8 As far as submission based on non user is concerned, there is no issue framed by the trial Court on the alleged ground of non user and there is no decree passed by the trial Court on the said ground. For passing a decree under section 13(1) (k), the requirement is that premises should not be used for a continuous period of six months immediately prior to date of institution of the suit. In the present case, the suit was filed in the year 1995 and the non user alleged is from June 1998. Therefore, in any event, in the present suit, a decree could not have been passed on the ground of non user. Hence, the revision application must succeed and the decree for eviction will have to be set aside. 9 Hence, I pass the following order : . Rule is made absolute in terms of prayer clause (a). There will be no order as to costs. JUDGE