Dismissed

Mrs. Sarojini Manohar Shringarpure and Ors. v. Shri Suhas Gopinath Date and Anr.

Bombay HC16 Sept 2013CRA/580/2013

Case brief

AI extract

What is this about?

The High Court dismissed a civil revision application by original defendants challenging the Small Causes appellate court's decree evicting them for non-user of the suit premises under the Bombay Rents Act, finding the lower court's decision supported by evidence and admissions.

What did the court decide?

Civil revision application dismissed; interim order for possession continued for 12 weeks subject to undertaking.

Mrs. Sarojini Manohar Shringarpure and Ors. Vs Shri Suhas… — Landlord and Tenant | Bombay HC (2013)

¶1

cra-580-13.sxw

¶2

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.580 OF 2013

¶3

Mrs Sarojini Manohar Shringarpure & Ors. versus Suhas Gopinath Date & Anr.

¶4

: Applicants

¶5

: Respondents

¶6

Mr. P. G. Lad for the Applicants

¶7

Mr. P. S. Dani a/w Mr. Vikram Walawalkar i/b M/s. Shaunak Satpute & co. for the Respondent Nos.1 & 2

¶8

CORAM:- R. G. KETKAR, J DATED :- 16^th SEPTEMBER, 2013.

¶9

P.C.

¶10

1 Heard Mr. Lad, learned counsel for the applicants and Mr. Dani, learned counsel for the respondent Nos.1 and 2, at length.

¶11

2 By this Civil Revision Application filed under Section 115 of the Code of Civil Procedure 1908 (in short CPC), the original defendants have challenged the judgment and decree dated 20-4-2013 passed by the Appellate Bench of the court of Small causes court in Appeal No.460 of 2005. By that order, the appellate court has quashed and set aside the judgment and decree dated 24-3-2005 passed by the learned judge Court Room no.16 of the court of Small Causes in RAE Suit No.1882 of 1985.

¶12

The Appellate court decreed the suit instituted by the respondents on the ground of non user of the suit premises under Section 13(1)(k) of the

mmj

1/7

cra-580-13.sxw

Bombay Rents, Hotel and Lodging House Control Act, 1947 (in short “act”). The appellate court directed the Applicants to hand over vacant and peaceful possession of the suit premises to the plaintiffs within a period of 4 months from date of the order.

¶17

3 In support of this application, Mr. Lad submitted that the respondents, (herein after referred to as the Plaintiffs) have instituted the suit on the grounds (i) that the defendants have illegally sublet and transferred the suit premises to third party without their permission. (ii) that the defendants have not used the suit premises, without reasonable cause for the purpose for which they were let out for the period of 6 months immediately preceding the date of the suit. (iii) that the defendants have acquired suitable alternate accommodation. (iv) that they have caused waste and damage to the suit premises. (v) that the plaintiffs require the suit premises reasonably for their own use and occupation. He submitted that the trial court dismissed the suit. As against this, the Appellate Court decreed the suit only on the ground under Section 13(1) (k) of the Act. In order to succeed on the ground under Section 13(1)(k) of the Act, the plaintiffs have to plead and prove that the suit premises is not

¶18

used without reasonable cause for a continuous period of 6 months immediately preceding the date of the suit. He invited my attention to the

mmj

2/7

cra-580-13.sxw

cross-examination of P.W.-1 Suhas Date and in particular paragraph 5 of the cross-examination. Mr. Lad submitted that in the plaint, the plaintiffs have not given particulars as regards non user as contemplated under Section 13(1)(k) of the act. The grounds of unlawful subletting and non user are overlapping. The learned trial Judge had rightly dismissed the suit on all the grounds. He invited my attention to paragraph 8 of the Trial Court Judgment. After considering the assertions made in the plaint, the trial court held that the plaintiffs did not mention from which date, month and year the defendants had left the suit premises. In which month and year defendant acquired suitable residence. Unless and until the plaintiffs give the specific period of leaving the suit premises by the defendants, it is highly impossible to count the period since what period the defendants have not used the suit premises six months before filing of the suit. As against this the appellate court committed serious error in decreeing the suit on the ground under Section 13(1)(k) without there being any positive evidence led by the plaintiffs. He further submitted that matter requires consideration.

¶23

4 On the other hand, Mr. Dani supported the impugned order. He invited my attention to admission given by D.W.-1 Shirish Manohar Shringarpure. In the cross-examination D.W.-1 admitted that he has no

mmj

3/7

cra-580-13.sxw

document to show that since 1983 to 1986 his mother namely Sarojini Shringarpure as also his grandmother-Vanitabai was residing in the suit premises. He invited my attention to the findings recorded by the appellate court. The appellate court considered the death certificate at Exhibit B as also extracts of electoral roll at Exhibit D coupled with admissions given by D.W.-1 in the cross-examination and came to the conclusion that the plaintiffs have established case under Section 13(1)(k).

¶28

5 I have considered the rival submissions made by the parties. I have also perused the material on record. In paragraph 2(a) of the plaint,the plaintiffs specifically asserted that the original Defendant No.1 Vanita was not using the suit premises for her own use and occupation, without any reasonable cause for a period of more than six months preceding to the date of filing of the suit. The plaintiffs further asserted that the original tenant Vanitabai ceased to reside in the suit premises since 1983 and that the said Vanitabai started to reside with defendant no.2 at 78, Transit camp, Pratiksha Nagar, Sion, Mumbai 400 022. It was further asserted that original defendant Vanitabai never came to reside in the suit premises and died on or about 1986 at the address of defendant no.2 i.e Pratiksha Nagar,

¶29

Sion, Mumbai. The suit was instituted in the year 1985. In the Written Statement, the defendants denied that the original defendant Vanitabai

mmj

4/7

cra-580-13.sxw

was not residing in the suit premises or that the suit premises was not used by her for her own use and occupation without reasonable cause for a period of more than 6 months preceding to the date of filing of the suit. In short the assertions made in paragraph 2(a) of the plaint were denied. Mr. Lad was not in a position to point out that any case was made out by the defendant in the written statement about any reasonable cause for non user of the suit premises.

¶34

6 I have perused oral evidence of the parties and in particular D.W.-1 Shirish Shringarpure. The original defendant No.1 Vanitabai died leaving behind two daughters namely Sarojini Shringarpure and Pramodini Prabhakar Bhadgaonkar. Defendant No.4 Subhash and Shirish are sons of Sarojini Shringarpure. D.W.-1 Shirish admitted that his mother and aunt were present in the court and they were regularly attending the court. He was confronted that death certificate Exhibit B (Annexture-2). Annexure 2 (Exhibit B) is the death certificate of Vanitabai which showed that she expired on 3-8-1986. The death certificate recorded permanent residential address of her daughter Sarojini, 78/622, Pratiksha Nagar, Sion, Mumbai 400 022. Apart from that he clearly admitted that he has no documentary evidence to show that his mother was residing in the suit premises since 1983 to 1986 and further that he has no evidence to show that his

mmj

5/7

cra-580-13.sxw

grandmother was residing in the suit premises. The appellate court has recorded a categorical finding that the defendants have not led positive evidence and substantiated their case that they were residing in the suit premises after 1983. After, considering the documentary evidence as also admission given by D.W.-1, the appellate court held that the plaintiffs have established ground of non user of the suit premises as contemplated under Section 13(1)(k) of the Act.

¶39

7 After hearing the Learned Counsel for the parties and after considering the material on record, I do not find that the appellate court has committed any error in arriving at this conclusion. It cannot be said that the findings recorded by the appellate court are based upon no evidence or that on the basis of evidence on record no reasonable person would have come to the conclusion at which the appellate court came. Having regard to the admission of D.W.-1 coupled with the documentary evidence, it is evident that the Plaintiffs have established their case of non user of the suit premises from 1983 onwards. The suit was instituted in the year 1985. The documentary evidence produced by the defendants viz ration card, telephone bills, electricity bills are for the period after filing of the suit i.e. April 1985. In view of this, no case is made out for invocation of powers under Section 115 of the CPC . The Civil revision application

mmj

6/7

cra-580-13.sxw

fails and the same is dismissed.

¶44

8 At this stage, Mr. Lad orally applies for continuation of ad-interim order dated 14-8-2013 for a period of 12 weeks from today. He states that the defendants and all the adult family members residing with them will file usual undertaking in this court within two weeks from today incorporating therein that i) that the Applicants are in possession and nobody else is in possession (ii) that the Applicants have neither created third party interests nor parted with possession with the suit premises (iii) the Applicants will here after neither create third party interests nor part with possession.(iv) that the applicants will clear the arrears if any and will continue to pay monthly rent for period of 12 weeks from today. (v) the Applicants will hand over vacant and peaceful possession of the suit premises to the Respondent, in case they are unable to obtain suitable orders from the superior court within the period of 12 weeks from today.

¶45

9 Subject to filing of undertaking in the aforesaid terms within two weeks and giving advance copy of undertaking to the other side, adinterim order dated 14-8-2013 shall remain in force for a period of 12 weeks from today. Order accordingly.

¶46

(R. G. KETKAR, J)

¶47

mmj

¶48

7/7

Mrs. Sarojini Manohar Shringarpure and Ors. v. Shri Suhas Gopinath Date and Anr.

Case brief

What is this about?

What did the court decide?

Mrs. Sarojini Manohar Shringarpure and Ors. v. Shri Suhas Gopinath Date and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Brihan Mumbai Mahanagar Palika through (Best Undertaking). Vs Sonu Sanjay Kamble.

Nehru Centre and Ors. Vs M/S. Popular Book Depot

Mrs. Sunanda Madhukar Jadhav Vs the Maratha Mandir Co-Operative Bank Ltd.

Mr. Madhusudan Mahadev Bendre Vs Mr. Raghunathsing Kisansing Thakur (Since Deceased through Lrs)

Nirad Senapati and Ors. Vs M/S Sharan Builders and Anr.

Hemant Ramesh Bhagwat Vs Jagannath Mahadev More and Ors.