1 cra935.sxw ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CIVIL REVISION APPLICATION NO.935 OF 2010 Alisha Yusufshah Patel ...Applicant vs. Ebrahim Fakuruddin Patanwala & Anr. ...Respondents Ms Suchitra Patra for the applicant None for the respondent Nos.1 and 2 CORAM :A.S.OKA,J. DATE : NOVEMBER 24,2010 P.C.: 1 Heard the learned counsel for the applicant. The applicant is the defendant-tenant in respect of a residential premises. A suit was filed by the respondents-plaintiffs on 21 st February 1997 for possession on various grounds including the ground of non user for a period of six months immediately preceding the date of institution of the suit and the ground of acquisition of suitable residence. The courts below have passed a concurrent decree on the ground of non-user. 2 The learned counsel for the applicant states that the burden was on the respondents to prove the non user and no evidence has been adduced to prove the non user. She submitted that merely because electricity bills show minimum consumption, the Courts below cannot jump to the conclusion that there was a complete non-user. She submitted that the applicant is a senior citizen and has been residing in the suit premises. She submitted that there was a ration card of the year 1975 which has been 2 cra935.sxw produced on record, but the same has been ignored. She submitted that during the pendency of the revision application, the decree has been illegally executed. 3 I have given careful consideration to the submissions. The Courts below have made a reference to a letter dated 21 st February 1998 addressed by the applicant in which it is stated that both the sons of the applicant have undertaken employment abroad and they were using the suit premises as and when they come to Bombay. The letter written by the applicant was admitted in the evidence. On the basis of the said letter, a finding has been recorded that even according to the case of the applicant, the suit premises is being intermittently used by the sons of the applicant whenever they visit Bombay while serving abroad. 4 Electricity bills for the period from 26 th August 1996 to 23 rd October 1996 and 24 th February 1997 to 29 th April 1997 were produced on record. The electricity bills for the period from 21 st October 1997 to 16 th December 1997 were also produced on record. These bills reflect that same are in respect of the minimum amount payable towards electricity charges. Reliance is placed on the electricity bill dated 18th November 1996 for a period of two months prior to filing of the suit which shows consumption of only one unit. The Courts below and particularly the Appellate Court found that the applicant has not produced the electricity bills for the most crucial period of six months prior to institution of the suit. Therefore, adverse inference has been drawn. There were three ration cards produced on record, one is of June 1975 and other two were taken out after institution of the suit. 3 cra935.sxw 5 Apart from this, both the Courts below have considered the reports of the bailiff which show that five attempts were made by the bailiff to serve the suit summons to the applicant at the address of the suit premises but the applicant was not found. Ultimately, the service was effected by substituted service. No explanation was offered by the applicant as to why the summons could not be served at the address of the suit premises though so many attempts were made. 6 In view of the aforesaid findings, inference has been drawn by both the Courts below that non user for more than six months prior to the institution of the suit has been established. There is no reason to interfere with the said findings. 7 As far as execution of the decree is concerned, admittedly the decree was executed after the stay granted by the Appellate Court had expired. No case for interference is made out. Application is rejected. 8 It will be open for the applicant to take custody of the moveable articles in the suit premises within a period of six weeks from today. JUDGE