1 55 wp.4025.11 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION WRIT PETITION NO. 4025 OF 2011 Gangadhar Chintaman Bedekar. ... Petitioner Versus Chandrakant Bapurao Deshpande. ... Respondent ----- Ms Manasi H. Marathe i/b Mrs. Neha Palshikar Bhide for the Petitioner. Mr. Avinash B. Avhad for the Respondent. ----- CORAM : A.S.OKA, J. DATE : 16 th December, 2011. P.C. 1 Heard the learned counsel appearing for the Petitioner. 2 By this petition under Article 227 of the Constitution of India, the Petitioner has challenged the decree of eviction passed against him by the trial Court which has been confirmed in the appeal. 3 The decree has been passed on the ground of non-user for a period of six months prior to the date of the institution of the suit which is a ground for eviction provided under Section 16(1)(n) of the 2 55 wp.4025.11 Maharashtra Rent Control Act, 1999. The first submission of the learned counsel appearing for the Petitioner is that in the written statement, the Petitioner denied that there was a non-user and in fact, his contention was that intermittently he was residing with his son considering the fact that his present age is about 97 years. The learned counsel submitted that continuous non-user for a period of six months prior to the date of the institution of the suit was required to be established and the fact that the suit notice and the suit summons were served to the Applicant at the address of his son is not sufficient to prove the non-user. The learned counsel submitted that the finding recorded by the Appellate Court in paragraph No.13 of the judgment is erroneous. The learned counsel submitted that only because there was a fire in the suit premises, it is no ground to come to the conclusion that the Petitioner has not taken any steps to protect the suit premises. Her submission is that there is no legal evidence on record to prove the non-user for six months and in fact, the Appellate Court has considered an electricity bill issued for a period subsequent 3 55 wp.4025.11 to the date of the institution of the suit. 4 I have given careful consideration to the submissions. I have perused the impugned judgments. The Petitioner did not step into witness box to make out a case that the alleged non-user was for sufficient cause. There are three circumstances taken into consideration by the Appellate Court. The first circumstance is that the death certificate of the wife of the Petitioner shows the permanent address of the deceased of the place of the son of the Petitioner at Model Colony, Pune. The suit notice which preceded filing of the suit was served at the address of the Model Colony, Pune. Moreover, the suit summons was also served at the same address. These are the three circumstances taken into consideration by the Appellate Court to draw an inference that the Petitioner was not using the suit premises for a period of more than six months prior to the institution of the suit. As against this, no evidence was adduced by the Petitioner to show either the user of the suit premises during the relevant period or that there was sufficient cause which prevented him from residing in the 4 55 wp.4025.11 suit premises. At this stage, the learned counsel appearing for the Applicant submitted that even assuming that the Petitioner did not enter into witness box, it was the duty of the Courts below to examine the evidence adduced by the Respondent to satisfy itself that the ground of non-user was established. This submission has no merit. The findings of the Courts below and especially the Appellate Court are based on the aforesaid documentary evidence on record. 5 Hence, no case for interference is made out in the jurisdiction of this Court under Article 227 of the Constitution of India. The petition is rejected. 6 On the prayer made by the learned counsel appearing for the Petition, the decree for possession shall not be executed for a period of three months from today. [ A.S.OKA, J ]