PURSHOTTAMDAS ISHWERLAL MISTRY Vs. NANDLAL KERUMAL

JUDGEMENT

(1.) BY way of the present Civil Revision Application under Section 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act,1947 (hereinafter referred to as the Rent Act ), the petitioner herein - original plaintiff landlord has challenged the judgment and order dated 20/01/2005 passed by learned Appellate Bench of Small Causes Court, Ahmedabad in Civil Appeal No.172 of 1997, by which, judgement and decree passed by learned Small Causes Court dated 23/10/1997 in HRP Civil Suit No.3798 of 1987 is quashed and set aside.

(2.) BRIEF facts, arising from the record, are as under:

(3.) ON the other hand, Mr.Vasu, learned advocate appearing for the respondent herein original defendant- tenant has submitted that learned Appellate Bench of Small Causes Court has rightly observed that even prima facie, the petitioner herein original plaintiff- landlord has failed in establishing that the suit shop was not in use for more than six months immediately preceding the date of filing of the suit. It is submitted that onus of proof upon the original defendant shifts, only if the landlord prima facie established that the suit premises was not in use when the suit was filed. It is submitted that original defendant-tenant could established that the original defendant-tenant was doing business in the shop since years and by renewing the licence produced at Exh.50, it was established that the suit premises was in use when the suit was filed. He has relied upon the decision of this Court dated 19/12/2012 passed in Civil Revision Application No.252 of 2006 [Rameshvar Madhulal Shah v. Gordhanbhai Kacharabhai Decd. thro. Heirs & Ors.]. It is submitted that the ratio laid down in the said case is applicable in the present case and when it is established that the original plaintiff-landlord has failed prima facie in establishing that the suit shop was not in use, when the suit was filed. It is undisputed fact that when the original plaintiff-landlord has failed in establishing that the suit shop was not in use when the suit was filed, the onus was not shifted upon the original defendant- tenant. If on the contrary, the original defendant tenant could established that the suit shop is in use when the suit was filed.