Bombay High Court
Smt. Kalpana Ram Agawane vs Rajendra Vankatesh Velangi And Ors on 7 August, 2024
2024:BHC-AS:31937
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.539 OF 2022
Kalpana Ram Agawane ....Applicant
V/S
Rajendra Vankatesh Velangi & Ors. . ....Respondents
________
Ms. Pinky Bhansali a/w Mr. U.V. Singh for the Applicant.
Ms. Hetal Patel a/w Mr. Surg Shetye, Mr. Hemanshu Vyas and
Ms. Priyasha Pawar for Respondent No.1.
__________
CORAM: SANDEEP V. MARNE, J.
DATE : 07 AUGUST 2024.
P.C.:
1 This Civil Revision Application is filed challenging the decree of the
Appellate Bench of the Small Causes Court dated 28 July 2022 dismissing
Appeal No.207 of 2018 filed by the Revision Applicant and confirming the
decree dated 9 March 2018 passed by the learned Judge of Small Causes
Court. The learned Judge of the Small Causes Court has decreed RAE Suit
No.391/608 of 2007 filed by Plaintiffs with a direction to the Defendants to
handover possession of the suit premises to the Plaintiffs.
2 I have heard Ms. Bhansali, the learned Counsel appearing for the
Revision Applicant and Mr. Patel, the learned counsel appearing for
Respondents/original Plaintiffs.
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3 After having considered the submissions canvassed by the learned
counsel appearing for parties, there appears to be no dispute to the position
that the original tenant was Late Satish Chandra Das. At the time of filing
of the suit, the said tenant had already passed away. The suit was originally
filed against "heirs and legal representatives of Satish Chandra Das (now
deceased)" and Ms. Menaka @ Meena Satish Chandra Das was impleaded
as Defendant No.2. It appears that by amendment, grand-daughter
Ms. Nivedita Prabhat Chandra Das was added as Defendant No.3 and the
present Revision Applicant Smt. Kalpana Ram Agawane as Defendant
No.4. It appears that Defendant No.2 Menaka @ Meena initially filed
Written Statement resisting the Plaint. After her impleadment, the
Revision Applicant/Defendant No.4 also filed her own Written Statement
claiming that she is the maternal aunt of Defendant No.3 and she has been
residing in the suit premises. It appears that Defendant No.3 also filed a
separate Written Statement pleading that Defendant No.4 is her maternal
aunt and residing in the suit premises. However, it appears that none of the
Defendants led any evidence. In absence of evidence of Defendants, the
Small Causes Court proceeded to decree the suit by judgment and order
dated 9 March 2018 on the grounds of bonafide requirement and non-user.
The Appellate Bench has confirmed the decree of the Trial Court.
4 Perusal of evidence led by Plaintiffs would indicate that electricity
bills during 16 October 2006 to 16 April 2007 were produced which is the
period preceding six months before the date of filing of suit. It appears that
the electricity consumption is shown as 'nil' in the bills pertaining to the
period from 4 September 2006 till 5 July 2007. Ms. Bhansali would submit
that since Defendant No.3 was intermittently travelling to New Zealand, it
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is possible that there was '0' electricity consumption at sometimes. Upon
being queried as to how the electricity consumption can be '0' if the
Revision Applicant continued to stay in the suit premises, Ms. Bhansali
would clarify that the Revision Applicant started residing in the suit
premises only after filing of the suit. This in fact proves the allegation of
non-user for six months preceding filing of the suit. In my view therefore,
in absence of any evidence on the part of Defendant No.4/ Revision
Applicant, it cannot be accepted she is either tenant or that she resided
during the relevant period in the suit premises. It is conclusively proved
that none was residing in the suit premises during 16 October 2006 to 16
April 2007 and the ground of non-user is therefore correctly held to be
proved. Thus non-user of the premises for continuous period of six months
preceding the date of filing of the suit was clearly proved.
5 No evidence is produced to prove that the Revision
Applicant/Defendant No.4 is the matrimonial aunt of Defendant No.3. It is
also not proved by any of the Defendants as to how Defendant No.4 could
have occupied the suit premises or claimed tenancy rights in respect of suit
premises.
6 In my view therefore, the ground of non-user is clearly proved. So
far as the ground of bonafide requirement is concerned, concurrent
findings are recorded by both the Courts below.
7 I therefore do not find any ground to interfere in the impugned
decrees. Revision Application is accordingly rejected.
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8 After the order is pronounced, Ms. Bhansali would submit that there
was oral understanding between the learned counsel for not proceeding
with the execution proceedings during pendency of the Revision
Application, which is recorded in the order dated 21 December 2022. She
would pray for continuation of the said arrangement for a period of eight
weeks. The request is opposed by the learned counsel appearing for the
Respondents/original Plaintiffs on the ground that the amount of interim
compensation has not been deposited by the Revision Applicant since
March 2021. Be that as it may. Even if the issue of non-deposit of interim
compensation is to be momentarily ignored, considering the fact that the
Revision Applicant has failed to establish her relationship with deceased
tenant and the suit premises being found locked continuously for a period
of six months before filing of the suit. I am not inclined to continue the
interim arrangement. The request is therefore rejected.
(SANDEEP V. MARNE, J.)
Digitally
signed by
SUDARSHAN
SUDARSHAN RAJALINGAM
RAJALINGAM KATKAM
KATKAM Date:
2024.08.09
20:25:23
+0530
