RAVENDRA BAHADUR KHARE Vs. JAGDISHCHANDRA RAMJILAL JAIN

JUDGEMENT

(1.) Heard Dr. Chadrachud, learned Counsel for the applicant and Mr.Dani, learned Senior Counsel for the respondent at length.

(2.) By this Application under Section 115 of the Code of Civil Procedure, 1908 (for short 'C.P.C.'), applicant, hereinafter referred to as 'defendant', has challenged the judgment and decree dated 09.05.2015 passed by the learned Judge, Court Room No.40 of the Court of Small Causes at Mumbai (Bandra Branch) in R.A.E.Suit No.519 of 2012 as also the judgment and decree dated 11.10.2018 passed by the Appellate Bench of the Small Causes Court at Bandra in (A-1) Appeal No.26 of 2015. By these orders, the Courts below decreed the Suit instituted by the respondent, hereinafter referred to as 'plaintiff', and directed the defendant to handover vacant and peaceful possession of one room kitchen situate on the first floor of 'Navlakhi Bungalow' situate at Ganjawala Lane, Mandpeshwar Road, Borivali (West), Mumbai 400 092 corresponding to C.T.S. No.555, 555/1 to 10 and duly assessed before R/Central Ward and Account No.R-5242(2)233, House GR.W.No. 5242 (1), Borivali, Mumbai (hereinafter referred to as the 'suit premises') on the ground of non-user as contemplated by Section 16(1)(n) of the Maharashtra Rent Control Act, 1999 (for short 'Act').

(3.) In support of this Application, Dr. Chandrachud submitted that the Suit was instituted by the plaintiff on 29.06.2012. The relevant period would therefore, be 6 months preceding 29.06.2012 being the date of institution of the Suit. He has invited my attention to the findings recorded by the learned trial Judge in paragraphs 21, 23 and 26 as also the findings recorded by the Appellate Court in paragraphs 22 and 23. He submitted that the initial burden is on the plaintiff to prove the ground of non-user. Though plaintiff admitted in his cross-examination that he is in possession of the electricity bills pertaining to the suit premises, he did not produce the same. The Courts below should have drawn inference against the plaintiff for non-production of the electricity bills. He submitted that the Courts below also recorded erroneous finding to the effect that ration card ration card of the defendant was cancelled 20 years back. He has invited my attention to the letter dated 05.02.2013 issued by the Information Officer / Rationing Officer to Ashish Jain.