Deepak S/O Sharadrao Deshpande vs Shri. Vidhyadhar S/O. Damodhar ...
2016 Latest Caselaw 954 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          NAGPUR BENCH, NAGPUR.




                                                 
                          WRIT PETITION    No. 2022 OF 2016




                                                
    Deepak s/o Sharadrao Deshpande
    aged about 65 years,
    Occupation : Sales Tax Practitioner,




                                         
    r/o Kuntewada, Nagjibhai Town,
    Sitabuldi, Nagpur, and
    Plot No. 121, Santaji Society,
                               
    Narendra Nagar,
    Nagpur.                                          .... PETITIONER.
                              
                              VERSUS


    Vidhyadhar s/o Damodhar Kunte - DEAD
      


    thr. L.Rs.
   



    a) Smt Sujata Shrikant Sahastrabuddhe,
       aged Major, r/o Pune.

    b) Smt. Meghana Sanjiv Paranjape





       aged Major, r/o Pune.
       Both through Power of Attorney Holder
       Naresh s/o Dherumal Shambhuwani,
       aged 48 years, Occ.: Business,
       r/o Plot No. 467, Sindhi Colony,
       Khamla, Nagpur.





    1-A] Vadhyaram s/o Dherumal Shambhuwani,
         aged about 60 years, Occ.: Business.

    1-B] Parmanand s/o Dherumal Shambhuwani,
         aged about 48 years, Occupation : Business.

    1-c] Naresh s/o Dherumal Shambhuwani,
         aged about 48 years, Occupation : Business.
         All r/o Plot No. 467, Sindhi Colony,




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          Khamla, Nagpur.                                     ....  RESPONDENTS.




                                                                                     
                                          ....




                                                             
    Shri S.M. Nafde Advocate for the Petitioner.
    Shri M.R. Johrapurkar Advocate for Respondent no. 1-A, 1-B & 1-C.
                                          .....




                                                            
                                             CORAM : S.B. SHUKRE, J.

DATED : 29.03.2016.

ORAL JUDGMENT :

Rule. Rule made returnable forthwith. Heard finally

by consent of parties.

2. By this writ petition, the petitioner has challenged the

legality and correctness of the judgment and decree dated

13.10.2011 passed in Regular Civil Suit No. 406 of 2009 passed by

the Judge, Small Causes Court, Nagpur, and the judgment and

decree dated 24.7.2015 passed in Regular Civil Appeal No. 516 of

2011 by District Judge-5, Nagpur, thereby confirming the

judgment and decree of the trial Court.

3. The petitioner is the original defendant against whom

the respondent, the original plaintiff, had filed a suit for ejectment

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and possession on the ground that the suit premises were not

used for a period of more than six months prior to filing of the suit,

as provided under Section 15(N) of the Maharashtra Rent Control

Act, 1999.

4. The trial Court found that non-user of the suit

premises was proved by the respondent and the petitioner could

not demonstrate any reasonable cause behind the non-user of the

suit premises. Even the first appellate Court by a concurrent

finding concluded that non-user has been proved and no

reasonable cause for non-user of the suit premises was shown by

the petitioner. The first appellate Court, in addition to the

evidence already available on record, took into account the

documentary evidence which was permitted to be brought on

record under Order 41 Rule 27 of Code of Civil Procedure. This

documentary evidence was in the nature of Telephone bills,

Electricity Bills as well as Water Bills. This documentary evidence

was rejected by the first appellate Court for the reasons stated in

paragraph 19 of its judgment. It was found by the first appellate

Court that the Water Bills were issued on average basis and that

the Telephone Bills were no evidence to support the contention

that the suit premises were being used by the petitioner and

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accordingly rejected them. The first appellate Court while

considering the Electricity Bills, observed that these bills were only

for consumption of such use of electricity as 21 units, 25 units, 37

units, 19 units, 3 units, 73 units, 88 units and so on and so forth,

and were not a good indicator of continuous use of suit premises

by the petitioner, and as such, rejected the electricity bills as well.

However, one fact which glaringly comes out from the judgment

and decree of both the Courts below is that none of them has

considered the effect of various suggestions given to the

defendant, i.e. the petitioner, by the respondent during the course

of cross-examination. The suggestions given to the petitioner on

behalf of the respondent are very specific and, in my opinion,

have a material bearing upon the claim of the respondent. Some

of the suggestions are to the effect that the petitioner was

residing in the suit premises as a tenant from the year 2000 to

2008 and was also using the suit premises for some time in a day

for his office purposes. These suggestions have not been

considered properly by both the courts below and, as stated

earlier, would have a significant impact on the suit claim, and so

ought to have been properly considered while appreciating the

evidence available on record by application of the rule of

preponderance of probabilities. That has not been done by either

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of the courts below and, therefore, in my opinion, there is

fundamental error in the judgment of both the courts below. The

judgments and decrees of the Courts below, therefore, need to be

quashed and set aside and the matter deserves to be remanded

back for fresh consideration from the stage of final hearing.

5. In the result, writ petition is allowed. The judgments

and decrees impugned in this petition are hereby quashed and

set aside. The matter is sent back to the trial Court, i.e. Small

Causes Court, Nagpur, for fresh disposal in accordance with law.

Both the sides shall be given an opportunity to submit their final

arguments and thereafter the suit shall be decided in accordance

with law.

Rule is made absolute in above terms. No cost.

JUDGE

/TA/