CHANDRAKANT BABUBHAI TANNA Vs. RATANBAI VIRAJI THAKKAR

JUDGEMENT

(1.) This writ petition under Article 227 of the Constitution of India takes exception to the order passed by the Judgment and Decree by the District Judge, Nashik dated September 30, 1991 in Civil Appeal No.443 of 1986. The premises in question are owned by the Respondent situated at Ratan Bhuvan, M.G. Road, Nashik admeasuring 10 x 10ft. on the southern side of the said building. (hereinafter referred to as the "suit premises"). The Petitioner was inducted as monthly tenant in the suit premises on 14-8-1972. According to the Respondent the premises were let out to the Petitioner for carrying on cloth business. However, the Petitioner kept the premises closed from Feb., 1982 for which reason the Respondent instituted suit in the Court of Civil Judge, J.D. Nashik on September 13,1983 being R.C.S. No.739 of 1983. The suit for possession of the suit premises was originally on the ground of default under section 12 and non user under section 13(1)(k) of the Bombay Rents, Hotel and Lodging House Rates Control Act,1947- (hereinafter referred to as the said Act). The plaint clearly avers that the Petitioner had kept the suit premises closed for last 20 to 22 months and is not using the same for the purpose for which it was let out. In Paragraph 3 of the Plaint, it is clearly stated that the premises are not being used by the Petitioner without any reason. Undisputedly, after the institution of the suit the Petitioner started doing business of bakery in the suit premises with effect from October, 1983. As a consequence of which the Respondent amended the suit by adding one more ground for eviction, namely, change of user. According to the Respondent the premises were let out only for the business of cloth, whereas the Petitioner had changed the user of the suit premises to business of bakery which was another independent ground for eviction under section 13(1)(a) of the Act.

(2.) According to the learned counsel for the Petitioner, the Courts below have completely overlooked the fact that the Petitioner was always wanting to continue to do business in the suit premises; and, more so, the evidence on record would establish the fact that the stock in trade of the old business was lying in the suit premises and, during the relevant period, the Petitioner was in fact making arrangement to dispose of the same, and as soon as necessary arrangements were made, the Petitioner immediately commenced the business of bakery in the suit premises from October, 1983. According to the Petitioner, the fact that the Petitioner started new business of bakery in the suit premises will belie the claim of the Respondent Plaintiff that the premises were not used by the Petitioner tenant or that he had no intention to use the said premises. In other words, it is contended that the Petitioner had not abandoned the suit premises or gave up the activity related to business in the suit premises. Further, he not only retained the possession of the suit premises but also punctually paid the rent and other charges therefor. It is further contended that the Courts below have misdirected themselves in relying on the circumstances of court summons being served on the Petitioner on the address of Ceramic Centre so as to conclude that the premises were found locked during the relevant period. In as much as the said service was attempted after institution of the suit and that fact would be of no consequence to answer the issue as to whether the Petitioner had kept the suit premises locked continuously for a period of more than 6 months preceding the date of the institution of the suit without any reasonable cause.

(3.) On the other hand, the learned counsel for the Respondent contends that the two Courts below have closely scrutinized the materials on record and have made reference not only to the pleadings but also to the oral as well as documentary evidence to record findings of fact that the suit premises were kept locked continuously for a period of more than 6 months and were not used for the purpose for which they were let out without any reasonable cause. He submits that such finding of fact ought not to be interfered in exercise of writ jurisdiction, even if the Petitioner may succeed in pointing out some mistakes committed by the Courts below on certain matters; whereas this Court should broadly examine as to whether the finding of fact arrived at by the courts below can be said to be perverse or manifestly wrong. In this context, he has drawn my attention to the pleadings of the parties as well as the relevant evidence and contends that it is not possible to take the view that the finding of fact recorded by the Courts below can be said to be without any legal evidence on record; and if this be the position, no interference under Article 227 of the Constitution of India is warranted. He has further pointed out that the arguments now advanced on behalf of the Petitioner are totally ill-advised and not supported by the materials on record. In the first place, he has drawn my attention to Para 3 of the plaint wherein the Plaintiff has clearly asserted that the premises had been kept locked and unused for the purpose for which it was let out continuously for more that 6 months preceding the date of institution of the suit without any reasonable cause. He has also drawn my attention to Para 5 of the written statement which makes no reference to the specific case made in the plaint. On the other hand, the Petitioner-Defendant had taken a specific plea in the written statement that the premises were kept locked and unused as stated in the plaint. The only stand taken in the written statement is that the Defendant was contemplating to change the business and, therefore was opening the shop for disposing of the stock of the previous business lying in the premises. It is therefore, contended that this specific plea taken in the written statement has not been accepted by the Courts below after analyzing the oral evidence of the parties on record and in such a situation the concurrent finding of fact recorded by the Courts below ought not to be interfered.