SHAH RATANLAL MOTILAL Vs. UMA TRANSPORT COMPANY

JUDGEMENT

(1.) The petitioner, original defendant - tenant, which is a partnership firm has challenged in this revision application, which is filed under Section 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short "the Act"), the judgement and decree passed by the courts below, decreeing the suit of the respondent - original plaintiff on the ground of non-user of the suit premises under Section 13(1)(k) of the Act.

(2.) Shri Sudhir Nanavati, learned senior Advocate appearing for the petitioner - tenant, vehemently submitted that both the courts below have committed a grave error in passing the decree of eviction against the petitioner - tenant on the ground of non-user of the suit premises. He submitted that though there are concurrent findings of facts recorded by the courts below on the point of non-user of the suit premises continuously for a period of six months immediately prior to the date of filing of the suit, this Court should interfere with such concurrent findings of fact in its revisional jurisdiction under Section 29(2) of the Act because there was a total misapplication of law by the courts below while appreciating the evidence of the plaintiff as well as the defendant. In support of his submission Shri Nanavati has relied upon a judgement of this Court in the case of Dr.Popatlal Premchand Sheth (Since Decd.) Through His Heirs Dinesh Popatlal Sheth and Ors. Vs. M/s. Dhanjibhai and Sons, reported in 1994 (1) GLR 71 for making his submission good. Shri Nanavati has taken me through the relevant evidence of the plaintiff's and the defendant's witnesses by supplying paper book consisting of the evidence of the witnesses which includes the report of the Court Commissioner in the earlier suit filed by the plaintiff against the defendant.

(3.) Shri Nanavati first invited my attention to the finding recorded by the first Appellate Court, i.e. the Appellate Bench of Small Causes Court, Ahmedabad. At the end of para 14 at page 36, the Hon'ble Members of the Appellate Bench of the Small Causes Court observed that, "According to our view, the notes of the court commissioner, who has visited the site on 5.10.1995 are not helpful to either of the party, because the relevant period for consideration is August, 1987 to the date of filing of the suit". He submitted that after making the aforesaid observation, the Appellate Bench of the Small Causes Court committed an obvious error in relying upon the said report against the petitioner. He also tried to submit that the courts below have completely misread the evidence of the plaintiff as well as the defendant. According to his submission, much weightage has been given to some of the admissions of the defendant made in his cross-examination which is in the context of non-user of the premises from 1995 onwards because evidence of defendant's witness, Bhagwandas Ratanlal, was recorded somewhere in January, 2000, wherein he has stated that the suit premises was not in use since last 3-4 years. Shri Nanavati submitted that for the purpose of passing decree under Section 13(1)(k), the court must come to a definite finding that there was non-user of the suit premises by the defendant - tenant for a continuous period of six months immediately preceding the date of filing of the suit. In this case, the suit was filed somewhere in the year March, 1988 and finding is not recorded by the courts below that from August, 1987 till March, 1988, the suit premises remained non-used and, therefore, the judgement and decree passed by the courts below must be set aside.