SITARAM LAXMAN TILWANKAR Vs. KRISHNAJI RAMCHANDRA BARVE

JUDGEMENT

(1.) THIS is a petition under Article 227 of the Constitution of India challenging the decree by the learned V Extra - Assistant Judge, Pune on 4.1.1983 whereby the learned 5th Extra Assistant Judge, Pune dismissed the suit of the plaintiff for possession which was filed on the ground of non-user of the suit premises.

(2.) FEW facts which are relevant for the purpose of this petition are, the respondent was tenant of two rooms on the first floor bearing No. 1091, Budhwar Peth, Pune where he was carrying on his dispensary. In addition to these two rooms the respondent-tenant was also occupying the 2nd floor for the purpose of this residence. It appears that the respondent-tenant constructed a premises at Gultekadi. He shifted his residence to Gultekadi and surrendered the possession of 2nd floor which was in his occupation for the purpose of his residence. Since the premises were surrendered the question of filaxation of standard rent also arose. Therefore, on 12th September, 1974 tenant issued notice to the landlord at Exts. 55 and informed the landlord to reduce the rent. To this notice petitioner-landlord give reply on 19th December, 1974 and it was brought to the notice of the tenant that he is not using the premises on the first floor for the purpose of his dispensary. Therefore, on 20th December, 1974 the tenancy was terminated by notice at Exhibit 42. This notice was replied on 27th December, 1974 and a suit for possession was filed on the ground of non-user under Section 13(1) (k) of the Bombay Rent Act, on 18.4.1977. It appears from the everments made in the plaint that the non-user alleged in the plaint was from 1966 and there was a gap of about 3 years after the termination of tenancy in filing the suit.

(3.) THE learned 3rd Additional Judge, Small Causes Court, Pune who heard Civil Suit No. 1038 of 1977 by his judgment accepted the contention of the landlord and, held, that the premises were not used for more than 6 months before filing of the suit. He relied upon both oral and documentary evidence filed by both the parties. In paragraph 12 he noted the fact that respondent was serving as anesthetic in more than one hospital. He was attached to Wadia Hospital, Telgaon Hospital as well as private meternity homes. He also noted the fact of shifting of the telephone from the suit premises to his residential premises at Gultekadi. He also drew adverse inference for not producing the papers relating to the private practice carried out at the premises by the respondent in spite of the notice given by the petitioner. He also noted the income-tax returns which were filed on the record which showed negligible private practice and the income derived therefrom was also noted. He relied upon the letter issued by the Shops and Establishments Authority of Pune Municipal Corporation and came to the conclusion that the premises are not in use. He also accepted the contention of the petitioner that respondent-tenant's son Mukund K. Barve also shifted to Gultekadi and even he removed his dental chair to Gultekadi. On the basis of these evidences he came to the conclusion that respondent was not using the suit premises for more than 6 months before filing of the suit and then he decreed the claim of the petitioner landlord.