Smt. Leelabai Rajaram Dhere v. Shri Hindurao Mahadeorao Phatak & Ors.

The trial court by its judgment and decree dated 23rd July, 2009 decreed the Respondents – original Plaintiffs Civil Suit No.450 of 2004 on the ground that the Applicant – original Defendant was not used the tenanted premises k 2 cra 869.11.doc for more than six months prior to the filing of the suit. The said finding confirmed by the Appellate Court in Regular Civil Appeal No.207 of 2009 by judgment and decree dated 19th July, 2011. Hence, the present Civil Revision Application. 4 For the sake of convenience, the nomenclature of the parties as described in the Plaint are hereinafter referred as the Applicant is original Defendant and Respondents are original Plaintiffs. 5 The Plaintiffs have filed Regular Civil Suit No.450 of 2004 in the Court of Joint Civil Judge Junior Division, Kolhapur against the Defendant for eviction and vacant and peaceful possession of the property bearing CTS No.2002/1 to 3 situate at C-Ward, Kolhapur (hereinafter referred to as “the suit property”) on the ground that the Defendant has committed default in payment of rent, not using the said premises for more than six months prior to the filing of the suit, due to the act of the Defendant suit property was damaged, the Plaintiff required the suit property bonafidely and reasonably for their own use etc. The trial court decreed the Plaintiff’s suit on the ground that the Plaintiff proved that for the period of more than six months prior to the filing of the suit the Defendant was not using the suit property and due to the act of the Defendant the suit property was damaged. In similar way, the k 3 cra 869.11.doc Appellate Court dismissed the Defendant’s Regular Civil Appeal No.207 of 2009 holding that Plaintiffs proved that the Defendant was not using the suit premises for more than six months prior to the filing of the suit and because of the act of the Defendant the suit property was damaged. For coming to this concurrent finding both the courts below relied on the Commissioner’s Report as well as evidence given by the Assistant Accountant from the Maharashtra State Electricity Board (MSEB). The trial court appointed Court Commissioner for submitting the report about the condition of the suit property where the Defendant was carrying the hotel business in the name and style as “Sukh Nivas Hotel”. The Commissioner visited a suit premises and submitted report along with photographs showing that the suit premises were not in use for more than six months. When he visited the suit premises were closed having wooden doors three locks. However, the upper ventilators on the door were open and with the help of ladder, he saw inside the suit premises. At that time he found tables, chairs, counter and furniture were lying in the scattered condition. He also found that basin was kept upside down on the cash counter. He found dust accumulated on the table, chairs and counter. He found spider webs in entire room. With the help of photographer he took photos to show the internal condition of the suit premises. He found the roof of that room was in damaged condition, some of the tiles from the roof were found fallen. He submitted his report at Exhibit 14 and also photographs. The k 4 cra 869.11.doc said photographer was cross examined by the Defendant but failed to take out any favourable admissions in his favour. The Court also relied on the evidence of PW3 Mrs. Vidya Koli, the Assistant Accountant from the Maharashtra State Electricity Board who proved the ledger account in respect of electric connection of the suit property. The said witness stated that there was no consumption of electric energy from November, 2002 to March, 2004 and thereafter also. On the basis of these documents and evidence on record both the courts below held that Plaintiff proved that Defendant failed to use the suit premises for more than six months immediately preceding of the suit. 6 The learned counsel appearing on behalf of the Defendant submits that the learned trial courts have failed to follow the provisions of section 16(1)(n) of the Maharashtra Rent Control Act. 1999 and have wrongly come to the conclusion that the Defendant has not used the suit premises for more than six months prior to the filing of the suit. He further submits that the trial court failed to consider that the evidence of the Plaintiff itself shows that the suit property was in use during the pendency of the suit and also prior to the filing of the suit. He submits that the trial courts have come to a wrong conclusion that the suit property has not been used without any reasonable cause for the purpose for which it was let out for a continuous period of six months immediately preceding the date of the suit. He also relied on some k 5 cra 869.11.doc discrepancies in the Court Commissioner’s report, his evidence and cross examination. He further submitted that even the PW3 who was working as a Assistant Accountant in the office of the Maharashtra State Electricity Board failed to give the exact information whether the Defendant was using the electricity or not in the suit premises. On the basis of these contentions, the learned counsel appearing on behalf of Defendant states that concurrent findings of both the courts below are liable to be set aside. He submits that the Plaintiff failed to prove that immediately preceding the date of the suit for continuous period of six months the Defendant was not using the suit premises and therefore, the Plaintiff is not entitled any relief under section 16(1)(n) of the Maharashtra Rent Control Act, 1999. In support of this contention, he relies on the judgment of the Bombay High Court in the matter of Shantanu Baburao Palaskhedkar vs. Vinayak Mahadeo Sainkar reported in 2002 (1) Mh.L.J. 262. In that case our High Court held that the provisions of section 13(1)(k) of the Bombay Rent Act which are similar to the provisions of section 16(1)(n) of the Maharashtra Rent Act, 1999 are attracted only when the premises have not been used without reasonable cause for the purpose for which they were let out for continuous period of six months immediately preceding the date of the suit. Therefore, in the interest of justice, the present Civil Revision Application to be allowed by setting aside the concurrent findings of the both the courts below. k 6 cra 869.11.doc 7 On the other hand, the learned counsel appearing on behalf of the Respondents – original Plaintiffs vehemently opposed the present Civil Revision Application. He submits that both the courts concurrently held that the Defendant was not using the suit property for continuous period of six months immediately preceding the date of the suit. He submits that actually the Defendant was not using the suit premises since the last several years. He further submits that it is crystal clear on the basis of the Court Commissioner’s report and the evidence of PW3 the Assistant Accountant from the Maharashtra State Electricity Board that the suit premises was not in use for last several years. He further submits that the Defendant though filed her written statement to oppose the prayers claimed by the Plaintiff, she failed to enter into witness box to justify whatever stated by her in written statement. He submits that if a party to the suit does not enter into the witness box, that gives rise to adverse interference against him. In support of this preposition, he relies on the judgment of the Apex Court in the matter of Vidyadhar vs. Mankikrao and another reported in AIR 1999 SC 1441. Head note “A” of that judgment reads thus: (A) Evidence Act (1 of 1872), S. 114 – EVIDENCE – Adverse inference – Party to suit – Not entering the witness box - Give rise to inference adverse against him. k 7 cra 869.11.doc Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct. In the instant case defendant No.1 alleged that the sale deed, executed by defendant No.2 in favour of the plaintiff, was fictitious and the whole transaction was a bogus transactions as only Rs.500/- were paid as sale consideration to defendant No.2. But this plea was not supported by defendant No.1 as he did not enter into the witness box. He did not state the facts pleaded in the written statement on oath in the trial Court and avoided the witness box so that he may not be cross-examined. This, by itself, is enough to reject the claim that the transaction of sale between defendant No.2 and the plaintiff was a bogus transaction”. 8 The learned counsel for the Plaintiffs further submits that it is not necessary for a landlord to establish that the premises were not in use at all. It is enough if the landlord proves that the tenant was not using the premises for the purpose for which it was let out for a continuous period of six months. In support of these submissions, he relied on the judgment in the matter of Bhaskar Wamanrao Rithe and another vs. Smt. Indira Iyer reported in 2006 (1) Mh.L.J. 155. k 8 cra 869.11.doc 9 The learned counsel for the Plaintiffs further submits that the Defendant failed to make out any case to show that both the courts below acted in the exercise of its jurisdiction illegally or with material irregularity. He submits that under section 115 of the Civil Procedure Code the Civil Revision Application is maintainable on satisfaction of the following circumstances cumulatively, namely: (a) (i) impugned order amounts to a case decided. (ii) such order must have been passed by any court sub-ordinate to such High Court. (iii) such order must not be available one. (b) there must be allegation of jurisdictional error i.e. to say: (i) exercise of jurisdiction not vested in the court below or by law or (ii) a jurisdiction vested in it by law was failed to exercise and/or (iii) has acted in the exercise of his jurisdiction illegally or with material irregularity. 10 The learned counsel for the Plaintiffs submits that the Defendant failed to prove that both the courts below have acted in exercise of their jurisdiction illegally or with material irregularity and therefore, there is no substance in the present civil revision application and same is liable to be dismissed with costs. k 9 cra 869.11.doc 11 I have gone through both the judgments passed by the lower courts and additional compilation filed by the Defendant which includes Plaint, Written Statement and Plaintiffs evidence. In the present case, admittedly, the Defendant had not entered into witness box to justify her case though she filed the written statement. Therefore, in view of the Apex Court's judgment in the matter of Vidhyadhar (supra) both the courts below rightly raised inference adverse to the Defendant and held that the Defendant failed to make out use of suit premises within six months before the date of filing of the suit and he has not damaged the suit property. 12 Both the courts below considered the Court Commissioner's report, photographs and evidence of PW3 the Assistant Accountant of the Maharashtra State Electricity Board for coming to the conclusion that the Defendant was not using the suit premises for more than six months before filing the suit without any reasonable cause. It is not necessary for landlord to establish that the premises were not in use at all. It is enough, if the landlord proves that the tenant was not using the premises for the purpose for which it was let out for a continuous period of six months before filing a suit. Though the Defendant relied on the judgment in the matter of Shantanu Baburao Palaskhedkar (supra) in support of his contention that the Plaintiff failed to prove that the Defendant was not using the suit premises continuously for k 10 cra 869.11.doc more than six months prior to the filing of the suit without any cause, cannot help the Defendant because Defendant neither entered into witness box nor produced any documentary evidence to show that she was using the suit premises. Admittedly, the Court Commissioner specifically pointed out in his report that the suit premises were lying vacant for years together. Not only that even the PW3 the Assistant Accountant from the office of the Maharashtra State Electricity Board specifically stated that there was no consumption of electricity in the suit premises for last several years. These two things are more than sufficient for coming to the conclusion that the Defendant was not using the suit premises for more than six months prior to the filing of the suit by the Plaintiff. Not only that the Defendant has not made out any case to show that both the courts below have acted in exercise of their jurisdiction illegally and with material irregularity. Therefore, the Defendant has not made out any case to entertain the present Civil Revision Application under section 115 of the Civil Procedure Code. Civil Revision Application is dismissed. (K.K.TATED, J)