PHIROZ MERWAN IRANI Vs. B.S. IRANI

JUDGEMENT

(1.) THIS is a petition by the original defendant against whom both courts below have recorded a concurrent finding that the defendant-tenant has failed to use the premises for the purpose for which it was let out for a period of more than six months immediately preceding the date of the filing of the suit under the provisions of section 13(1)(k) of the Bombay Rent Act.

(2.) THE plaintiffs claim that they are the owners of a building situate of Dadar, Mumbai. The defendant was occupying shop no.2 as a tenant. The premises were let out for business and the defendant was doing his business till 1965. Thereafter, the shop remained closed and it was not used for the purpose for which it was let out. The defendant resisted the suit by contenting that the plaintiffs be put to strict proof that the premises were let out for business. The defendant, however, admitted in the written statement that the premises were being used for business. The defendant denied that the suit premises are not used for the purpose for which it was let out.

(3.) THE tenant filed Appeal No. 35 of 1976 to the Bench of the Court of Small Causes, Bombay. The appeal Court noted that the plaintiff categoricall stated that the premises were let out for the purpose of business and business was going on in the suit premises till 1965 and from 1965 onwards, the shop remained closed and is not used for the purpose for which it was let out. There was no denial in the written statement that the premises were let out for business. There was admission in the written statement that the premises were used for business. The learned Judges also referred to the evidence on record showing that there was a provision store in the suit premises till 1965 and the shop was, thereafter, kept closed for a number of years and the evidence of the plaintiffs further shows that only about a year back somebody has opened a liquor shop in the suit premises. The learned Judges of the lower appellate Court also found fault with the defendant that the case which he had tried to made out in the evidence was never pleaded and it was totally a new case. Secondly, the learned appellate Bench found that there is absolutely no evidence to suggest that the New Parsian Bakery had anything to do either with the suit premises or with the original tenant. The original tenant has admittedly left for Iran for good. The witness for the defendant-tenant admitted that he has no documentary evidence that from 1966 to the middle of 1969, the suit premises were used for any business. It is on the basis of these observations that the learned Judges of the appeal Court held that the trial Court was right in holding that the landlords have made out a ground for eviction under the provisions of section 13(1) (k) of the Bombay Rent Act.