Dismissed

Mrs. Ratanbai Sadharilal Gupta v. Mr. Annarao Baloba Gaikwad (Since Deceased through His Heirs) and Others

Bombay HC2 Sept 2013CRA/458/2013

Case brief

AI extract

What is this about?

The Single Judge disposed of a Civil Revision Application challenging eviction decrees. The court dismissed the application, upholding the finding that tenants permanently shifted to Pune and premises were unused. A stay on execution was ordered upon condition of a verified undertaking.

What did the court decide?

Stay on execution of decree for 8 weeks conditional upon filing of undertaking within 3 weeks.

Mrs. Ratanbai Sadharilal Gupta Vs Mr. Annarao Baloba… — Landlord and Tenant | Bombay HC (2013)

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1.cra.458.13

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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CIVIL REVISION APPLICATION NO. 458 OF 2013

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Mrs. Ratanbai Sadharilal Gupta Vs.

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.. Petitioner

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Mr.Annarao Baloba Gaikwad

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Since deceased through his heirs and L.Rs 1A. Mrs. Sushilabai Annarao Gaikwad & Others .. Respondents

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Mr. Surel S.Shah, for Petitioner.

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Ms.Geeta Mulekar, for Respondent Nos. 1A to 1J.

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CORAM : R.G.KETKAR, J . DATE : 02^nd September, 2013

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P.C. :

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. Heard Mr. Surel S.Shah, learned Counsel for the petitioner

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and Ms.Geeta Mulekar, learned Counsel for the respondent Nos. 1A to 1J at length.

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By this application under section 115 of the Code of Civil Procedure, 1908 (for short 'C.P.C.), the original defendant No.1 has challenged the judgment and decree dated 28/02/2005 passed by the learned Joint Civil Judge, Senior Division, Solapur in Regular Civil Suit No. 40 of 1996 as also the judgment and decree dated 25/02/2013 passed by the learned Adhoc District Judge 3, Solapur in Civil Appeal No. 112 of 2005. The trial Court decreed the suit instituted by the first respondent on the grounds namely i) that the first respondentplaintiff has proved that the defendants are willful defaulters in payment of rent ii) that the defendants have acquired suitable alternate

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accommodation iii) that the defendants have kept the suit premises locked and unused continuously for a period of 6 months preceding the filing of the suit iv) the plaintiff has proved that he requires the suit premises bonafidely for his personal use and occupation. As against this, the Appellate Court confirmed the decree on two grounds namely i) that the defendants are willful defaulters in payment of rent and ii) that the plaintiff has proved that the defendants have kept the suit premises locked and not used continuously for a period of 6 months preceding filing of the suit.

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In support of this petition, Mr.Shah submitted that the Courts below committed serious error in decreeing the suit on the ground of arrears of rent. He submitted that the notice of demand was issued on 30/10/1995 demanding arrears of rent from 01/07/1995 to 31/12/1995. He submitted that the defendants have paid Rs.500/ on 15/09/1997 and Rs.220/ on 18/06/2001. He submitted that the notice on which the suit is instituted was invalid. The arrears of rent were not for more than 6 months. In such circumstances, the Courts could not have decreed the suit on that ground. In support of his submission, he relied upon the decision of this Court in case of Smt.Aishibibi Abdul Gafoor Shaikh Vs. Shri Mohomed Yusuf Abdul Razak Ravi and others, 1996 (1) ALL MR 176. As far as other ground namely non user of the suit premises is concerned, he invited my attention to the assertions made in the plaint and in particular, paragraph 4

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wherein, it is vaguely alleged that the suit premises are locked for more than one year. He also invited my attention to the findings recorded by the learned District Judge in paragraph 18 and submitted that the plaintiff did not establish the said ground. He therefore, submitted that the application requires consideration.

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On the other hand, Ms.Mulekar invited my attention to the admissions given by the defendant No.1 in the cross examination as also the admissions given by the cross examination by D.W.2, power of attorney and submitted that from the admissions given by these witnesses, it is clear that all the defendants have permanently shifted to Pune and they are not residing at the suit premises.

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5 I have considered the submissions made by the learned Counsel appearing for the parties. I have also perused the material on record. As noted earlier, the Appellate Court has passed the decree on two grounds namely, arrears of rent and non user of the suit premises. Even if I accept the submissions of Mr.Shah that the demand notice dated 30/10/1995 was not valid and consequently, the Courts below could not have decreed the suit on the ground of arrears of rent. Nonetheless, from the perusal of the evidence of defendant's witness and in particular, admissions given in the cross examination by defendant No.1 and D.W.2, it is more than clear that all the defendants have shifted permanently to Pune. In the voters list, their names are shown at the Pune. The ration card is also of Pune. The Courts

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below, after appreciating the evidence on record, have concurrently held that the defendants have shifted permanently to Pune. It is also pertinent to note that the suit notice was also served on the defendants at Pune address. The Courts below rightly held that the plaintiff has established the ground of non user. In view thereof, no case is made out for invocation of power under section 115 of the C.P.C. In the result, the application fails and the same is dismissed.

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At this stage, Mr.Shah orally applies for stay of this order for a period of 8 weeks from today. He states that within 3 weeks from today, the petitioner and all the adult members will file undertaking in this Court after giving advance copy to other side incorporating therein i) that the petitioner is in possession and nobody else is in possession of the suit premises ii) that the petitioner has neither created third party interests nor parted with possession of the suit premises iii) that the petitioner hereinafter, will neither create third party interests or part with possession of the suit premises.

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Subject to giving undertaking within 3 weeks from today,

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the decree shall not be executed for a period of 8 weeks from today.

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Order accordingly.

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(R.G.KETKAR, J.)

Mrs. Ratanbai Sadharilal Gupta v. Mr. Annarao Baloba Gaikwad (Since Deceased through His Heirs) and Others

Case brief

What is this about?

What did the court decide?

Mrs. Ratanbai Sadharilal Gupta v. Mr. Annarao Baloba Gaikwad (Since Deceased through His Heirs) and Others

Case brief

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What did the court decide?

What the court decided

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