1 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.5217 OF 1993 Madhav Baburao Kathilkute ...Petitioner vs. Bhaskar Dattatraya Shendge ...Respondent Mr.Kiran Bhagalia for the petitioner Mr.R.S.Apte for the respondent CORAM :A.S.OKA,J. DATE : APRIL 20, 2010 JUDGMENT : 1 Heard the learned counsel for the petitioner and the learned counsel for the respondent. The Petitioner is the original plaintiff and the respondent is the original defendant. 2 The petitioner filed a suit for eviction against the respondent. The suit premises is one room on the first floor admeasuring 14 X 22 in a house situated at Budhwar Peth, at Pune more particularly described in the plaint. According to the case made out by the petitioner, the suit premises was let out to the respondent on 14th March 1980 for the purpose of business. It is alleged that the respondent is not using the premises for the purpose for which the same was let out continuously for more than one year without any sufficient or just cause. It is alleged that the suit premises have been kept locked for a period of more than one year. Apart from the ground of non user under the Bombay Rents,Hotel and Lodging House Rates (Control) Act,1947 (hereinafter referred to as the said Act), the petitioner prayed for a decree of eviction on the ground of causing damage to the suit premises by carrying out construction 2 of permanent nature and also on the ground of bona fide and reasonable requirement. The respondent filed a written statement denying the averments made in the plaint. Specific case was made out by the respondent was that he has been carrying on business of ready made clothes garments in the suit premises from March 1980. The trial Court decreed the suit only on the ground of non user. An appeal was preferred by the respondent. The District Judge has interfered and set aside the decree. 3 The learned counsel for the petitioner has taken me thorough the evidence and findings recorded by the Courts below. The learned counsel for the petitioner submitted that specific case of the respondent was that he was using the suit premises for sewing and preparing ready made garments. He submitted that the respondent admitted in the cross examination that the said case made out by him in the written statement was incorrect. He submitted that the electricity bills placed on record show the minimum use of the electricity. She stated that admittedly the respondent was not paying professional tax. She submitted that the admitted position is that the respondent had not engaged service of any employees. She pointed out that no document has been produced save and except the Shop Act licence to show that the business was carried out in the suit premises immediately prior to the institution of the suit. She submitted that no customer has been examined by the respondent. She pointed out that the respondent himself has produced on record a letter received by a customer from Mumbai which is not proved. She submitted that though the respondent produced photographs of the shop premises in the same building, the photographs showing user of the suit premises have not been produced. She submitted that the 3 Appellate Court has completely misread the evidence and especially the pleadings. She submitted that the impugned Judgment and order is perverse. 4 The learned senior counsel for the respondent submitted that the burden was on the petitioner to prove the non user. He pointed out that the petitioner purchased the suit premises on 1st July 1983 and the suit was filed immediately thereafter. He submitted that the petitioner has no personal knowledge of non user at least up to 1st July 1983. He submitted that there was no evidence adduced by the petitioner to prove the non user. He pointed out that the licence under the Shop Act was produced by the respondent to prove the user of the premises for the purpose of business. He submitted that the case of the petitioner was of non-user by the respondent which has not been substantiated. He pointed out that the respondent has examined other witnesses to show that the premises were used for the purpose of sewing the ready made garment as mentioned in the written statement. The learned senior counsel pointed out that even a notice of attachment was served to the petitioner at the address of the suit premises. He admitted that the evidence of the other independent witnesses examined by the respondent completely defeats the theory of complete non user propounded by the respondent. He submitted that the Appellate Court has recorded a finding of fact based on appreciation of documentary evidence on record. He urged that as there is no perversity in the finding of fact recorded by the Appellate Court, no interference is called for in writ jurisdiction. 5 I have carefully considered the submissions. The findings recorded by the trial Court can be summarized as under : 4 a) In the evidence, the respondent came out with a case that he is using the suit premises for the purpose of tailoring business. He admitted in the cross examination that the case made out in the written statement that the suit premises is being used for sewing and preparing the ready made garments was incorrect. b) As per the case pleaded by the respondent himself, he was under an obligation to prove that he was carrying on tailoring business. To prove the said fact the respondent produced a letter received from the customer but the said customer has not been examined. No document such as measurement book has been produced to show that he was carrying on tailoring business. c) the respondent did not pay professional tax. 6 The Appellate Court while interfering with the finding recorded by the trial Court held that there is no specific pleading that the respondent is not using the suit premises for the purpose of business immediately preceding date of institution of suit without reasonable cause. The Appellate Court held that Electricity bills produced on record show the consumption of the electricity. It was held that the petitioner has not discharged the burden to prove the non user of the suit premises and that the evidence based on inconsistent version of the witnesses examined by the respondent cannot be accepted. 5 7 The first ground on which the Appellate Court has held against the petitioner is his failure to plead ground in terms of section 13 (1)(k) of the said Act. Paragraph 3 of the plaint reads thus : [3]The premises were let out to the defendant on 14.3.80 for the purpose of business only. But the defendant is not using the premises for the purpose for which they were let out, continuously for more than one year without any just and sufficient reasons. The defendant has locked the premises since last more than one year continuously. (Underline supplied) In paragraph 4 of the plaint, the petitioner has stated as under : (4] As the premises are not used by the defendant, the premises are infested with the rats and mice. The rats and mice have damaged the property of the plaintiff considerably. It will be interesting to note what is pleaded in paragraph 4 of the written statement. Relevant part of which reads thus : 4 It is a fact that the defendant has taken the suit premises on rent for his business. But the plaintiff s allegations in paragraph 3 of the plaint that the defendant is not using the suit premises for the purpose for which they are taken on rent continuously for more than one year without any just and sufficient cause 6 and that the defendant has locked the suit premises since last more than one year continuously, are false and the defendant categorically denies the same. The defendant has been doing and carrying on his business of sewing and preparing ready made clothes in the suit premises continuously from March 1980 to this date without any break or closure. The defendant had never locked the suit premises as alleged... (underline supplied) Thus, there is a specific pleading that the respondent is not using the suit premises for the purpose for which the same was let out. 8 It is necessary to refer clause (k) of section 13 (1) which reads thus : (k) that the premises have not been used without reasonable cause for the purpose for which they were let for a continuous period of six months immediately preceding the date of the suit; or It is apparent that there was a pleading in the plaint which was in conformity with clause (k). Clause (k) refers to non-user without reasonable cause. But the petitioner has pleaded that there is continuous non user without there being just and sufficient reasons. Thus, the Appellate Court erroneously held that there was no specific pleading in terms of the said section. 9 It is true that initially the burden was always on the petitioner. However, as stated earlier, in the 7 paragraph 4, it was the respondent who came out with specific case that he has been doing and carrying on business of sewing and preparing the ready made garments in the suit premises continuously from March 1980. In the examination-in-chief, the respondent stated that the premises have been taken by him on rent for tailoring shop and one person was assisting him. In the cross examination, and in particular in paragraph 10, the respondent has stated thus. 10.There is no servant in my shop. I am not paying professional tax. I have not paid profession tax from the beginning till today. I have not paid the profession tax regarding the business carried in the suit premises. It is correct that the payment of professional tax is compulsory. I deny that I have not paid profession tax at any time as I am not carrying any business in the suit premises. I deny that I carry the ready garment business in the suit premises. The averments made in my W.S. In para 4 the deft. Has been doing and carrying on his business of sewing and preparing ready made cloths in the suit premises is incorrect. There is no document except the shop act licence to show that I carry the tailoring. The letters received from my customers. I am not examining any of my customer... To the allegation that there is a complete non user for a period of one year, the defence specifically pleaded was that the respondent was using the suit premises for business of sewing and preparing ready made garments. The respondent himself has stated in the cross 8 examination that the said contention in the written statement was incorrect. The respondent made out a new case in the evidence that he was carrying on the tailoring business. 10 In the context of the aforesaid admission by the respondent, it is impossible to say that the petitioner did not discharge the burden especially when the defence specifically raised by the respondent in the pleadings was that he was carrying on business of sewing and preparing the ready made cloths and that the said statement is admitted to be incorrect by the respondent himself. In fact, the case of non-user was clearly established. 11 However, the Appellate Court has considered the case of the respondent that he was carrying on the tailoring business. As stated earlier, admittedly, the respondent was not paying professional taxes. Admittedly he has not produced any measurement book/bill book showing that tailoring business was being carried out. He has not examined any customer. From a customer from Bombay, a letter was allegedly received by him. However, the customer has not been examined to prove the letter. Reliance has been placed on electricity bills which are referred to in paragraph 8 of the Judgment of the Appellate Court. Bill for the period from 7th January 1984 to 7th March 1984 is in the sum of Rs.23.00. The bill for the period from 7th November 1983 to 7th January 1984 is of Rs.22.78. The bill for the period from 7th July 1983 to 7th September 1983 is of Rs.9.96. The Appellate Court has noted that under the two bills at Exhibit-49 and Exhibit-50, the electricity consumption is only of 30 units i.e. 15 units per month approximately. The electricity consumed as per the bill 9 at Exhibit-48 which for a period of two months was only of 20 units. The electricity consumed for two bills at Exhibit-51 and 52 which were for a period of two months each was of 30 units. Taking the finding of the Appellate Court based on the said bills as it is, the said bills in fact support the case of the petitioner as the same show that the electricity consumed was minimum. 12 It must be stated here that apart from examining himself, the petitioner examined the professional tax Inspector to prove that the business of Shendge Textiles was carried on in another property bearing house no.865, Budhwar Peth, Pune. 13 The Appellate Court has completely misread the pleadings. The Appellate Court has completely glossed over the effect of admission on the part of the respondent in paragraph 10 of the cross examination. 14 The learned senior counsel for the respondent invited my attention to the evidence of other witnesses examined by the respondent in support of his contention that non user has not been proved. Though the evidence of said witnesses is not been considered specifically by the Appellate Court, I have perused the said evidence. The witness Surajmal examined by the respondent deposed that the respondent is carrying on tailoring business in the suit premises. The third witness Babulal Solanki has not stated anything about the user of the suit premises by the respondent. The 4th witness examined by the respondent stated that the respondent had a tailoring shop on the first floor of the building and the respondent came to the suit premises in the year 1980. The said witness admitted that business of Shendge Textiles is carried on opposite the suit 10 property. Perusal of the evidence of the 5th witness examined by the respondent shows that he has merely stated that respondent has tailoring shop and he gets the garments of his own and of his children stitched from the respondent. The witness admitted the fact that a litigation between his father and the petitioner was pending. Therefore, the evidence of the said witnesses is not sufficient to prove the case of the respondent in absence of any documentary evidence. 15 In the circumstances, the Appellate Court has committed an error by not only ignoring the specific averments made in the plaint but by ignoring the important admission of the respondent in paragraph 10 of the written statement. The entire approach of the Appellate Court is erroneous and perverse. Therefore, the petition must succeed. 16 Hence, I pass the following order : i) Impugned Judgment and Decree of the Appellate Court is quashed and set aside and the Judgment and decree passed by the trial court is restored. ii)Rule is made absolute in above terms with no order as to costs. . On the prayer made by the learned senior counsel for the respondent, it is directed that the decree for possession shall not be executed for a period of three months from today subject to condition that the respondent will not create any third party interests and will not part with possession thereof. JUDGE