1cra-398-08 ladda IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION No. 398 OF 2008 Shri Gajanan Tukaram Bhalekar. .. Petitioner. Orig. Defendant. vs. Shri Laxman Malhari Jagtap deceased through hiers and legal representatives ..Respondents. Mr R.A.Thorat (with P.B.Gujar) , Advocate for the petitioner. Mr Tejas Dande for the Respondents Nos. 1C and 1D. CORAM:A.R.JOSHI,J DATED : 25TH SEPTEMBER,2009 P.C.:- 1. Rule, made returnable forthwith. 2. Heard rival submissions for some time. It is the Civil Revision Application filed by the original defendant no.1 challenging the impugned judgment and decree passed in Appeal No. 217/1997 by the District Judge, Pune (the First Appellate Court). By the said judgment in 2cra-398-08 appeal, decree for possession passed in favour of the original plaintiff – respondent under Section 13 (1)(k) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 ( for short the Bombay Rent Act) in Civil Suit No. 308/95 was confirmed. Said earlier judgment and decree of the Trial Court was passed by the VI Joint Additional. Small Causes Court, Pune on 28.11.96 partly allowing the suit of the plaintiff and passing the decree of eviction under Section 13(1)(k) of the Bombay Rent Act for non user of the premises for more than six months prior to the institution of the suit without reasonable cause. 3. The trial Court and the first Appellate Court had given the concurrent finding on the factual aspect as to the present petitioner- defendant not using the suit premises for the purpose for which it was let out for his business as an Architect. Inspite of such concurrent finding on facts, it is tried to argue before this Court on behalf of the petitioner- defendant that there was no specific pleading of the plaintiff that the premises was not being continuously used by the defendant and that there was no reasonable cause for the defendant not to use such premises. 4. This Court has gone through the reasoning given by both the earlier Courts and also gone through the pleadings of the parties. 3cra-398-08 According to the plaintiff, the notice for eviction was given on 6th January, 1995 and the suit was filed on 6.5.1995. Whereas, admittedly according to the petitioner-defendant he could not use the said premises for one year during the year 1995. However, in his written statement he came forward with a case that due to his illness during the year 1993-94 he could not use the premises. Such variance has been emphasized by the Trial Court and the first Appellate Court. Moreover, there is no reasonable cause shown for non user of the premises for the purpose it was let out to the defendant. He did not examine the doctor who had given him the medical certificate for ailment and such certificate was obtained in October 1996 much after the recording of the evidence of the plaintiff was over. 5. By pointing out the issue no.2 framed by the Trial Court it is submitted that there is no mention as to continue non user of the premises whether established by the plaintiff. In support of this submission ratio of the following authorities was taken shelter of. 1) C.R.Shaikh v. Lilabai 1981 Mh.L.M.437 4cra-398-08 2) Achut v. Sadashiv 1973 Mh.L.J.153 3) Mrs Saharabegum v.Abdul Ali 1991(2) Bom.C.R.455 6. In the opinion of this Court, considering the evidence and the averments in the plaint and considering the evidence of the defendant it cannot be said that the provisions of Section 13 (1) (k) of the Bombay Rent Act, are not attracted. On the contrary, when there is a pleading of the plaintiff as to non user of the premises since one year prior to the filing of the suit and the business as to Architect has been stopped by the defendant, it was incumbent upon the defendant to come with the evidence that there was reasonable cause for him not to use the said premises for one year prior to the filing of the suit. This is more so, when admittedly such non user has been accepted by the defendant but for his alleged reason of ill health which he failed to establish. 7. All the same, in view of the concurrent finding of both the Courts below on the main issue as to applicability of Section 13 (1) (k) of the Bombay Rent Act, it is not warranted to interfere in the said decision within the revisional jurisdiction of this Court, hence the present Civil Revision Application is disposed of with the following 5cra-398-08 order. 8. Civil Revision Application is dismissed. All the interim orders, if any, shall stand vacated. (A.R.JOSHI,J)