:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE CIVIL REVISION APPLICATION NO.471 OF 2007 CIVIL REVISION APPLICATION NO.471 OF 2007 CIVIL REVISION APPLICATION NO.471 OF 2007 Jitendra Ratibhai Salot ...Applicant. v. Smt. Nirmala Suryakant Shete & Anr. ...Respondents. Mr.V.A.Thorat Sr. Counsel a/w R.A.Thorat and Ms.Prachi Tatke , advs. for the Applicant. Mr.A.K.Abhyankar Sr.Counsel a/w Shri K.A.Sampat , adv. for the Respondent Nos.1 and 2. CORAM: CORAM: CORAM: J.H.BHATIA,J. J.H.BHATIA,J. J.H.BHATIA,J. DATE: 28th February, 2008. DATE: 28th February, 2008. DATE: 28th February, 2008. P.C. P.C. P.C. 1. Heard the learned counsel for the Parties. 2. Respondents before this Court are the original plaintiffs and the landlords about the suit flat no.2 on 2nd floor of the building known as ’Nirmal’ situated on plot no.66 Presidency Co-operative Housing Society, Vile Parle (West), Mumbai. The present applicant, who is original defendant was inducted as tenant in the suit premises. The plaintiffs filed R.A.E. 516/1313-95 seeking eviction of the defendants on three grounds, firstly, reasonable and bonafide requirement of the plaintiffs, secondly the defendant had acquired alternate accommodation and thirdly for a period of 10 months prior to filing of the suit in December, 1995, the defendant was not using the suit flat and it was :2: kept locked. It was specifically contended that the defendant had constructed a flat on plot no.18 in Navyug Co-operative Housing Society Limited and had thus, acquired alternate accommodation and had shifted to the said flat situated on plot no.18. The defendant denied all these allegations. At the outset, it may be stated that claim on the ground of reasonable and bonafide requirement was not pressed and the parties went to the trial only on remaining two grounds. The trial Court rejected the contention of the plaintiff that the defendant was not using the suit premises for a period of ten months prior to filing of the suit. The trial Court also rejected the contention of the plaintiff that the defendant had acquired alternate accommodation. The trial Court accepted the contention of the defendant that the said flat on plot no.18 in Navyug Society was acquired by Vijay Sabre Safety Limited on leave and licence basis and part of it was being used as guest house of the company and part of it was occupied by son of the defendant in capacity of the executive director of that company as he was permitted to occupy the same by the company. In view of these findings, the suit for eviction came to be dismissed. The plaintiff preferred Appeal No.230 of 2006. Appeal was allowed and the decree for eviction and possession came to be passed. The defendant was given time to vacate the premises and to hand over the possession of the suit premises to the plaintiffs on or before 30th September, 2007. The :3: defendant has challenged the said decree passed by the Appellate Court. 3. The learned Senior Counsel for the defendant/revision applicant has taken me through the pleadings and evidence led by the parties. Even though in the written statement as well as in his examination-in-chief, the defendant denied to have acquired any alternate accommodation and even though his contention was that a flat in the building on plot no.18 was taken by Vijay Sabre Safety Limited on leave and licence basis, in the cross-examination he had admitted that on the plot no.18, he himself and his brother Pradip had constructed a building consisting of four flats. One flat in that building was occupied by his brother, two other flats are let out to other parties by the defendant and one flat is given by the defendant on leave and licence basis to Vijay Sabre Safety Limited. Infact that Vijay Sabre Safety Limited itself appears to be a family company fully controlled by him. He himself is the Managing Director of that company and his son is the Executive Director. Even though it may be true that a part of the flat let out to Vijay Sabre Safety Limited is used as guest house, the fact remains that the defendant and his brother constructed a building on plot no.18 and it is also the fact that his brother has occupied one flat and remaining three flats have been let out by the defendant and as stated above one of them :4: is let out to his own company or the company, which is atleast controlled by himself and his family members and two others are let out to others. This show that the defendant had acquired sufficient alternate accommodation. Thus, plaintiffs have duly proved that the defendant had acquired alternate accommodation in the form of flats on plot no.18. It is difficult to accept the contention of the defendant that because those flats were let out to some others , they are not available to him for self use and occupation. 4. About the non-user of the suit premises, the learned senior counsel for the defendant has pointed out certain documents to show that the gas connection of the defendant continues on the same address of the suit premises and the gas cylinders have been supplied on the basis of that connection. In my considered opinion that itself is not sufficient evidence to show that the defendant was actually using the suit premises. Record reveals that in the year 2002, Commissioner was appointed for inspection of the suit premises and the commissioner’s report reveals that some articles of the defendant were lying in the house. There was nothing to show that the defendant was actually living there. There is evidence on record to show that for a long period of more than ten months, electricity bills for the suit premises were not paid. Taking into consideration this and oral evidence produced by the :5: plaintiffs, the learned Appellate Court came to conclusion that the defendant was not actually using the suit premises for more than six months prior to filing of the suit. 5. Taking into consideration the evidence on record, I find no illegality, irregularity or error in the impugned judgment passed by the Appellate Court. 6. In the result, Revision Application stands dismissed. 7. At this stage the learned counsel for the defendant/revision applicant makes a request that the decree may not be executed for a further period of six weeks to which Mr.Abhyankar the learned senior counsel for the respondent has no objection but he contends that the defendant has not paid rent of the suit premises since 1995 and he should be directed to clear the dues. The decree for eviction shall not be executed for a period of six weeks from this day subject to the defendant/revision applicant filing undertaking before this Court within two weeks that he shall vacate the premises and shall put the plaintiffs in peaceful possession thereof within stipulated period, unless he gets any stay or relief from the Supreme Court. He shall not create any third party interest in the property and shall clear all the arrears of rent within :6: three weeks from this day. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)