In the facts of the present case, the Defendant has pleaded and has brought evidence on record to show that his wife was suffering from heart ailment and has undergone bye-pass surgery in the year, 2003. However, the relevant period as noted above is from 2004 to November, 2004. There is no pleadings nor any evidence to show that actually the ailment of the wife of the Respondent continued during the relevant period. This crucial fact has been completely overlooked by the Appellate Court. Once non-user was proved, the entire burden of showing reasonable cause for non-user had shifted on the Defendant -Tenant and in my opinion, in that context of the case, the Defendant -Tenant has miserably failed to discharge that burden. Though the Defendant had led sufficient evidence to support the act of non-user till October, 2003 but there is no evidence to justify the non-user for the subsequent period. In case of Dunlop India Limited (supra) the Supreme Court has observed in paragraphs 21, 22, and 23 thus:
"21 The word "occupy" used in Section 11(4)(v) is not synonymous with legal possession in technical sense. It means actual possession of the tenanted building or use thereof for the purpose for which it is let out. If the building is let out for residential purpose and the tenant is shown to be continuously absent from the building for six months, the court may presume that he has ceased to occupy the building or abandoned it. If the building is let out for business or commercial purpose, complete cessation of the business/ commercial activity may give rise to a presumption that the tenant has ceased to occupy the premises. In either case, legal possession of the building by the tenant will, by itself, be not sufficient for refusing an order of eviction unless the tenant proves that there was a reasonable cause for his having ceased to occupy the building.
22. The initial burden to show that the tenant has ceased to occupy the building continuously for 6 months is always on the landlord. He has to adduce tangible evidence to prove the fact that as on the date of filing the petition, the tenant was not occupying the building continuously for 6 months. Once such evidence is adduced, the burden shifts on the tenant to prove that there was reasonable cause for his having ceased to occupy the tenanted premises for a continuous period of 6 months.
23. No straitjacket formula can be evolved for determining as to what is the reasonable cause and each case is required to be decided keeping in view the nature of the lease, the purpose for which the premises are let out and the evidence of the parties. If the building, as defined in Section 2(1), is let out for industrial or commercial/business purpose and the same is not used for the said purpose continuously for a period of six months, the tenant cannot plead financial crunch as a ground to justify non-occupation of the building unless cogent evidence is produced by him to prove that he could not carry on the industrial or commercial/business activity due to fiscal reasons which were beyond his control. If the tenant does not use the building for the purpose for which it is let out, he cannot be said to be occupying the building merely because he has put some furniture or articles or machinery under his lock and key.
IN THE HIGH COURT OF BOMBAY
Civil Revision Application No. 753 of 2009
Decided On: 27.04.2012
Gopaldas Khushaldas Parmar Vs.Sanmukhlal P. Shah
Hon'ble Judges/Coram:
G.S. Godbole
1. Heard Mr. Bhagattjee for the Applicant/Petitioner and Mr. Shah for the Respondent at quite some length. This Revision Application takes exception to the Judgment and Order dated 21st July, 2009 passed by the Appellate Bench of the Court of Small Causes at Mumbai (Bandra Branch) in Appeal No. 52 of 2008, whereby the Appeal filed by the Respondent-Tenant was allowed and the Decree for eviction passed by the Trial Court was set aside.
2. Certain facts are not in dispute. The relationship of landlord and tenant is not in dispute. Area and description of the suit premises is also not in dispute. On 22nd November, 2004, the Petitioner had filed RAE Suit No. 58 of 2005 against the Respondent in the Court of Small Causes at Mumbai under Section 33 of the Maharashtra Rent Control Act, 1999 for possession of the suit premises on the ground of reasonable and bonafide requirement and on the ground of non-user which is a ground contemplated by Section 16(1) (n) of the said Act. The Trial Court had negatived the ground of bonafide requirement and that was not pressed into service even in the Appeal and in this Court. Hence, I need not discuss the aspect of bonafide requirement.
3. In so far as ground of non-user is concerned, the relevant averments in the plaint read thus:
The Defendant has not been in use and occupation of the Suit premises from March/April 2002, and he has been absent from the Suit premises for more than six months from September, 2002 to September, 2004, save and except the Defendant had given the suit premises for use to his neighbour during December, 2002 /January, 2003 and during this period the electricity consumption was 216 units and No electricity was consumed during September, 2002 to November, 2002 and further No electricity consumption from March, 2003 till November, 2003 and the Suit premises is not in use for more than six months prior to the filing of the Suit.
4. It is clear from the reading of the Plaint that the Plaintiff has not averred that the suit premises are not being used without sufficient cause.
5. The Respondent filed written statement and denied the allegations regarding non-user. The relevant averments in the written statement of the Respondent are as under:
...The Defendant denies the allegations in the suit paragraph that this Defendant is not in use and occupation of the suit premises for more than six months from September, 2002 to September, 2004 as falsely alleged. This Defendant also does not admit the contention of the Plaintiff that there was no Electricity consumption during the period March, 2003 till November, 2003 as falsely alleged. This Defendant say and submit that non recording of Electricity consumption may be on account of Mechanical failure of the meter and it can not be presumed that this Defendant has not been using and occupying the suit premises during the relevant period....
Thereafter the Respondent has stated as under:
3. As stated in the earlier paragraph this Defendant and his wife used to go to my daughters' place of residence either at Borivali or Dahisar and accordingly in or about end of January, 2003 this Defendant had gone to Borivali along with his wife, who suddenly became ill with a result that we had to prolong our stay. Ultimately she got a heart attack and was admitted to Poornima Hospital at Borivali on 4/3/2003 and discharged on 10/3/2003. As advised this Defendant had to obtain Angiography's report for his wife's ailment and accordingly the same was obtained from Holy Family Hospital at Branch on or about 23rd March, 2003. Thereafter for further treatment she was required to be admitted to Jaslok Hospital, Mumbai on 23rd April, 2003 and was discharged after treatment on 9/5/2003. This Defendant craves leave to refer to and rely upon medical reports in that behalf from Poornima Hospital, Holy Family Hospital and Jaslok Hospital. Taking advantage of absence of the Defendant from the suit premises during the said period, the Plaintiff served upon this Defendant notice dated 17th February, 2003 making allegations, which are false....
Thereafter in paragraph 4 of the written statement, the Defendant has stated thus:
4 It was under the afore stated circumstances that this Defendant and his wife were required to reside alongwith their daughter, who assisted and particularly wife of this Defendant to go to various places including hospitals for the purpose of medical treatment. Still wife of this Defendant is not completely in good health and she is required to take medical treatment for the ailment.....
6. It is, therefore, clear that though there are no specific pleadings in the Plaint that the non-user is without sufficient cause, the written statement has dealt with this aspect elaborately and has tried to give justification for the non-user.
7. During the course of the trial, the Court Commissioner was appointed and he visited the suit premises and submitted report which is on record. The Court Commissioner found that there was only one tube light, one fan and radio in the suit premises. No other household articles were noticed by the Court Commissioner.
8. The parties led evidence and during the course of evidence, the Defendant produced certain medical records showing that the wife of the Defendant had been operated upon for bye-pass surgery. The Plaintiff examined the concerned employee of the electricity suppliers of the Reliance Energy who produced a chart showing consumption of the electricity in the suit premises from March, 2002 to September, 2004. In the cross -examination the Defendant gave certain crucial admissions which are as under:
From March, 2003 to September, 2004, I did not make any complaint written or otherwise about my electricity meter being defective. It is correct that there was no electricity consumption from March, 2003 to September, 2004 in the suit premises.
It is correct that none of the documents filed on record are pertaining to the period from March, 2003 to September, 2004. It is correct that I did not have land line connection during the period March, 2003 to September, 2004. There is no TV in the suit premises till date. It is correct that my wife Suman was admitted in Purnima Hospital from 4.3.2003 to 10.3.2003. Before 4.3.2003, I was residing in suit premises.
The only electrical appliances in suit premises are one tube light, one fan and one radio. I do not propose to examine any neighbor.
9. On the basis of this evidence on record, the learned Judge of Trial Court passed a Decree for eviction and the relevant reasoning of the Trial Court is to be found in paragraphs 23 and 24 which reads thus:
"23 It is pertinent to note that the present case was filed on 22.11.2004. The relevant period for the purpose of the instant suit would therefore, be from June 2004 till the filing of the suit. In order to show that the suit premises were unused throughout this period, the plaintiff has produced on record the extract of record of consumption of electricity bills maintained by Reliance Energy for the period from March 2002 to September, 2004 and the extract from 19.10.2005 to 19.9.2007. These extracts are duly proved by PW No.2 and marked by Exh. 24 and 25. He stated that the extracts produced on record are true copies. He has also identified the signatures thereon. He has unequivocally stated that consumption for the entire period is below average. There is no serious challenge to this testimony except vague suggestions in cross-examination that he has no personal knowledge about this as he has not personally taken readings. However, his cross-examination fails to shake his testimony in any manner.
24 Now, turning to the two statement/extract filed on record at Exh. 24 and 25, bare perusal of the extract at Exh. 24 clearly shows that for the period from March, 2002 to September, 2004 the consumption of electricity was negligible. Similarly, the extract for the period from 19.10.2005 to 19.9.2007 shows that except for the month of September, 2007, throughout the rest of the period, the consumption of electricity was minimal. In fact, in his cross-examination, the Defendant has categorically admitted that there is no electricity consumption from March, 2003 to September, 2004. In his cross-examination, the Defendant has stated that there is only one tube light, one fan, one Radio in the suit premises. There are no other electrical gadgets or appliances in the suit premises- not even a T.V.. Admittedly, also there is no telephone land line in the suit premises. Now it is surprising to note that in para 2 of his cross examination, however, the defendant states that he spent his time during the day by reading a newspaper, going for a walk twice a day and visiting temple daily, watching T.V. And listening to the radio. When there is no T.V. In the suit premises, question arises as to where does he watch T.V.. In view of the contradictory Borey 7/19 statement, it is quite possible that he is not residing in the suit premises where there is no T.V. Available.
The learned Judge noticed that for the first time in argument, the Defendant had put a plea that on account of defective electricity meter there could be less consumption recorded. Consequently the Suit was Decreed and the Decree for eviction was passed.
10. Aggrieved by this Decree the Respondent filed Appeal No. 52 of 2008 in the Appellate Court which has been allowed by the impugned Judgment and Order dated 21st July, 2009. It is pertinent to note that even the Appellate Bench has confirmed the finding of the non-user but the Appellate Bench has held that there was sufficient cause for the Respondent not to stay in the suit premises on account of illness of his wife. The relevant reasoning of the Appellate Court is to be found in paragraphs 19, 22 and 24 which reads thus :
19 From the evidence of the defendant it is clear that the defendant has not seriously challenged that premises has not been used by the defendant as deposed by the plaintiff. It is submitted by the learned advocate for the respondent that it is for the tenant to prove that non user due to reasonable cause. It is further submitted that if the tenant could prove that his non user was due to reasonable cause, no order for ejectment can be passed. It is further submitted that reasonable cause is very wide term and the Court will have to take into consideration particular facts of each case before deciding whether there is a reasonable cause or not.
22 Coming to the facts of the present case, as stated in foregoing paragraphs the sufficient cause which is one of the ingredients of Section has not been pleaded nor established by the landlord.
24 Admittedly defendant and his wife are old aged persons. They have only two daughters who are residing at Borivli and Dahisar respectively. There is no one to look after the defendant and his wife in the suit premises and therefore, as per the version of the defendant, they were residing at their daughters' residence. In para 12 defendant has further stated that due to medical problems of his wife he himself and his wife were residing at 3/B Dwell in C.H.S.Ltd.,, Borivli with his daughter Anjali Nimish Shah, which flat belongs to his son in law.
11. The Appellate Court has ultimately recorded conclusion that though there was non-user of the suit premises, there is nothing on record to show that it was without reasonable cause and consequently the Appeal was allowed and the Suit was dismissed.
12. Mr. Bhagattjee, the learned Advocate for the Petitioner submitted that the entire period of illness of wife of the Respondent was in respect of the year 2003 and there were no documents produced on record to show that the illness was continued beyond 2003. He submitted that though the Plaint did not specifically contain an averment "without reasonable cause", in fact the Respondent's statement proceeds on the basis that there was nonuser for some reasonable cause and once this defence is taken it is for the Tenant to show that there was a sufficient cause for non-user. He strongly relied upon the Judgment of the Supreme Court in the case of Dunlop India Limited vs. A.A.Rahna & Anr. MANU/SC/0555/2011 : (2011) 5 SCC 778 and particularly referred to the observations in paragraphs 21 to 23 of the said Judgment.
13. He also relied on the Judgment of the learned single Judge of (Dr. D.Y. Chandrachud, J. ) in the case of Ravinbhushan Anant Datar & Anr. vs. Waman Dattatray Purohit (2004 Bom R.C. 463).
14. On the other hand the learned Advocate for the Respondent submitted that there was absolutely no pleading in the Plaint that the non-user was without reasonable cause. He submitted that unless it is specifically pleaded by the Plaintiff that the non-user is without reasonable cause, the Court does not get jurisdiction to pass a Decree for eviction on that ground. He relied upon medical papers which were produced below Exh. 35 and contended that the ill health of the Respondent's wife continued till the year 2007 and hence, there was sufficient cause and since there was nobody to look after the wife of the Respondent, her stay with the daughter at Borivali cannot be held to be non-user of the premises without sufficient cause. Strong reliance was placed on the Judgment of the learned single Judge R.D. Tulpule J. In the case of C.R. Shaikh vs. Lilabai D. Rohida & Anr. 1981 Mh.LJ. 437 and paragraph 11 thereof was relied upon.
CONSIDERATION OF SUBMISSIONS:
15. I have carefully considered rival submissions. This is a peculiar case where there is concurrent findings of fact about non-user of the suit premises for a period of six months immediately preceding the date of the suit. The Trial Court has recorded that finding and the Appellate Court even while allowing the Appeal filed by the Tenant has recorded the same finding. I have also independently considered the evidence available on the record. From the Chart recording electricity consumption which is produced at Exh. 24 as has been duly proved by the concerned employee of the electric company, it is clear that for the relevant period from May, 2004 onwards to September, 2004 there was virtually no electricity consumption. Only in the month of August, 2004 one unit was shown to have been consumed. Complete absence of any household articles in the suit premises at the time of visit of the Court Commissioner except that there is only one tube light, one fan and one radio in the suit premises and fact that the telephone connection was disconnected in the year 2002 are all sufficient factors to reach a conclusion which has been reached by the Courts below that there was a non-user of the suit premises for the period of six months prior to the date of filing of the suit.
16. Only question which, therefore, remains for consideration whether there was sufficient cause for non user. A perusal of the
Plaint in the present case shows that the Plaintiff has not pleaded that the non-user was without reasonable cause. I would have normally followed the ratio in the case of C.R. Shaikh (supra) wherein the learned single Judge has observed in paragraph 11 thus:
11. Now, it is needless to say that section 13(1)(k) enables a landlord to recover possession of premises where they have "not been used without reasonable cause," for the purpose for which they had been let "for a continuous period of 6 months immediately preceding the date of the suit." The section therefore emphasises a continuous period of 6 months preceding immediately before the date of the suit. What gives a cause of action therefore, is a continuous non user for a period of 6 months immediately preceding the date of the suit. It is not merely enough that there should be actual non user for a continuous period of 6 months immediately preceding the date of the suit, but that, such non use must be further "without a reasonable cause". Unless therefore, the landlord makes out a case of non-user for a continuous period of 6 months immediately preceding the date of the suit, there is no further question. Even where such a case is made out, a further case has also to be made out that the non use was without any reasonable cause. Both parts of the section therefore, namely, the continuous non use up to the date of the suit and the absence of reason for such non use are material and important.
17. A perusal of the Plaint in the present case shows that the Plaintiff has not pleaded that the non-user was without reasonable cause. I would have normally followed the ratio in the case of C.R.Shaikh (supra) and as has been done by the Appellate Court and the Plaintiff would have been non-suited on the ground of failure to plead non-user without reasonable cause. However, in the facts and circumstances of the case, the Defendant has elaborately pleaded the reasons for non-user. In this case though the Plaintiff did not plead lack of reasonable cause, the Defendant has elaborately pleaded the reasonable cause which according to the Defendant prevented the Defendant from using the suit premises. In view of this it is clear that no prejudice was caused to the Defendant on account of failure of the Plaintiff to plead lack of reasonable cause for non-user. It is in this context that I am not in agreement with the reasoning of the Appellate Court in paragraph 22 of its Judgment that failure to plead lack of reasonable cause was fatal to the case of the Plaintiff.
18. In the facts of the present case, the Defendant has pleaded and has brought evidence on record to show that his wife was suffering from heart ailment and has undergone bye-pass surgery in the year, 2003. However, the relevant period as noted above is from 2004 to November, 2004. There is no pleadings nor any evidence to show that actually the ailment of the wife of the Respondent continued during the relevant period. This crucial fact has been completely overlooked by the Appellate Court. Once non-user was proved, the entire burden of showing reasonable cause for non-user had shifted on the Defendant -Tenant and in my opinion, in that context of the case, the Defendant -Tenant has miserably failed to discharge that burden. Though the Defendant had led sufficient evidence to support the act of non-user till October, 2003 but there is no evidence to justify the non-user for the subsequent period. In case of Dunlop India Limited (supra) the Supreme Court has observed in paragraphs 21, 22, and 23 thus:
"21 The word "occupy" used in Section 11(4)(v) is not synonymous with legal possession in technical sense. It means actual possession of the tenanted building or use thereof for the purpose for which it is let out. If the building is let out for residential purpose and the tenant is shown to be continuously absent from the building for six months, the court may presume that he has ceased to occupy the building or abandoned it. If the building is let out for business or commercial purpose, complete cessation of the business/ commercial activity may give rise to a presumption that the tenant has ceased to occupy the premises. In either case, legal possession of the building by the tenant will, by itself, be not sufficient for refusing an order of eviction unless the tenant proves that there was a reasonable cause for his having ceased to occupy the building.
22. The initial burden to show that the tenant has ceased to occupy the building continuously for 6 months is always on the landlord. He has to adduce tangible evidence to prove the fact that as on the date of filing the petition, the tenant was not occupying the building continuously for 6 months. Once such evidence is adduced, the burden shifts on the tenant to prove that there was reasonable cause for his having ceased to occupy the tenanted premises for a continuous period of 6 months.
23. No straitjacket formula can be evolved for determining as to what is the reasonable cause and each case is required to be decided keeping in view the nature of the lease, the purpose for which the premises are let out and the evidence of the parties. If the building, as defined in Section 2(1), is let out for industrial or commercial/business purpose and the same is not used for the said purpose continuously for a period of six months, the tenant cannot plead financial crunch as a ground to justify non-occupation of the building unless cogent evidence is produced by him to prove that he could not carry on the industrial or commercial/business activity due to fiscal reasons which were beyond his control. If the tenant does not use the building for the purpose for which it is let out, he cannot be said to be occupying the building merely because he has put some furniture or articles or machinery under his lock and key.
19. As observed above by the Supreme Court it shows that reasonable cause depends on facts of each case. The reasonable cause must be for the relevant period of non-user. In this case, the Respondent- Defendant neither pleaded with sufficient particulars as to why he was not using the suit premises during the relevant period from May, 2004 to November, 2004 nor he led any oral or documentary evidence in support of that period. In my opinion, therefore, this was a case where Respondent-Defendant has failed to discharge burden cast on him. This crucial aspect has been completely overlooked by the first Appellate Court. The First Appellate Court has proceeded on assumption that because there was justification for non-user on account of the ailment of the wife of the Respondent till October, November, 2003 such situation continued till the relevant period ending November, 2004. Though the first Appellate Court is a last fact finding Court, in my opinion, in the facts of this case and on the basis of evidence available on record that the Trial Court had recorded a well reasoned finding regarding lack of sufficient cause for non-user and the First Appellate Court could not have reversed the said findings in the absence of any specific pleadings and evidence on the part of the Defendant. In my opinion, therefore, the first Appellate Court has exercised jurisdiction not vested in it by law, warranting interference by this Court under Section 115 of the Code of Civil Procedure, 1908.
20. As a result of the aforesaid discussion, the Civil Revision Application succeeds and is allowed. The impugned Judgment dated 21.07.2009 passed by the Appellate Bench of the Small Causes Court, Bandra Branch, Mumbai in Appeal No. 52 of 2008 is hereby quashed and set aside and the Judgment and Decree dated 08.01.2008 passed by the learned Judge of the Court of Small Causes at Bombay (Bandra Branch), C.R. No. 37 in RAE Suit No. 58 of 2005 is restored. No order as to costs.
21. At this stage, on the oral application of the Advocate for the Respondent operation of this order is stayed for a period of three months from today to enable the Respondent to approach the Supreme Court. It is made clear that if the Respondent does not wish to approach the Supreme Court but desires to apply for time to vacate the suit premises, the Respondent can also do so by filing a separate Civil Application. Rule is made absolute accordingly.
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