[Cites 2, Cited by 0]
Bombay High Court
Harishchandra Yashwant Sonawane And ... vs Chandrakant Narayan Tambe And Ors. on 27 March, 2026
2026:BHC-AS:14754
Megha 2_cra_128_2023 with ia_2177,2178_23_fc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.128 OF 2023
WITH
INTERIM APPLICATION NO.2177 OF 2023
WITH
INTERIM APPLICATION NO.2178 OF 2023
IN
CIVIL REVISION APPLICATION NO.128 OF 2023
Harishchandra Yashwant Sonawane
and Anr. ...Applicants
V/s.
Chandrakant Narayan Tambe and Ors. ...Respondents
________________
Mr. Aniruddha Sapre with Ms. Nirvi Goradia for the Applicants.
Mr. Rohan P. Surve for the Respondents.
________________
CORAM: SANDEEP V. MARNE, J.
RESERVED ON: 18 MARCH 2026.
PRONOUNCED ON: 27 MARCH 2026.
Judgment:
1) The Applicants have challenged the judgment and decree dated 5
December 2022 passed by the learned District Judge-2, Kalyan,
dismissing the Appeal preferred by them and confirming the judgment
and Decree dated 29 December 2009 passed by the learned Joint Civil
Judge, Junior Division, Kalyan in Regular Civil Suit No.227 of 2002
directing their eviction on the ground of non-user of the suit premises
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under Section 16(1)(n) of the Maharashtra Rent Control Act, 1999 (MRC
Act).
2) Respondents-Plaintiffs are the owners and landlords in respect of
building named-Tambe Chawl located at Joshi Baug, Kalyan, bearing
Municipal Ali No.53, House No.253. One room in the said chawl
admeasuring 10ft x 15ft are the 'suit premises'. Mr. Yashwant Sonawane
was inducted as monthly tenant in the suit premises and after his death
his wife-Smt. Vimal Sonawane became tenant. According to the
Plaintiffs the Defendant had kept the suit property in locked condition
in September-1992. Plaintiffs also claim bonafide requirement in
respect of the suit premises. Plaintiffs accordingly served notice dated
15 December 2001 to the Defendant terminating the tenancy, which was
returned with remark 'not claimed, returned to sender'. The Plaintiffs
accordingly filed Regular Civil Suit No.227 of 2002 before the Court of
Joint, Civil Judge, Junior Division, Kalyan, for recovery of possession of
suit premises on the ground of non-user, default in payment of rent and
bonafide requirement. It appears that the Defendant did not appear in
the Suit and therefore, the Suit came to be decreed ex-parte on 19
September 2002. Plaintiffs filed execution proceedings. By issuance of
warrant of possession, Plaintiffs took over possession of the suit
premises. In March-2002 Defendant filed application for setting aside
ex-parte decree and for restoration of the possession. The ex-parte
decree was set aside and the Suit was restored. It appears that the
possession of the suit premises was also restored in favour of the
Defendant. The Defendant filed written statement and resisted the Suit.
The Plaintiffs adduced evidence of two witnesses and relied on several
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documents. The Defendant did not examine herself but led evidence of
five witnesses. After considering the pleadings, documentary and oral
evidence, the Trial Court rejected the grounds of default in payment of
rent and bonafide requirement. However, the Trial Court proceeded to
decree the Suit on the ground of non-use of suit premises for a period
of six months preceding the date of filing of the Suit. The Trial Court
accordingly directed the Defendant to handover possession of the suit
premises to the Plaintiffs by judgment and decree dated 29 December
2009.
3) Original Defendant filed Regular Civil Appeal No. 21 of 2010
before the Court of District Judge, Kalyan, challenging the eviction
decree of the Trial Court. During pendency of the Appeal, the Defendant
passed away and her legal heirs were brought on record. The Plaintiffs
apparently did not file any cross-objections. The Appellate Court has
confirmed the eviction decree on the ground of non-user under Section
16(1)(n) of the MRC Act. Aggrieved by the judgment and order dated 5
December 2022 passed by the Appellate Court, the legal heirs of the
original Defendant have filed the present Revision Application. It
appears that this Court had sent parties for mediation. However, parties
were unable to resolve the dispute through mediation.
4) Mr. Sapre, the learned counsel appearing for the Applicants
submits that the Trial and the Appellate Courts have erroneously
accepted the grounds of non-user. He submits that the Defendant
proved use of the suit premises by examining as many as 5 witnesses,
which included neighbouring tenants. That as against this, Plaintiffs did
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not produce any concrete documentary evidence to prove non-use of
the premises. That the Defendant was merely visiting her son's house
due to old age and medical requirement. That medical condition of the
Defendant was proved by examining the Doctor. That mere occasional
stay by old lady at her son's house, that too for medical treatment,
cannot be treated as continuous non-use of the suit premises. He
submits that the electricity bills for the concerned period were
inadvertently not filed before the Trial Court. He submits that the
Applicants have filed Interim Application No.2177 of 2023 for leading
additional evidence under Order XLI Rule 27 of the Code of Civil
Procedure, 1908 (the Code), by which relevant electricity bills are
produced showing consumption of electricity. He thus, submits that the
Plaintiffs have thoroughly failed to prove non-use of the suit premises
whereas the Defendant has clearly established use of the suit premises.
He submits that the Trial Court and the Appellate Court have
erroneously put the burden on the Defendant to prove use of the
premises when the said burden was on the Plaintiffs. He would pray for
setting aside the orders passed by the Trial and the Appellate Court.
5) Mr. Surve, the learned counsel appearing for the
Respondents/Plaintiffs opposes the Revision Application contending
that there are concurrent findings of non-use recorded against the
Applicants. That there is no perversity in the said findings. That the
Defendant did not examine herself to prove her own use of the suit
premises. That there is gross discrepancy in the claim of ailments
suffered by the Defendant in the testimony of the Doctor and
neighbouring tenants. That the Defendant did not produce electricity
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bills of relevant period and withheld the same from courts below. That
therefore continuous non-use is clearly proved. That DW1 did not
depose in his evidence that Defendant was under treatment of Dr. Dani.
He submits that the entire evidence has been appreciated and re-
appreciated by the Trial and the Appellate Courts for concurrently
upholding the ground of non-user. He accordingly prays for dismissal of
the Civil Revision Application.
6) Rival contentions urged on behalf of the parties now fall for my
consideration.
7) Though eviction of the Defendant was sought on three grounds of
(i) default in payment of rent, (ii) bonafide requirement and (iii) non-
use, the Trial Court has accepted only the ground of non-use under
Section 16(1)(n) of the MRC Act and the grounds of default in payment
of rent and bonafide requirement are rejected. The Appellate Court has
concurrently upheld the ground of non-use of the suit premises by the
Defendant.
8) The Defendant's husband was the original tenant in respect of the
suit premises and the tenancy rights were inherited by the Defendant
upon death of her husband. It was Plaintiffs' pleaded case that since
September-1992 the Defendant had shifted her residence to another
place and she had continuously kept the suit premises locked. The Suit
was filed on 15 June 2002 and under the provisions of Section 16(1)(n)
of the MRC Act, the relevant period was from 15 December 2001 to 14
June 2002. The Defendant herself did not step into the witness box and
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examined her son as DW1, who admitted that his mother-Defendant
was residing with him at Karunpushp Society. He however, claimed that
from 10 November 2001 to 24 September 2003 his mother was sick and
had shifted her residence temporarily with the witness. Thus, non-
presence of the Defendant in the suit premises was virtually admitted
by DW1. Since Section 16(1)(n) of the MRC Act uses the expression
'reasonable cause' the Defendant set up a case that her absence from
the suit premises was owing to the treatment needed due to her
sickness. Once absence from the suit premises was admitted, the burden
of proving non-use by Plaintiffs got discharged and the onus to prove
reasonable cause shifted on the Defendant.
9) Both the Courts have concurrently held that the Defendant has
failed to discharge the onus of proving reasonable cause for non-use. So
far as the excuse of ailments allegedly suffered by the Defendant is
concerned, there appears to be lot of discrepancies in the evidence. The
Defendant examined Dr. Dani (DW3), who did not depose about any
cardiac ailment of Defendant. He apparently did not maintain any
medical record in respect of the Defendant. As against this, DW2, DW4
and DW5 deposed that Defendant was suffering from cardiac ailments.
Dr. Dani did not support the said version of the witnesses. The
Appellate Court has considered the evidence of Defendant's witness on
the issue of 'reasonable cause' and has recorded following findings in
paragraphs 29 to 31:-
29] Here, the case is set up by the defendant through Kavita (DW.2),
Ramesh (DW.4) and Prakash (DW.5) that defendant was suffering
from cardiac ailment does not hold any water as neither it is the
pleading of defendant that defendant is suffering from any cardiac
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ailment nor her treating Dr. Shirish Dani (DW.3) have stated that
defendant was suffering from cardiac ailment. Therefore, the
evidence of Kavita (DW.2), Ramesh (DW.4) and Prakash (DW.5) is
not helpful for defendant to show that defendant had reasonable
cause which prevented her to reside in the suit premises.
30] Now, it remains only with testimony of Harishchandra (DW.1)
and Dr. Shirish Dani (DW.3). From the evidence of Harishchandra
(DW.1) it does not appear that the condition of defendant was so
severe, it was not possible for her to walk without any support. The
evidence of Dr. Shirish Dani (DW.3) reveals that the condition of
defendant was so severe that without support she was not in a
position to balance herself. She was brought to the hospital with
support. Therefore, it appears to me that either Harishchandra
(DW1) is suppressing facts from the Court or Dr. Shirish Dani (DW.3)
has been told to depose these facts to gain sympathy of the Court so
as to bring the case of defendant under "reasonable cause".
31] Dr. Shirish Dani (DW.3) has not maintained any record of
medical examination of defendant. The ailment of arthritis at least
in old age can not be avoided. Therefore, it was quite possible for
defendant to produce on record documentary medical evidence in
support of the evidence of Dr. Shirish Dani (DW.3) that he was
treating doctor of defendant. Harishchandra (DW.1) has not stated
in his evidence that defendant Vimal at any relevant of time was
taking treatment of Dr. Shirish Dani (DW.3). Even there is no
pleading on this count. Therefore, the evidence of both these
witnesses in absence of the evidence of defendant Vimal and
documentary medical evidence, does not inspire confidence.
Therefore, it clearly appears to me that defendant Vimal had
putforth the ground of her ailment on account of arthritis to bring
her case under exception of reasonable cause. Therefore, it appears
to me that defendant miserably failed to prove any reasonable cause
which prevented her to reside in the suit premises. Therefore,
defendant will have to face rigor of this section.
10) Thus, the evidence produced by the Defendant in support of plea
of 'reasonable cause' was riddled with discrepancies. The plea of
'reasonable cause' is rightly not accepted by the Trial and the Appellate
Courts. Mr. Sapre has invited my attention to Interim Application No.
2177 of 2023 in support of his contention that the Defendant actually
possessed electricity bills of the relevant six months period but could
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not produce it before the Trial Court due to inadvertence. The
Defendant has sought to lead additional evidence under Order XLI Rule
27 of the Code. In my view, however, attempt to produce electricity bills
at this belated stage would be an exercise in futility. The Defendant
admitted before the Trial Court about her absence from the suit
premises, but raised the pretext of sickness for establishing reasonable
cause for non-use. Once absence from suit premises is admitted, it is
not necessary to lead additional evidence to prove use of the suit
premises during the relevant six months. It is quite another aspect that
even the concerned electricity bill depicts insignificant/minimum
consumption of electricity and it is difficult to record a conclusive
finding that the suit premises were indeed used during the relevant six
monthly period.
11) After going through the findings recorded by the Trial and the
Appellate Courts, I am unable to notice an element of perversity or
jurisdictional error in those findings. In exercise of revisional
jurisdiction, this Court is not supposed to re-appreciate the evidence
and record conclusions different than the one concurrently recorded by
the Trial and the Appellate Courts upon appreciation and re-
appreciation of evidence. I, therefore, do not find any valid reason to
interfere in the impugned decree of eviction. I am also satisfied that the
Defendant was not in need of suit premises and has fully shifted at her
son's place by keeping the suit premises locked. In that view of the
matter, no interference is warranted in the impugned orders passed by
the Trial and the Appellate Courts.
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12) Civil Revision Application is devoid of any merits. It is
accordingly dismissed.
13) With dismissal of the Revision Application, nothing survives in
the Interim Applications, which are accordingly disposed of.
[SANDEEP V. MARNE, J.]
Signed by: Megha S. Parab
27 March 2026
Designation: PA To Honourable Judge
Date: 27/03/2026 14:31:36
