BALWANT SADASHIV DATYE Vs. VASUDEO SHRIPAD MAHADEOKAR

JUDGEMENT

(1.) THIS is a petition arising out of proceedings instituted by the respondents under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, hereinafter referred to as the "Bombay Rent Act". The first respondent is the owner of a house at Satara. One shop in that building was tenanted by one Balwant Sadashiv Datye, who will hereinafter be referred to for the sake of convenience as the "first defendant". During the pendency of this petition he having died, his legal representatives have been brought on record. The second petitioner is the brother of the said Balwant and petitioner Nos. 3 and 4 and inter se brothers. The second petitioner was defendant No. 2 in the suit, to which reference will be made shortly, while petitioner Nos. 3 and 4 were defendant Nos. 3 and 4 respectively. Respondent and all of them were the plaintiffs in the trial Court.

(2.) REGULAR Civil Suit No. 228 of 1976 was filed by the plaintiffs against the defendants in the Court of the Joint Civil Judge, Junior Division, at Satara for possession of the aforesaid shop, hereinafter referred to as the "suit premises", on various grounds, two only of which may be noticed in this petition. One was that the plaintiffs required the suit premises for their own use and occupation and secondly that the first defendant, who was the tenant of the suit premises, had not used the same for a period of more than six months immediately before the institution, of the suit. The trial Court by its judgment and order dated 5th February 1981 decreed the suit on various grounds. The defendants preferred an appeal, being Civil Appeal No. 121 of 1981 which was also dismissed by the appeal Court below by its judgment and order dated 24th of January 1984. The appeal Court however, confirmed the decree for eviction passed by the trial Court only on two grounds. One was the plaintiffs required the suit premises reasonably and bonafide for their own use and occupation and secondly on the ground that the first defendant had not used the suit premises for a period for more than six months immediately before the institution of the suit. The defendants have now approached this Court under Article 22.7 of the Constitution of India.

(3.) MR . Abhyankar appearing for the respondents, however, urges that when the appeal Court below recorded a finding that the first defendnat was not using the suit premises at all, it necessarily also recorded a finding that the suit premises were not used at all by anyone at least from 1975 to 1981. That is also the finding of the trial Court and ground available under Section 13(1)(k) of the Bombay Rent Act. I have, with the assistance of the learned Advocates, gone through the judgment of both the Courts below and also the relevant evidence on record. After doing so, it is not possible to hold that the appeal Court below has recorded a finding that there was a total non-user of the suit premises for more than six months immediately preceding the date of the suit. On the other hand, what has been held by the appeal Court below is that "at least since 5.10.1975 the suit premises have been used for running a grocery shop and that too of defendant No. 3 with which defendant No. 1 who is the real tenant has no concern". Proceeding further, the appeal Court held as follows :-