1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8230 OF 2008 M/s.Brimco Plastic Machinery Pvt.Ltd. ..Petitioner. V/s. Shri Bhaladutta B. Pande. ..Respondent. Mr.Prasad S. Dani for petitioner. Mr.P.K.Dhakephalkar, Sr.Counsel with D.S.Sabnis for Respondent. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : FEBRUARY 9, 2009. DATE : FEBRUARY 9, 2009. DATE : FEBRUARY 9, 2009. P.C. : P.C. : P.C. : 1. Heard Counsel for the parties. 2. The only argument canvassed before this Court is that the landlord has failed to plead and prove the fact that the non-user of the suit premises continuously for a period of 6 months immediately preceding filing of suit was without any reasonable cause. According to the Petitioner, the Trial Court has rightly proceeded to examine the matter on the finding that the landlord failed to make out the later factum which was necessary for decreeing the suit for eviction. The argument is completely misplaced. The cause of action for instituting the 2 suit has become available to the landlord on the happening of that is continuous non-user of the suit premises for a period of six months preceding the institution of the suit. That fact has to be established by the landlord and nothing more. The fact that the premises could not be used because of reasonable cause is the defence available to the landlord, which the tenant not only has to plead but prove. 3. To get over this position, Counsel for the Petitioner would rely on the decision of our Courts reported in 1981 Mah. L.J. 437 1981 Mah. L.J. 437 1981 Mah. L.J. 437 in the case of C.R.Shaikh V/s.Lilabai D. Rohida and another. Shaikh V/s.Lilabai D. Rohida and another. Shaikh V/s.Lilabai D. Rohida and another. Another decision reported in 1991 Mah. R. C.J 1991 Mah. R. C.J 1991 Mah. R. C.J in the case of Shri Cyrus Behram Irani and Anr.Vs. Shri Shri Cyrus Behram Irani and Anr.Vs. Shri Shri Cyrus Behram Irani and Anr.Vs. Shri Parvis Burjorji Engineer. Parvis Burjorji Engineer. Parvis Burjorji Engineer. Reliance was placed on the observations made at different places, which in my opinion, is reading the Judgment out of context. The law as expounded in the said Judgment is that the landlord has to plead and prove the fact that the suit premises were not used for continuously 6 months preceding to institution of suit. 4. The second aspect which needs to be addressed in such a suit is in fact the defence available to 3 the tenant. In the present case, the Petitioner has no where pleaded the factum of reasonable cause for non-user of the suit premises. A general statement has been made in paragraph 9(a) of the Written Statement that ground of eviction was invoked by the respondent/landlord was incorrect and not as per the provisions of law. That is not enough. The tenant has to plead and prove that there was sufficient cause or reasonable cause for non-user of the premises during the relevant period. Hence no case is made out for interference in exercise of writ jurisdiction. Dismissed. 5. At this stage, Counsel for the Petitioner submits that the Petitioner may consider of taking up the matter in appeal for which interim protection given to the Petitioner be continued for some reasonable time. That indulgence is shown on Petitioner and/or authorised officer of the Petitioner files usual undertaking and deposits all the outstanding dues within two weeks from today, failing which it will be open to the Respondent/landlord to proceed with the execution of the decree. However, if the above condition is complied in time, the decree shall remain in abeyance for a period of six months from today. 4 (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)