RAVINBHUSHAN ANANT DATAR Vs. WAMAN DATTATRAY PUROHIT

JUDGEMENT

(1.) THE 4th Additional Judge of the Small Causes court at Pune, decreed the suit for eviction filed by the petitioners against the respondent on 16th August, 1985. The suit was decreed on the ground spelt out in section 13 (l) (k) of the Bombay Rent, Hotel and Lodging House Rates control Act, 1947, namely, that the premises have not been used without reasonable cause for the purpose for which they were let for a continuous period of six months immediately preceding the date of the suit and under section 12 (3) (a) of the Act as it stood prior to its amendment in 1987, namely, that there was a default on the part of the respondent in the payment of rent. The judgment and order of the learned trial Judge was reserved in appeal on 14th August, 1989 by the Vth Additional District Judge, Pune.

(2.) THE premises which form the subject matter of dispute consist of a property bearing house No. 715-B, situate at Sadashiv Peth, Pune 411 030. By a registered lease deed dated 1st June 1967, an area admeasuring 2700 sq. ft. consisting of three sheds and an appurtenant open space came to be let out to the respondent. The rent of the premises was fixed at Rs. 1200/- per annum payable quarterly. The purpose of the letting was for the manufacture of woodcraft.

(3.) ON 25th March, 1982, a notice came to be issued by the petitioners to the respondent claiming that the rental payments were in arrears from 1st april 1977 and that a total amount of Rs. 6,000/- was due and payable. The notice was received by the respondent on 30th March, 1982. The petitioners instituted on 15th July, 1982 a suit for eviction against the respondent claiming a decree for eviction on the ground that the premises had not been used for the purposes for which they had been let, without reasonable cause for a continuous period of six months immediately preceding the date of the suit and on the ground of default in the payment of rent. Evidence was adduced in the course of the trial. By a judgment and order dated 16th August, 1985, the suit was decreed by the 4th Additional Judge of the Small Cause Court, Pune. In so far as the ground of non-user was concerned, the learned trial Judge found that the premises had not in fact been used for a period in excess of six months prior to the institution of the suit. In arriving at this conclusion, the learned trial Judge relied upon several circumstances, among them being (i)the absence of electricity consumption in the premises; (ii) the fact that the telephone connection which was in existence in the premises since 1965 had been removed in 1977; (iii) there was no business licence obtained from the municipal Corporation or under the Shops and Establishments Act; (iv) the respondent had neither produced nor maintained any account books in respect of the business activities allegedly carried on from the suit premises. Apart from the aforesaid circumstances, the learned trial Judge relied upon the evidence of the first petitioner who gave evidence in support of the case. The evidence of a photographer who had taken photographs at Exhibit 34 and 35 demonstrating the condition of the premises, the evidence of a representative of the petitioners who had been collecting rent and evidence of a neighbour were inter alia relied upon by the trial Judge in order to support the finding that there had been no user of the premises. In so far as the question of arrears was concerned, the trial Judge held that a decree for eviction was liable to be passed under section 12 (3) (a) of the Act on the ground that the respondent had neither preferred an application for the fixation of standard rent within 30 days of the receipt of the notice under section 12 (2) of the Act, nor had he deposited the amount of arrears in the Court. The judgment and order of the learned trial Judge came to be reversed in appeal on 14th August, 1989. The first Appellate Court in so far as the question of non-user was concerned, held that (i) the evidence of the representative of the plaintiffs who used to collect rent had to be discarded because he was an interested witness: (ii) the photographs which were taken to establish the state of disuse could not be relied upon because they were of a part of the premises; (iii) evidence of the neighbour to the effect that the premises were not used could not be relied upon since he admitted that during a part of the day, he was away from his residence at work; and (iv) that no prudent man wduld pay rent if he was not using the premises. The trial Court, it must be noted, had also relied upon the inspection of the premises by the Court during the course of the trial. The appellate Court held that the inspection by the trial Court would only reveal the status of the property after the institution of the suit and was, therefore, not relevant as to whether the premises had not been used continuously for a period of six months proceeding the date of the suit and as to whether there was non-user of the premises for the purpose for which they were let. In so far as the question of arrears is concerned, the first Appellate Court held that this was a case of a yearly tenancy; the tenancy had not been terminated under section 106 of the Transfer of Property Act, 1882 and that in the circumstances, the suit for eviction was not maintainable.