Judgment:
Oral Judgment:
1. The petitioners are the landlords who had filed Regular Civil Suit No. 303 of 2000 on 10.10.2000, seeking decree of eviction and possession of the suit premises, which is a shop block No. 4, located on ground floor of the building and occupied by tenant Shri Labhshankar Joshi, for carrying out the business under the name and style of Laxmi Trading Corporation. The eviction and possession was sought on two grounds i.e. (i) that the landlords require the suit premises for bonafide use and (ii) that there was non user of the suit premises without reasonable cause for more than six months immediately preceding the date of filing of the suit as contemplated by Section 16 (1) (n) of the Maharashtra Rent Control Act (hereinafter referred to as "the said Act").
2. The trial Court passed a decree on 8th April, 2005, for eviction and possession against the respondent, the widow of Shri Labhshankar Joshi, the original tenant, who expired on 24th April, 1999. The tenancy was transferred in the name of the respondent after the death of tenant. The lower appellate Court by its judgment and order dated 4th April, 2007, passed in Regular Civil Appeal No. 246 of 2005, reversed the decree passed by the trial Court, holding that the non user of the suit premises continuously for more than a period of six months without reasonable cause has not been established and the suit filed by the petitioner has been dismissed.
3. The petitioners-plaintiffs examined three witnesses including the plaintiff No. 3 Shri Satish Vinayakrao Karonde and two adjacent shopkeepers, one Shri Ashok Nandkishor Khandelwal and another Shri Omprakash Kisangopal Panpaliya. Respondent led evidence of two witnesses including herself and one Shri Bipinchandra Modi.
4. Undisputedly, Shri Labhshankar Joshi, the husband of defendant was the tenant, who expired on 24th April, 1999. The trial Court recorded the finding that non user of the suit premises as contemplated by Section 16(1)(n) of the said Act has been established. The reliance is placed upon the evidence of the witnesses examined by the plaintiffs and also the admission given by the defendant herself in her examination. The trial Court noticed that the electricity was disconnected for non payment of dues, which was evidenced by the document placed on record at Exh. 41. The witnesses examined have deposed that since last 4 to 5 years, the suit premises is lying vacant as unused. The trial Court took into consideration the declaration given by Shri Labhshankar Joshi to Nagpur Municipal Corporation at Exh. 53 and 54, so also the tax assessment copies at Exh. 55 and 56, relied upon by the defendant and finding is recorded that those documents are not helpful to the defendant to show that any partnership business was being run in the suit shop block.
5. The stand taken by the defendant that there was a partnership firm, which was doing the business, has also been rejected. The names of the partners have not been disclosed in the written statement. The partnership deed is not produced on record. The registration of partnership has also not been produced on record. The lower appellate Court has merely relying upon the documents at Exh. 53 and 54 reversed the finding of the trial Court without taking into consideration the evidence of the witnesses and the admission given by the defendant herself. From the record, I do not find any evidence to show that partnership business was going on after the death of Shri Labhshankar Joshi on 24th April, 1999, in the suit shop block. The finding recorded by the lower appellate Court is perverse, without any basis and in ignorance of the findings given by the trial Court. The impugned judgment and order cannot, therefore, be sustained and it will have to be set aside.
6. Shri Markandeywar, the learned counsel appearing for the respondents invited my attention to the finding recorded by the lower appellate Court in paragraph 22 of the judgment, which is reproduced below.
"20. It is seen from the record that the evidence of the defendant and the witness, though tested by the weapon of cross-examination, but not shattered on the point of possession and occupation of the suit premises by the defendant. It is evident from the record that during the cross examination conducted on behalf of the plaintiff, no specific period of non-user of the suit premises suggested to the defendant and the witness or nothing has been elicited on record to establish that the suit premises have not been used continuously for a period of six months preceding the date of suit."
He submits that the lower appellate Court has taken into consideration the relevant aspect and hence, no case is made out for interference in the writ jurisdiction. Shri Markandeywar has further invited my attention to the provisions of Section 16(1)(n) and relying upon the decision of the learned single Judge of this Court in case of C.R.Shaikh vrs. Lilabai D. Rohida and anr, reported in 1981 Mh.L.J. 437, urged that in the absence of there being specific pleadings of non user of the suit premises without reasonable cause continuously for a period of six months, prior to date of filing the suit, the trial Court could not have taken into consideration the evidence brought on record and the suit should have been dismissed for lack of pleadings of material facts.
7. The suit in question was tried as a summary suit being the dispute between the landlord and tenant and was decided by the Small Cause Court at Nagpur. In paragraph No.6 of the plaint, the averments are as under.
"6. That, the Plaintiffs submit that as the suit premises are closed since several years and no business is carried out therein as the Defendant is not in a position to carry on business and therefore, the Defendant is not in the need of this suit premises in her possession"
In the written statement, the reply to paragraph no.6 is given as under;
"15. As to para 6 : It is specifically denied that the said suit premises is closed since last several years and no business is carried out as alleged. It is specifically denied that the defendant is not in a position to carry out the business and therefore, the defendant is not in need of the premises as alleged. The contentions made hereinabove make it crystal clear that the said business is being done by the defendant on behalf of the firm along with other partners"
In the cross examination, the defendant stated as under;
"It is not true that Laxmi Trading Corporation was business of my husband alone. Witness voluntary said that it was partnership business. I do not know who were the partner. It is not true that during ailing period of my husband, shop was closed. There is no electricity supply in that shop. I do not know who disconnected electricity supply. I had not inquired about that. Since 34 years, there is no electricity. Since 45 years telephone connection in the shop was also disconnected. There is no Gumasta Registration of my shop. There is not sale tax registration of that shop. I have no documents to show purchase of articles for shop and sale of such articles in that shop. It is not true that we occasionally open purchase of articles for shop and sale of such articles in the shop after filing of this suit."
In view of the aforesaid position brought on record, it is apparent that defendant has clearly understood the case put forth by the plaintiff and accordingly, the reply has been given and the statements are made in the deposition. It cannot, therefore, be said that the defendant had no opportunity to meet with the specific case of the plaintiff, which is required to be made out under Section 16(1)(n) of the Maharashtra Rent Control Act.
8. In the result, writ petition is allowed. The judgment and order dated 4th April, 2007, passed by the lower appellate Court in Regular Civil Appeal No. 246 of 2005 is hereby quashed and set aside. The decree passed by the trial Court in Regular Civil Suit No. 303 of 2000 on 8th April, 2005 is restored. No order as to cost.
The parties are directed to maintain status quo for a period of 8 weeks from today so as to enable the applicant/respondent to adopt further appropriate remedies as are available in law. After expiry of the said period, the interim order of status quo shall stand vacated and the decree shall be executed.