( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 1991 OF 1991 Vimalabai w/o Narayanrao Wani, R/o Navipeth, Jalgaon, Dist. Jalgaon. PETITIONER VERSUS 1. Onkarlal Deepchand Banawat, Medical Practitioner, R/o Opp. G.S. High School, Zilla Peth, Jalgaon, Dist. Jalgaon. 2. Jayajirao Sheshrao Mulik, Medical Practitioner, R/o Near State Bank of India, Jalgaon, Dist. Jalgaon. RESPONDENTS ..... Mr. R.N. Dhorde, advocate for the petitioner. Mr. P.R. Patil, advocate for the respondent No.1. None for the respondent No. 2. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 8th February, 2010] ORAL JUDGEMENT : 1. By this petition, the petitioner challenges judgement and order rendered by learned District Judge ( 2 ) in an appeal (R.C.A. No. 302/1982) whereby and whereunder eviction decree granted by the trial Court came to be reversed. 2. Indisputably, the petitioner is landlady of house premises which were let out to the respondent No.1 in or about 1952. It is an admitted fact that the respondent No. 1 started his clinic in the suit premises. He is a Paediatrician. It is also an admitted fact that the respondent No. 2 is Ophthalmologist and used to run a clinic in premises situated in a building opposite to the suit premises, at a short distance. 3. The petitioner filed suit for ejectment alleging that the respondent No. 1 had kept the premises unused for period of six (6) months before filing of the suit. The petitioner further asserted that the respondent No. 1 was willful defaulter due to non- payment of the agreed rent regularly. The agreed rent was Rs. 66.67 p.m. and was not being paid by him at the ( 3 ) end of each month. The petitioner further asserted that the respondent No. 1 had given the suit tenament to the respondent No. 2 by sub-letting the same without her consent. So, she was entitled to recover possession under section 13 (1) (k) and 13 (1) (e) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short, “the Bombay Rent Act”). 4. The respondents denied all the material averments made by the petitioner. They denied that the suit tenament was sub-letted by the respondent No. 1 to the respondent No. 2. They contended that only occasionally, in case of need, the respondent No. 2 used to keep his patients in the hospital run by the respondent No.1. They contended that there was no reason to suspect sub-letting of the suit tenament. The respondent No. 1 alleged that he alone was conducting the medical practice in the suit tenament and never gave the exclusive possession to the respondent No. 2. The respondent No. 1 denied that he committed willful default in payment of the rent. The respondent No. 1 further denied that the suit tenament had been kept ( 4 ) unused for period of six (6) months before filing of the suit for ejectment. Hence, they sought dismissal of the suit. 5. Learned Civil Judge framed necessary issues on basis of the pleadings of the parties. The parties adduced oral and documentary evidence in support of the rival contentions. On merits, the learned Civil Judge held that the petitioner proved the transaction of sub- letting in respect of the suit tenament as between the respondents interse. The trial Court further held that the respondent No. 1 was in arrears of the rent and became willful defaulter. It was also held that the suit tenament was kept vacant for more than six (6) months prior to filing of the suit. On these findings, the suit was decreed. The respondent No. 1 preferred an appeal (R.C.A. No. 302/1982). The appellate Court held that the respondent No. 1 did not commit willful defaults nor had kept the suit tenament unused for more than six (6) months. The appellate Court further held that the petitioner failed to prove the transaction of sub-letting of the suit tenament by the respondent No. 1 ( 5 ) in favour of the respondent No. 2. Considering the material placed on record, the learned District Judge allowed the appeal and dismissed the suit. Hence, the present petition came to be filed. 6. Heard learned counsel for the parties. 7. At the threshold, let it be noted that the house property was previously held by father-in-law of the petitioner. It has come on record that her father- in-law and the respondent No. 1 were having friendly relations. The respondent No. 1 filed rent receipts. The petitioner admitted that originally, the suit tenament was let out on yearly rent of Rs. 1000/-. There was an agreement between her father-in-law and the respondent whereby the latter was allowed to construct a bath-room in the suit tenament and to get reduction in the agreed rent. He constructed the bath-room as per the terms of the agreement. Thus, by mutual consent, the yearly rent was reduced to Rs. 800/- p.a. The petitioner could not adduce reliable evidence to prove that the tenancy was monthly and, therefore, the respondent No. 1 was under ( 6 ) legal obligation to pay the rent at the end of each calender month or within reasonable time thereafter. The first Appellate Court duly noticed that the petitioner had never demanded education cess from the respondent No. 1. The material on record revealed that the tenant was not in arrears of the rent and whatever amount was found due against him had been remitted by him immediately in response to the demand notice (Ex-52). It is a matter of record that within one month of the demand, the respondent No. 1 remitted the arrears as per the demand. The petitioner accepted the said amount sent by the respondent No.1 . Needless to say, no case was made out for eviction of the respondent No. 1 on ground of willful default. Obviously, the first Appellate Court was right in holding that there remained no cause for eviction under section 3 (1) (a) and (b) of the Bombay Rent Act on ground of willful defaults. 8. So far as the ground of non-user is concerned, it is difficult to countenance the submissions of learned counsel for the petitioner. There was no reason for the respondent No. 1 to keep the premises unused ( 7 ) when he had not stopped the medical practice. It is pertinent to notice that the petitioner came out with case that the suit tenament was not sub-letted to the respondent No.1. The suit was filed on 29th September, 1976. The averments in the pleadings of the petition would show that the non-user was alleged only in respect of common bath-room. There is no specific pleading regarding non-user of the entire suit tenament for more than six (6) months prior to issuance of the demand notice. What is stated in the pleadings of the petition is that the respondent No. 1 was not using the suit tenament for more than six (6) months before filing of the suit, for the purpose in respect of which it was taken on rent and that it was being given to the respondent No. 2 on sub-letting. The purport of the averments in the pleadings is that because of the sub- letting transaction, the respondent No. 1 was not using the premises for the original purpose of the tenancy. The use of the premises by the respondent No. 2 by itself cannot be regarded as the non-user by the respondent No.1. The concept of “non-user of the tenament” is strikingly different from allowing its user ( 8 ) by someone. The ground of non-user can be raised as contemplated under section 13 (1) (k) of the Bombay Rent Act only when the tenament is kept unoccupied continuously and is being unnecessarily wasted. In other words, it must be proved that the tenant had stopped using the premises for more than six (6)months and the same had been kept vacant without taking care and there was nobody to attend the same. That is not the case of the petitioner. According to the petitioner, because the tenaament was given to the respondent No. 2 by the respondent No.1, it was not being used by the latter for more than six (6) months and as such, the ground of non-user is available to seek the decree for ejectment. I find it difficult to appreciate the contention of the petitioner. 9. On going through the evidence of the parties, I am satisfied that the ground of non-user for more than six (6) months is not duly proved by the petitioner. Thus, apart from the appropriate pleadings, there is no tangible evidence to infer that the suit tenament had been kept unused for continuous more than six (6) months ( 9 ) before filing of the suit. There is no satisfactory evidence to hold that the respondent No. 1 had stopped his medical practice and had given up use of the tenament for such purpose. 10. So far as exercise of writ jurisdiction under Article 227 of the Constitution is concerned, it may be mentioned that the first Appellate Court rendered findings of facts on basis of the material placed on record. In “Khimji Vidhu v. Premier High School” (AIR 2000 S.C. 3495), the Apex Court held that the findings of fact cannot be interfered by the High Court in the exercise of its jurisdiction under Article 227 of the Constitution. It is observed that jurisdiction under Article 227 of the Constitution must be sparingly exercised and may be exercised to correct the errors of jurisdiction and the like but not to upset pure findings of fact, which falls in the domain of an appellate Court only. It is, therefore, not legally permissible to upset the findings of fact unless it is demonstrated that same are recorded without any tangible material or without ( 10 ) properly interpreting the documentary evidence or are perverse. This Court will not re-appreciate the evidence unless there is material to infer arbitrariness or perversity in the approach of the first Appellate Court. The writ jurisdiction cannot be exercised likewise that of an appellate jurisdiction. 11. Coming to the evidence of the parties, it is important to note that PW1 Narayan is husband of the petitioner. He states that one of the rooms situated on the eastern side was used for examination of the patients and another room was being used for storing the medicines and other equipments useful for the dispensary. The testimony of PW Narayan would show that dispensary of the respondent No. 2 is at a distance of about 50/60 feet away from the suit tenament. Though he stated that the suit tenament had been sub-letted to the respondent No.2, yet, he categorically admitted that the respondent No. 2 was still running his dispensary in the premises situated in a building opposite to the suit tenament. He further admits in clear terms that the respondent No. 1 was conducting the medical practice in ( 11 ) the suit tenament. The said admission may be quoted as below : “It is true that today also, the defendant No. 1 does medical practice in the suit premises. I have no knowledge about income of the defendant No. 1 from his profession. The defendant No. 1 is Children Specialist.” This is the fatal admission which blows up the story of sub-letting. 12. The counsel for the petitioner would submit that the above admission is not material because it was with reference to juxtaposition pertaining to date of examination of PW-1 Narayan, but before filing of the suit, the sub-letting had taken place. I do not agree. It is true that there is material on record to indicate that sometimes, the respondent No. 2 used to accommodate his patients in the suit tenament. So also, the respondent No. 2 admitted this fact. He explained that due to shortage of accommodation, he used to lodge a few ( 12 ) patients in the suit tenament for post-operative care. The temporary use of a part of the suit tenament by the respondent No. 2 could not be regarded as transaction of sub-letting. The learned District Judge referred to observations in “Dr. Sohanlal Ambalal Johari v. Smt. M.M. Amonkar and others” (1981 Bom.C.R. 768). A Single Bench of this Court held that the transaction of sub- letting could not be inferred without there being sufficient nexus regarding exclusive user of the tenament by the alleged sub-tenant. Much importance was given by the trial Court to the report of Court Commissioner (Exh-90). However, the Court Commissioner executed commission without giving prior notice to the respondents and, therefore, in view of “Kishor H. Desai v. Lilawati Virji Chheda and others” 1990 (1) Bom.C.R. 160, the report could not be read in evidence. As stated earlier, it is not necessary to analyze the evidence threadbare. The counsel for the petitioner placed reliance on “M/s Bharat Sales Ltd. v. Life Insurance Corporation of India” (AIR 1998 S.C. 1240). The Apex Court held that the Court is permitted to draw ( 13 ) its own inference upon the facts of the case proved at the trial, including the delivery of exclusive possession to infer that the premises were sub-let. There is no difficulty in accepting the settled principle. However, in the present case, there is no reliable material to infer delivery of exclusive possession in favour of the respondent No. 2. Thus, mere occasional use of the part of the suit tenament, to accommodate some patients who needed post-operative care in the suit tenament, cannot be treated as delivery of exclusive possession to the respondent No. 2 by the respondent No. 1. In any case, the view taken by the learned District Judge cannot be said to be improper and perverse. 13. For the foregoing reasons, I find no substance in the petition. Hence, the petition is dismissed. No costs. [ V.R. KINGAONKAR ] JUDGE NPJ/wp1991-91 ( 14 )