agk WP5306-94 (1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5306 OF 1994 Iqbal Mohammed Hussain Pathan .. Petitioner versus Sayyed Ahmed Sayyed Jainal Abedin & Ors .. Respondents Mr.D.S.Sawant for the petitioner. CORAM : A.S.OKA, J. DATE : 13th September 2010. JUDGMENT: . The petitioner who is the 1st defendant has challenged the decree for possession passed by the Courts below in a suit filed by the 1st to 3rd respondents. The suit relates to a residential premises admeasuring 8 ft x 10 ft at Panvel. The 2nd defendant is brother in law of the petitioner. The 3rd defendant is one of the co-owners of the property. 2 The allegation in the plaint is that the petitioner was working as a truck driver. He was not visiting the suit premises at Panvel and that he has parted with the possession of the suit premises in favour of the 2nd defendant who agk WP5306-94 (2) was his brother- in- law. It is stated that the petitioner has been residing for a period of seven years at Solapur. It is alleged that the 2nd defendant without permission of the plaintiffs has removed the front door and window of the suit premises and have replaced the same by new one. It is alleged that a wall has been constructed in the suit premises without permission of the plaintiffs. The bona fide need of the plaintiffs was also pleaded. It is in the plaint that as the 2nd defendant was in possession of the suit premises, to avoid any objection by him, he has been impleaded as a party defendant to the suit. The petitioner contested the suit by filing the written statement. The written statement is of denials. 3 The trial Court decreed the suit for possession. The decree was passed on the ground of arrears of rent, unauthorised subletting and non- user under section 13(1)(k) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as the said Act). An appeal was preferred by the petitioner before the District Court. Though the decree for possession has been confirmed, the Appellate Court held that grounds of permanent construction and subletting have not been proved. Similarly, ground of bona fide requirement has not been proved. The finding of the Appellate Court is that ground of non-user for a period of six months has agk WP5306-94 (3) been established. Thus, the decree passed by the trial Court was confirmed only on the ground of no-user. 4 The learned counsel appearing for the petitioner invited attention of the Court to clause (k) of sub-section 1 of section 13 and submitted that the ground has to be specifically pleaded by contending that the suit premises have not been used without reasonable cause for the purpose for which the same was let for a continuous period of six months immediately preceding date of the suit. He submitted that apart from the fact that there is no specific pleading on this aspect, the very case of the plaintiffs was that the petitioner’s brother- in- law i.e 2nd defendant was actually occupying the suit premises even prior to the date of institution of the suit. He submitted that the ground of subletting accepted by the trial Court has not been upheld by the Appellate Court. He submitted that thus on their own showing the plaintiffs have not proved non-user on the date of institution of the suit for a period of six months preceding the date of institution of the suit. He submitted that in the circumstances, the finding on the ground of section 13(1)(k) is completely illegal. None appears for the respondent Nos.1 to 3. 5 I have carefully considered the submissions. I have perused the agk WP5306-94 (4) plaint. In the plaint it is stated that the petitioner is employed as a truck driver and on account of his employment he was not visiting Panvel where the suit premises are situated and he has allowed the 2nd defendant to use and occupy the suit premises. It is alleged that the petitioner has been residing at Solapur for a period of seven years. However, in the plaint there is no pleading that the suit premises have not been used without reasonable cause for the purpose for which the same was let. Perusal of the finding recorded by the Appellate Court shows that there is no clear finding that the suit premises have not been used without reasonable cause. It was necessary for the plaintiffs to plead that the non-user is without any reasonable cause. In the plaint there is no such assertion and it is stated that due to employment of the petitioner he was unable to visit Panvel and that is how he has transferred the suit premises to the 2nd defendant. Though the trial Court accepted the plea of sub-tenancy, the Appellate Court has set aside the decree. 6 The basic ingredient of the ground of eviction under clause (k) of sub- section (1) of Section 13 has not been made out in the plaint. Apart from that only the finding recorded by the Appellate Court on the aspect of non-user is that it was for the petitioner to justify his absence from the suit premises. agk WP5306-94 (5) There is no finding that there was non-user without any reasonable cause. Hence, the decree cannot be sustained and the same will have to be quashed and set aside. Accordingly, I pass the following order: : O R D E R : (a) Rule is made absolute in terms of prayer clause (a). (b) Regular Civil Suit No.101 of 1989 stands dismissed. (c) There will be no orders as to costs. (A.S.OKA, J)