Bombay High Court
Mrs. K.D. Paithankar (Since Deceased) ... vs Mrs. Veera B. Mittal on 24 March, 2025
Author: Madhav J. Jamdar
Bench: Madhav J. Jamdar
2025:BHC-AS:14715
03-WP-3713-2000.doc
Arjun
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.3713 OF 2000
K. D. Paithankar (Since Deceased) By Heirs ...Petitioners
ARJUN
VITTHAL 1a) Dr. Uttara Mangesh Shukla & Anr.
KUDHEKAR Versus
Digitally signed by
ARJUN VITTHAL Veera B. Mittal ...Respondents
KUDHEKAR
Date: 2025.03.30
13:07:38 +0530 Heir and Legal Representative of
Tarasingh Dilipsingh Katwal (Since Deceased)
1A. Abhisha Mital & Ors.
_______________________________________________________________
Ms. Vasanti S. Dighe, for the Petitioners.
Mr. Kunal Mehta a/w Smruti Kanade i/b Negandhi Shah &
Himayatullah, for the Respondents.
_______________________________________________________________
CORAM: MADHAV J. JAMDAR, J.
DATED: 24 MARCH 2025
JUDGMENT:
1. Heard Ms. Dighe, learned Counsel appearing for the Petitioners
and Mr. Mehta, learned Counsel appearing for the Respondents.
2. By the present Writ Petition filed under Article 227 of the
Constitution of India the challenge is to the legality and validity of the
Judgment and Decree dated 24th March 2000 passed by the learned
Appellate Bench of the Small Causes Court, Mumbai in Appeal No.214
of 1994 as well as to the Judgment and Decree dated 29th October
1993 passed by the learned Judge, Small Causes Court, Mumbai in RAE
Suit No.1588 of 1979.
3. At this stage, only it is required to be noted that although the said
03-WP-3713-2000.doc
RAE Suit No.1588 of 1979 has been filed on the ground of bonafide
requirement under Section 13(1)(g) of the Bombay Rents, Hotel and
Lodging House Rates Control Act, 1947 ("Bombay Rent Act") as well as
on the ground of non-user, however, in this Writ Petition, Ms. Dighe,
learned Counsel appearing for the Petitioners fairly submitted that the
only challenge raised is to the dismissal of the Suit on the ground of
non-user.
4. It is the main submission of Ms. Dighe, learned Counsel
appearing for the Petitioners that during the relevant period of August
1978 to February 1979 the Defendant was not using the premises. The
user has started after the filing of the Suit. She submits that few visits
from Dehradun to the suit premises will not be relevant in a Suit for
eviction on the ground of non-user under Section 13(1)(k) of the
Bombay Rent Act. She therefore submitted that the concurrent decrees
passed by both the Courts be set aside and the Respondents be directed
to be evicted for non-user of the suit premises which is a ground for
eviction under Section 13(1)(k) of the Bombay Rent Act.
5. On the other hand, Mr. Mehta, learned Counsel appearing for the
Respondents submitted that the mother of the Defendant passed away
on 15th August 1978 in the suit premises. The Suit has been filed in
February 1979 and therefore the relevant period is August 1978 to
February 1979. He submitted that during the said period there is ample
03-WP-3713-2000.doc
documentary evidence showing that the premises are being used by the
Defendant.
6. As the Suit filed for eviction is under Section 13(1)(k) of the
Bombay Rent Act, the same is reproduced herein below ready
reference :-
"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; "
(Emphasis added)
Thus, to prove the ground of eviction of non-user under Section 13(1)
(k) of the Bombay Rent Act, the Plaintiff - Landlord has to prove that
the suit 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. As the Suit is filed in
February 1979, the Petitioner - Landlord has to prove that the suit
premises were not used for the period of August 1978 to February 1979.
If the Petitioner is successful in proving the same, then the burden is on
the Respondent - Tenant to prove that the said non-user is for a
reasonable cause.
03-WP-3713-2000.doc
7. Perusal of the record shows that the Original Defendant was
Tarasingh i.e. father of the Defendant, who passed away in the year
1976 at Dehradun. It is an admitted position that the mother of the
Defendant passed away in the suit premises on 15th August 1978. It is
also an admitted position that the mother of the Defendant was a
cancer patient and she was taking treatment at Tata Memorial Hospital
in Mumbai.
8. Perusal of the record further shows that the rent receipts are
issued by the Plaintiff - Landlord in the name of the Original Tenant -
Tarasingh i.e. father of the Defendant on 1st September 1978 and 1st
October 1978. The receipt dated 1st October 1978 is for the month of
September 1978 and receipt dated 1st September 1978 is for the month
of August 1978. Perusal of the record further shows that the Defendant
has produced voluminous documentary evidence such as rent receipts,
birth certificates, electricity bills, telephone bills, etc for showing that
the premises were used during the relevant period.
9. The learned Trial Court as well as the learned Appellate Court,
after appreciating the evidence on record, has held that for the crucial
period of August 1978 to February 1979, ample evidence is on record to
show that the premises was used by the Defendant. The said evidence
on record shows that for the period of August 1978 and September
1978 rent has been paid and the same has been accepted by the
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Petitioner - Landlord. Even the telephone calls have also been made
from the telephone which has been installed in the suit premises during
the period from February 1978 to April 1979. There are various
telephone calls made from the said telephone and consumption of
electricity is also seen during the said period.
10. Ms. Dighe, learned Counsel has very heavily relied on the Bailiff's
report, regarding service of the suit summons, wherein it has been
recorded that the suit premises has been found in locked condition.
However, as noted earlier for the purpose of proving ground of non-
user available under Section 13(1)(k) of the Bombay Rent Act, the
relevant period is 6 months period before the filing of the Suit. Thus,
the said contention is irrelevant.
11. Thus, perusal of the record shows that both the Courts, after
appreciating the evidence on record, concurrently held that the
Petitioners i.e. Plaintiff failed to prove the ground of non-user. There is
nothing to show that the finding recorded by the learned Trial Court as
confirmed by the learned Appellate Court is contrary to the evidence on
record.
12. Accordingly, no case is made out for interference under the writ
jurisdiction of this Court under Article 227 of the Constitution of India.
The Writ Petition is dismissed, however, with no order as to costs.
[MADHAV J. JAMDAR, J.]
