KHOJA HABIB JAFAR Vs. ALIBHAI MAMAD MOMNA

JUDGEMENT

(1.) The petitioner is a tenant of the residential house situated in village Bhanvad belonging to the respondent. The respondent has filed a suit being Civil Suit No. 74 of 1982 to recover possession of the suit premises on the ground of arrears as well as bona fide personal requirement. According to the respondent the suit premises has not been used for a continuous period of six months immediately preceding the date of the suit and in fact the petitioner is residing in some other village namely Verad with his son. The trial Court decreed the suit by holding that the petitioner is not using the suit premises for more than six months i.e. on the ground of non-user and also personal bona fide requirement. In the appeal being Reg. Civil Appeal No. 36 of 1984 which was heard by the learned Jt. District Judge Jamnagar the judgment and decree passed in favour of the respondent came to be confirmed while dismissing the appeal. Hence the present Revision Application.

(2.) Mr. A. R. Thakkar learned Advocate for the petitioner vehemently submitted that the respondent has failed to establish the fact that the suit premises have not been used without reasonable cause for the purpose for which the same was let for a continuous period of six months immediately preceding the date of the suit and in absence of evidence to this effect the Court below ought not to have passed decree of eviction under Section 13(i)(k) of the Bombay Rent Act. In support of his submission Mr. Thakkar relied on the decision of this Court rendered in the case of Luhar Jagjivanbhai Ramjibhai and Others v. Mukundlal Pitambardas Shah 1987(1) G.L.H. 395. In the said judgment my learned brother R. A. Mehta J. while interpreting Section 13(i)(k) of the Act has held that the landlord has to prove not only user or change of user but has also to prove that it is without reasonable cause. That was a case wherein the suit premises were let as a godown whereas they are being used for the purpose of business of blacksmith by installing a bath and chimney and the question of subletting in the knowledge of the landlord was also established. Considering the said circumstances a finding was recorded by the trial Court that the transfer or subletting was held to have been proved. With these facts on record my learned brother R. A. Mehta J. observed as under :

(3.) Mr. Thakkar next submitted that except the bare say of the respondent there is no other evidence which would go to show that the petitioner has stopped living in the suit premises and the respondent is not entitled to rely on the circumstance of the suit notice having been received by the petitioner at village Verad. In support of his submission he has relied on the decision in the case of Shah Ochhavlal Motilal and Another v. Kansara Dhanlaxmi Becharlal 1986 G.L.H. 389 wherein my learned brother R. A. Mehta J. has observed that it is for the plaintiff to prove his case and he cannot succeed on the weakness of the case of the defendant. There cannot be any dispute to the principle laid down in the said judgment however in that case the plaintiff had no personal knowledge whatsoever about the non-user by the defendant. Under the circumstances the Court observed that for proving non-user of the premises the plaintiff has to prove his case. While in the instant case there is a positive evidence by the respondent which is not controverted by the petitioner by leading proper evidence and therefore the facts of the said case are different from the present one. The submission of Mr. Thakkar is therefore rejected.