Bombay High Court
Tukaram Moraba Jaunjal(Decd.) By Lh. ... vs Mangala Balkrishna Patwardhan And Ors on 10 July, 2025
Author: N. J. Jamadar
Bench: N. J. Jamadar
2025:BHC-AS:28254
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Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3780 OF 1998
Tukaram Moraba Jaunjal (since deceased)
1. Dattatraya Tukaram Jaunjal (since
deceased) through his LRs
a. Laxmibai Dattatraya Jaunjal
SANTOSH b. Sunil Dattatraya Jaunjal
SUBHASH
KULKARNI c. Ravindra Dattatraya Jaunjal
Digitally signed by
SANTOSH SUBHASH 2. Shrikant Tukaram Jaunjal
KULKARNI
Date: 2025.07.11
10:18:32 +0530 3. Vasant Tukaram Jaunjal
3A. Sujata Vasant Jaunjal
3B. Sandip Vasant Jaunjal ...Petitioners
3C. Rohit Vasant Jaunjal
Versus
1. Mangala Balkrishna Patwardhan
2. Vasant Balkrishna Patwardhan
3. Mukund Balkrishna Patwardhan
...Respondents
Mr. Avinash Patil, for the Petitioners.
Mr. Anilkumar Patil, a/w Zeel Jain and Digvijay Patil, for
Respondent Nos.1 and 2.
CORAM: N. J. JAMADAR, J.
RESERVED ON : 1st JULY, 2025
PRONOUNCED ON : 10th JULY, 2025
JUDGMENT:
-
1. Rule. Rule made returnable forthwith and, with the
consent of the learned Counsel for the parties, heard finally.
2. This petition under Article 227 of the Constitution of India
assails the legality, propriety and correctness of a judgment
and decree dated 30th June, 1998 passed by the learned
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Additional District Judge, Sangli, in Regular Civil Appeal No.105
of 1989, whereby the appeal preferred by the petitioners -
defendant Nos.1a to 1c against a decree of eviction passed by
the Trial Court in RCS/401/1985 came to be dismissed by
affirming the said decree.
3. The background facts can be stated in brief as under:
3.1 The respondents - plaintiffs are the owners of the shop
premises. Tukaram Morba Jaundal, the original defendant-the
predecessor-in-title of the petitioners, was a monthly tenant of
the suit shop situated at Suit No.463/12 at Maruti Square,
Gaon Area, Sangli ("the suit shop"). The original defendant was
running a Sweet Mart in the suit shop.
3.2 A suit for eviction of the defendant came to be instituted
with the assertion that the suit shop was let out to the original
defendant only for the purpose of carrying on the business of
Sweet Mart, the defendant had kept the suit shop locked
without any cause for over 15 months prior to the institution of
the suit. A notice was addressed to the defendant on 27 th May,
1985 thereby terminating the tenancy of the defendant with
effect from 30th June, 1985. Despite service of notice the
defendant neither delivered the possession of the demised
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premises. Nor gave reply to the said notice. Hence, the suit for a
decree of eviction and arrears of rent.
3.3 The defendants resisted the suit by filing a written
statement. It was categorically denied that the suit shop was let
out only for the purpose of carrying on the business of Sweet
Mart. According to the defendant, the suit shop was let out to
carry on any business. The defendant and his family members
had been carrying on diverse businesses, at various point of
time, in the suit shop to the knowledge of the plaintiffs, for over
50 years. While denying that there was non-user of the suit
shop, it was contended that the wife of the defendant had taken
ill and, eventually, passed away, and, thus, the defendant was
required to keep suit shop closed. Consequently, there was no
non-user without reasonable cause.
3.4 The Trial Court, after appraisal of the evidence and
material on record, returned the finding of non-user in favour of
the plaintiffs - landlord. The fact that there was no electricity
consumption from June 1984 till July 1985 and there was no
reply to the pre-suit notice (Exhibit-19) alleging non-user of the
suit shop by the defendant, weighed with the learned Civil
Judge. On the aspect of the cause ascribed by the defendant for
the non-user, the learned Civil Judge was of the view that
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though the explanation that on account of the illness and
eventual death of the defendant's wife, the shop premises was
kept closed, appeared reasonable yet the said explanation was
not sufficient to account for the non-user for over one and half
year preceding the institution of the suit. Thus, in the view of
the Trial Court, the defendant failed to discharge the onus of
proof of a reasonable cause for the non-user.
3.5 Being aggrieved, the tenants preferred an appeal before
the District Court. By the impugned judgment and order, the
learned Additional District Judge dismissed the appeal
concurring with the view of the Trial Court. The learned
District Judge was of the view that the explanation offered by
the defendants for the non-user was not acceptable. Moreover,
in view of the categorical contentions in the written statement,
that the defendant was running diverse businesses in the suit
shop alongwith his family members, the inability of the
defendant to run the suit shop for a brief period, even if taken at
par, does not constitute justifiable explanation as the other
members of the family could have used the suit shop.
3.6 Thus, both the Courts have recorded concurrent findings
of facts that there was non-user of the suit shop for a
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continuous period of six months immediately preceding the
institution of the suit without any reasonable cause.
4. Being aggrieved, the defendants - tenants have invoked
the writ jurisdiction.
5. I have heard Mr. Avinash Patil, the learned Counsel for the
petitioners, and Mr. Anilkumar Patil, the learned Counsel for
the respondents, at some length. The learned Counsel for the
parties took the Court through the pleadings, documents and
material on record.
6. Mr. Avinash Patil, the learned Counsel for the petitioners,
took a slew of exceptions to the impugned judgment. Mr. Patil
would urge that the learned Trial Judge as well as the learned
District Judge have committed an error in law in passing the
decree of eviction on the ground of non-user without satisfying
themselves that the non-user was for "continuous period of six
months" and "without a reasonable cause". In the issues
framed by the learned Civil Judge, the word "continuous" is
conspicuous by its absence. Thus, the learned Civil Judge
misdirected himself in decreeing the suit without appreciating
the evidence from the perspective as to whether there was,
"continuous non-user" for the period of six months immediately
proceeding the suit. Secondly, the courts below have fallen in
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error in not properly appreciating the reasonability of the cause
for the non-user ascribed by the defendants. The consideration
by the courts below on the said aspect is extremely
unsatisfactory, urged Mr. Avinash Patil.
7. To lend support to the aforesaid submissions, Mr. Avinash
Patil placed reliance on the judgments of this Court in the cases
of Ashok V. Chavan and others vs. Baburao Sakharam Bhagat 1
and C. R. Shaikh vs. Lilabai D. Rohida and another2.
8. Per contra, Mr. Anilkumar Patil, the learned Counsel for
respondent Nos.1 and 2, would urge the concurrent findings of
facts recorded by the courts below are not open for interference
in exercise of the writ jurisdiction under Article 227 of the
Constitution of India. On the basis of the evidence adduced by
the parties, according to Mr. Anilkumar Patil, a very strong case
of non-user was made out. The learned Additional District
Judge had considered both the aspects of continuous non-user
and the reasonability of the cause for non-user. In these
circumstances, this Court, in exercise of the supervisory
jurisdiction under Article 227 of the Constitution of India, may
not interfere with the concurrent findings of facts, urged Mr.
Anilkumar Patil.
1 2002(6) Bom. CR 736.
2 1981 Mh.LJ 437.
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9. I have given careful consideration to the submissions
canvassed across the bar and the material on record. Section
13 of the Bombay Rents, Hotel and Lodging House Rates
(Control) Act, 1947 ('the Rent Act, 1947') began with a non-
obstante clause to give effect to the policy of the legislature i.e.
prevent unreasonable eviction of the tenants. Section 13(1) thus
incorporated the statutory grounds of eviction which entitled
the landlord to recover possession of the premises if he satisfied
the Court the existence of the specified grounds. Clause (k) of
Section 13(1) incorporated cesser of user of the demised
premises for the purpose for which it was let out, as a ground
for eviction:
"13. When landlord may recover possession:
(1) Notwithstanding anything contained in this Act but subject
to the provisions of sections 15 and 15A, a landlord shall be
entitled to recover possession of any premises if the court is
satisfied-
.........
(k) that the premises have not been used without reasonable
cause for the purpose for which they were let for a continuous
period of six months immediately preceding the date of the suit;
or ....."
10. From the phraseology of Section 13(1)(k) to obtain a decree
of eviction the following ingredients were required to be satisfied;
(a) non-user of the premises for the purpose for which the
premises were let out; (b) for a continuous period of six months
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prior to the date of institution of the suit; (c) non-user should be
without reasonable cause.
11. In the case of Nilesh Laxmichand and anr. vs. Shantaben
Purushottam Kakad (since deceased) by LRs.3, the Supreme
Court expounded the import of Section 16(1)(n) of the
Maharashtra Rent Control Act, 1999, which is pari materia with
Section 13(1)(k) of the Rent Act, 1947. The Supreme Court
enunciated the elements which were required to be established
for eviction on the said ground under Section 16(1)(n) as under:
"23. The following elements must be established under
Section 16(1)(n)--the premises must have been let out for a
particular purpose; there must be non-user by the tenant for
the purpose; the non-user must be without reasonable cause;
the non-user must be for a continuous period of six months
immediately preceding the date of the suit."
12. In the case of Vora Rahimbhai Haji Hasanbhai Popat vs
Vora Sunderlal Manilal & Anr4 the Supreme Court expounded
the object and scheme of the aforesaid clause. It was, inter alia,
observed that the scheme of the Bombay Rents, Hotel and
Lodging House Rates (Control) Act, 1947, as is evincible from
the Preamble, was to consolidate the law relating to the control
of rents and repairs of certain premises, of rates of hotels and
lodging houses and of evictions. The control had to be brought
3 2019(6) SC 542.
4 1985(4) SCC 551.
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in because of the scarcity of accommodation in the cities. If
this was the Preamble of the Act it cannot be accepted that a
tenant may take a premises on rent and keep it locked for years
together without using it in the absence of a reasonable cause.
The intendment of the legislature could be carried out only
when the premises is used and not kept vacant for years
together.
13. With the aforesaid clarity as to the ingredients to be
satisfied and the object of Section 13(1)(k) of the Rent Act, 1947,
reverting to the challenge sought to be mounted to the
impugned judgment by Mr. Avinash Patil, on the count of
absence of fulfillment of the ingredient of the non-user for
"continuous period" it would be necessary to first consider the
averments in the plaint. The plaintiffs categorically asserted
that the original defendant had kept the suit shop locked for
over 15 months preceding the institution of the suit without any
reason. Mr. Avinash Patil would urge that, there was no
pleading on both the points i.e., non-user for a continuous
period of six months and without reasonable cause.
14. I find it difficult to accede to the submission of Mr.
Avinash Patil for the reasons more than one. Firstly, the
plaintiffs have averred that the suit shop has been kept locked
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for over 15 months. It was further asserted that the suit shop
was closed without any reason. These assertions of the plaintiffs
were sufficient to satisfy the requirement of pleadings. A
statement that the suit shop was kept locked for over 15 months
without any reason, subsumes in its fold both the elements.
15. Reliance by Mr. Avinash Patil on the judgment of the
learned Single Judge of this Court in the case of Ashok Chavan
(supra) does not seem to advance the cause of the defendants.
In the said case, the landlord had neither pleaded nor adduced
any evidence to even suggest that the demised premises were
kept locked for more than six months by the defendant, "without
any reasonable cause". Thus, this Court held that no cause of
action arose for invoking the provisions contained in Section
13(1)(k) of the Rent Act, 1999.
16. The decision of a learned Single Judge of this Court, in the
case of C. R. Shaikh (supra) on which reliance was placed by Mr.
Avinash Patil is also of no assistance to the defendants as in the
said case also there was no pleading on the elements of
continuous non-user and without reasonable cause. The
observations in paragraph 12 of the said judgment make this
position absolutely clear. They read as under:
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"12. If we analyse the plaint in the light of the requirement of
the section, it will be seen that the words "without reasonable
cause" are wholly absent in the plaint. If that is so, I do not
think that it could be said that the plaintiff had made out a
case under section 13(1)(k) so that, the tenant could be required
to meet such a case. It is also not shown and not alleged that
the non use of the premises had been for a continuous period of
six months immediately preceding the date of the suit. The
section emphasises the situation, and a continuation of a
situation and its existence at the date of the suit. If such a
situation and its existence for a continuous period of 6 months
does not exist at the time when the suit is launched, then the
cause of action does not accrue. Even if the tenant has not used
the premises for a period of 6 months some time before the
filing of the suit, or for more period, that would not give a
landlord a cause of action. That state of affairs must continue
till the date of the filing of the suit. If therefore, a tenant who
had not used the premises for a long period, but had started
using them before the date of the suit, the cause of action is
gone. It is therefore necessary to emphasis the words
"continuous" and "immediately preceding the date of the suit"
occurring in clause (k) of sub-section (1) of section 13 which
only bring out clearly that the cause of action claimed is on that
account. As I pointed out, this must be further supported by an
allegation that the non use was without reasonable cause. As
pointed out, neither of these two aspects are clearly present in
the plaint.
17. The fact-situation in the case at hand is materially
distinct. There is adequate pleadings on both the elements. In
addition, it is necessary to note that in the written statement,
the defendant did not categorically controvert the claim of the
plaintiffs that the suit shop had not been used for the purpose
of business for over 15 months. An explanation was sought to
be offered that on account of the ill-health and the eventual
demise of the wife of the original defendant - tenant, the latter
was compelled to keep the suit shop shut. Moreover, the
plaintiffs had adduced unimpeachable evidence in the form of
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the non-consumption of electricity in the suit shop since June,
1984 to July, 1985; the month preceding the institution of the
suit.
18. In the light of the aforesaid nature of the defence of the
defendants, coupled with a very strong evidence in the form of
non-consumption of the electricity in the suit shop for the
period of June, 1984 to July, 1985, the plaintiffs discharged the
onus of proof of non-user of suit shop for the statutory period
preceding the institution of the suit. It was then for the
defendants to prove animus rivertendi and corpus possessionis.
19. In the case at hand the defendant attempted to wriggle out
of the consequences of non-user by contending that as his wife
suddenly fell ill and, eventually, passed away, he was forced to
keep the suit shop closed. Both the Trial Court as well as the
Appellate Court, have noted that the wife of the original
defendant was suffering from jaundice and passed away on 28 th
February, 1985. She was hospitalized for a fortnight before her
death. Though both the Courts were persuaded to accept the
reasonability of the explanation yet the Courts found the said
explanation was not sufficient to account for the non-user for a
long period commencing from June, 1984 till the institution of
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the suit, as was evident from the non-consumption of the
electricity in the suit shop.
20. The aforesaid inferences drawn by the courts below, based
on appreciation of evidence, cannot be said to be unsustainable.
Even if the possible period of hospitalization, preceding the
death of wife of the defendant, and the time required for the
rites and rituals thereafter, is liberally construed, the
explanation does not satisfactorily account for the non-user.
The non-user of the suit shop prior to, and post, the demise of
the wife of the defendant, for a considerable period dents the
reasonability of the explanation.
21. In any event, this Court in exercise of the supervisory
jurisdiction under Article 227 cannot interfere with the findings
of facts recorded by the courts below. The jurisdiction is
circumscribed by the limit of ensuring that the courts and
tribunals act within the bounds of their authority. In exercise of
supervisory jurisdiction, this Court cannot correct mere errors
of fact by examining and re-appreciating the evidence. The
power of supervision under Article 227 cannot be invoked to
correct an error of fact which only a superior court can do in
exercise of the statutory power of the Court of appeal. The High
Court cannot convert itself into a Court of Appeal. [Babhutmal
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Raichand Oswal vs Laxmibai Raghunath Tarte 1975(5) SCC
858].
22. The conspectus of aforesaid consideration is that this
Court in exercise of its supervisory jurisdiction does not find
such infirmity in the impugned judgment as to warrant
interference. The writ petition, therefore, deserves to be
dismissed.
23. Hence, the following order:
:ORDER:
(i) The petition stands dismissed with costs.
(ii) Rule stands discharged.
[N. J. JAMADAR, J.]
At this stage, the learned Counsel for the petitioners seeks
four months time to vacate the suit shop.
As the petitioners were running a commercial
establishment the prayer is justifiable.
Four months time is granted to the petitioners to vacate
the suit shop subject to furnishing usual undertaking within a
period of four weeks from today.
[N. J. JAMADAR, J.]
