1 CRA500 OF2010.sxw vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 500 OF 2010. Khurshed R. Bilimoria .. Applicant -versus Asma Abdul Hussain Bagasrawala and ors .. Respondent. Mr.Bharat Joshi, for the Applicant. Mr.A. N. Nasikwala, for respondent No. lA, lB and 2. CORAM: R.C. CHAVAN, J. DATED: 18th August, 2010 P.C. 1. This Revision is preferred against the judgment of the Appellate Bench of the Small Causes Court, maintaining decree of applicant’s ejectment, passed by the learned Trial Judge of the Small Causes Court. 2. The respondent herein had filed suit for possession of the suit premises on the ground that the applicant had not been using the premises for the purpose for which it was let out for more than six months preceding the date of suit and that the applicant had acquired suitable alternate accommodation. The learned Trial Judge held that the applicant was liable to be evicted since she had acquired suitable alternate accommodation; but held in favour of 2 CRA500 OF2010.sxw the applicant on the ground of non user. 3. The Appellate Bench held that the applicant was liable to be evicted even on the ground of non user. The applicant had admitted in her evidence before the Trial Court that her uncle was residing in Dhan Building as a tenant. She was with her uncle and looking after him because of his ill health. She also stated that she was with her uncle at the time of his death. It was landlord’s case that the premises which had been possessed by her uncle were available to the applicant and thus she had acquired alternate suitable accommodation. She had admitted that the keys of the premises were with her but stated that there is another relative of her uncle by name Mrs.Gandhi and stated that others could ALSO have keys of the premises. The uncle died in the year l998 and in 2006 the applicant was still holding the keys of the premises. If she was not in the control of premises, she could have handed over the keys to the landlord or other relatives who might have claimed tenancy in respect of said uncle’s premises. 4. Therefore, both the Courts have rightly held that the applicant had acquired suitable alternate accommodation. The applicant had categorically stated in her cross examination that the area of premises of Dhan Building were larger than the suit premises and were also more suitable and comfortable to applicant. Merely because the applicant sets out a case of one 3 CRA500 OF2010.sxw Mrs.Gandhi being related to her deceased uncle, it does not mean that the applicant was not entitled to use premises of her uncle as tenant since she was residing with uncle at the time of his death. This concurrent finding of both the Courts below has to be upheld. 5. The learned counsel for the applicant submitted that the Courts below erred in not even discussing the documentary evidence tendered by the applicant i.e. bank pass book, electric consumption bills, rationing card, showing address of the applicant on the suit premises. These documents would not point to user to the premises but would only show that the address which she had given to the authorities is the same. The learned Judges of the Appellate Bench, therefore, rightly discarded the said evidence. The Appellate Bench has observed that the landlord has filed record showing consumption of energy as nil in respect of the premises. The landlord who stays on the ground floor took the bills from the bill distributor whenever he came. Still this does not explain as to why the consumption is shown as nil. Learned counsel for the applicant submits that applicant too had produced some bills which shows some consumption. This does not wash away nil consumption indicating non user. 6. The learned counsel for the applicant submitted that the applicant was the only close relative looking after her uncle in his old age and she was with him during last days. Therefore non user 4 CRA500 OF2010.sxw was for a reasonable cause. Till the uncle was alive, this may have been an excuse worth considering. But after his death, the applicant still held the keys of uncle’s premises and was possibly residing there. There is nothing to show that the consumption of electricity in uncle’s premises is nil or that some other relative is residing in uncle’s premises. 7. The bills of consumption produced by the landlord indicate that the premises were not used particularly since the applicant admits that premises left behind of her uncle are more spacious and suitable for her use. She also stated that she had disconnected cable connection of suit premises, may be for any reason. But it would be a factor indicative of her not in occupying the premises. The suit was filed in the year 1999. May be the applicant had justification to stay away from the premises, during the life time of her uncle in order to serve him. But after his death if she has been keeping away from the suit premises, there could no justification or reasonable cause for not using premises. In view of this, though the learned Trial Judge had held in favour of the applicant on the ground of non user, it cannot be said the appellate bench erred in holding that the landlord also proved non user. 8. In view of this, Civil Revision Application is dismissed. 9. At the request of learned counsel for the applicant the 5 CRA500 OF2010.sxw decree may not be put to execution for a period of 8 weeks, on the applicant’s furnishing, before the Trial Court usual undertaking within a period of two weeks from today. (R. C. CHAVAN, J.)