FAKRUDDIN ABBASBHAI LANEWALA Vs. SHAHAJABIBI GHULAM RASOOL SHAIKH

JUDGEMENT

(1.) The present Civil Revision Application under Section 29(2) of the Bombay Rent Act is directed against the decisions delivered by the courts below dated 30.9.2009 passed in Regular Civil Suit No.38 of 1998 as well as an order dated 30.8.2016 passed in Appeal No.47 of 2009.

(2.) The case of the petitioner - original plaintiff (landlord) is that he is the owner of the suit premises situated at Plot bearing No.34/2013 which is a two storeyed building consisting of ground floor and having four shops. The shop in question is a shop first from western side and 4th shop from eastern side was let out to the tenant - Ghulam Rasool Shaikh years back. Said Ghulam Rasool Shaikh had expired on 24.1.1995, who was a statutory tenant of the premises in question at a monthly rent of Rs.35/-. It is the case of the plaintiff that though the present occupiers and the defendants, who are respondents herein, were not carrying out the business along with said Ghulam Rasool Shaikh, but were not residing prior to three months from his death in the shop. As a result of this, since they being not with the deceased at the relevant point of time prior to three months from the date of death nor were assisting him in the business in the shop in question, are not entitled to seek any protection under the provisions of the Bombay Rent Act. As a result of which, Regular Civil Suit No.38 of 1998 came to be filed for the purpose of recovery of possession and arrears of rent.

(3.) Mr.M.B.Gandhi, learned advocate appearing for the petitioner - original plaintiff, has contended that in the present proceedings, despite the fact that there was a specific plea with regard to nonuser of premises, the trial court has not framed any issue with respect to that. It has also been contended that this being a premises let out for the business purpose, since none of the respondents were doing the business and assisting the deceased prior to three months from the date of his death, they are not entitled to seek any protection by virtue of Section 5(11)(c)(ii) of the Bombay Rent Act. It has also been contended that the contentions which have been pressed into service have not properly been considered by the courts below and so much so that erroneously the trial court has allowed the respondents to adduce the evidence in a situation where they have not submitted any written statement. Learned advocate has further pointed out that even the examination which has taken place of the witnesses are also not revealing the fact by virtue of which any protection is available to the respondent.