agk CRA494-10 (1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.494 OF 2010 Dinanath Shankarrao Kulkarni & Ors .. Applilcants versus Ajit Pandurang Rangnekar & Anr .. Respondents Mr.Rakesh Shah i/by M/s.Markand Gandhi & Co for the applicants. Mr.S.D.More for respondent No.2. CORAM : A.S.OKA, J. DATE : 13th September 2010. P.C.: . Heard learned counsel appearing for the applicants and the learned counsel appearing for the 2nd respondent. The applicants have taken an exception to the decree passed by both the Courts below under the provisions of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as the said Act) on the ground of non-user for a period of six months and more. The trial Court decreed the suit and Appellate Court has confirmed the decree. agk CRA494-10 (2) 2 The learned counsel appearing for the applicants has taken the Court through the impugned judgments and notes of evidence. He pointed out that the applicants have been dispossessed without following due process of law. He invited attention of the Court to the plea raised by the applicants regarding bar of limitation. He pointed out that after the demise of the original tenant, the widow of the original tenant shifted from the suit premises as it was impossible for her to stay alone in the suit premises. He submitted that even according to the finding recorded by the Appellate Court, the original tenant died on 15th February 1984. He submitted that the widow shifted immediately after the demise of the original tenant and therefore the suit filed by the respondents was barred by limitation as the same was filed in the year 1997. He submitted that evidence on this aspect was adduced by filing an additional affidavit in lieu of examination of chief. He pointed out that in the additional affidavit it was stated that after the demise of the father, the 1st appellant took the widow (his mother) to Andheri. He submitted that the said evidence substantiates the case of the applicants regarding bar of limitation which has not been appreciated by the Courts below and especially the Appellate Court. He submitted that even the death certificate of the widow shows that she died at Andheri. He submitted that even otherwise also there was a reasonable cause for not using the suit agk CRA494-10 (3) premises as the land lords have not allowed use of W.C. 3 I have considered the submissions. The plea that widow of the original tenant, immediately after the demise of the original tenant, in the year 1984 shifted to Andheri has not been raised in the written statement. The said plea comes only by way of additional affidavit in lieu of examination in chief filed by the 1st appellant. There was no factual foundation to the said plea in the written statement. The original tenant died on 15th February 1984 and the widow died on 24th December 1986. The suit was filed in the year 1997. Even assuming that after the demise of the tenant the widow shifted to Andheri, no specific case has been made out to prove that the widow shifted on particular day and that non-user started from a particular day. Considering the absence of plea in the written statement and the evidence on record , the suit is held to be filed within limitation. It is not possible to find fault with the said finding recorded by the Appellate Court. 4 As far as non-user for alleged sufficient cause is concerned, there is nothing on record to show that either the applicants or their predecessor made any grievance by writing a letter or by sending a notice regarding non- availability of any essential amenity. agk CRA494-10 (4) 5 Therefore, it is not possible to interfere with the concurrent findings recorded by the Courts below. 6 As regards grievance regarding illegal dispossession, the said issue cannot be gone into this revision application where challenge is to the decree of eviction concurrently passed by the Courts below. There is no merit in the revision application and the same is rejected. (A.S.OKA, J)