* 1 * CRA-273-2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 273 OF 2010 S.N. Shah ........ Applicant : Versus : B.D. Pande ........ Respondent * * * Mr. S.U. Pitre alongwith Mr. Mukesh Subramaniam and Mr. Mahesh Subramaniam i/by. Jeetendra H. Ramugade, Advocate for the applicant. Mr. P.K. Dhakephalkar, Senior Advocate i/by. Mr. Durgaprasad Sabnis, Advocate for the respondent. CORAM : SMT. R.P. SONDURBALDOTA, J. DATE : 5th AUGUST, 2010. P.C. :- 1. Rule, Returnable forthwith. By consent, the rule is taken up on the board for final hearing. 2. Heard learned counsel for the parties. 3. This Revision Application is preferred against the judgment and order dated 4th February, 2010 passed by the Division Bench of the Court of Small Causes, Bandra, Mumbai dismissing the appeal filed by the applicant to challenge the eviction decree in R.A.E. Suit No.327/708 of 2004. The respondent is the original * 2 * CRA-273-2010 plaintiff, the landlord. 4. The respondent had sought eviction of the applicant on the ground of non-user of the demised premises for more than six months prior to filing of the suit. The trial court dismissed the suit accepting the explanation given by the applicant for being away from the suit premises on account of death in the family. The appeal court by the impugned order, reversed the finding and held that the applicant had failed to state reasonable cause for non-user of the demises premises. 5. The suit was filed in August, 2004. The record of the proceedings, as also, the observations in the impugned order show that the demised premises were not being used by the applicant since the year 2002. The facts in support of this finding are : (i) the eviction notice sent by registered post by the respondent to the address of demised premises, returned with an endorsement not claimed", (ii) the suit summons was admittedly served upon “ the applicant on the address of Avdhoot Building where he is alleged to have been shifted, (iii) admittedly there is no telephone connection in the demised premises, (iv) admittedly the voters list * 3 * CRA-273-2010 for the period 2002-06 shows that the applicant alongwith his wife and son are residing in the Flat in Avdhoot building. (v) admittedly there is neither a Fridge nor Gas connection in the demised premises, (vi) there is practically no consumption of electricity at the demised premises. 6. The explanation offered by the applicant for non-user of the premises has been dismissed by the lower appellate court at paragraph-20 of it s decision. Though the applicant refers to as ’ many as six deaths during the period, August-2000 to September-2004, the deaths of only two persons i.e. the brother-in- law of the applicant on 20th April, 2004 and of his brother on 22nd May, 2004 are relevant. The observations of the Division Bench of the Small Causes Court on the deaths of these two persons at paragraph-20 reads as follows : 20. “ It would be thus seen that during the relevant period of six months before the date of suit, two deaths occurred i.e. Jayantilal who died on 20.4.2004. But according to the defendant himself, the said Jayantilal was brought to Mumbai from Jamnagar and he was admitted in the Hinduja Hospital, Mumbai on 20.1.2004 where he was there for 90 days and then died on 20.4.2004. Thus when Jayantilal was being medically * 4 * CRA-273-2010 treated in Mumbai itself, there was no reason for the defendant for non-user of the suit premises. The defendant in his cross- examination has admitted that his father-in-law was having four sons. There is no cogent evidence to show that there was no close relative to look after Jayantilal during his treatment either at Jamnagar or Mumbai. In so far as defendant s brother ’ Champaklal is concerned, he died at Jamnagar on 22.5.2004. According to the defendant, initially Champaklal was admitted in the Hospital at Jamnagar in March 2004 and subsequently he shifted to Rajkot where he was there for 27 days and again brought to Jamnagar but ultimately died on 22.5.2004 at Jamnagar. However, except the self serving statement of the defendant there is no supporting evidence to show that Champaklal was admitted in the Hospital at Rajkot. The defendant has admitted in his cross-examination that Champaklal was having children. There is no cogent evidence to show that it was defendant who was attending and looking after Champaklal.” 7. In my opinion, the Appellate Bench of the Small Causes Court in the above paragraph has correctly appreciated all the facts of the case and the impugned order does not require any interference. Hence, the Civil Revision Application is dismissed. [SMT. R.P. SONDURBALDOTA, J]