How to appreciate evidence in eviction suit on ground of non user of tenanted premises?

 This apart, the fact that under the Shops and Establishments Act, it is undoubtedly true that a person having a shop must get it registered. In other words, carrying on a shop or establishment, as defined in the Act, without registration, would make it illegal. The fact that there is a registration, however, would not be sufficient to establish that there is use of the premises. In other words, even if a person has registration, that by itself would not mean that the tenant is actually using the premises for the purpose for which it is rented out to him. Actual use of the premises can be established by various other circumstances like electricity bills, payment of wages to employees if there are employees, evidence relating to transactions of the business which is carried on etc. No doubt, the burden actually is on the landlord to establish the non-user. But since, in this case, it would appear that there is no registration for the period, it shows that the Appellants could not have lawfully conducted any business in the suit premises. There is, no doubt, the evidence of PW1 also.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4268 of 2019

Decided On: 08.05.2019

Nilesh Laxmichand  Vs.  Shantaben Purushottam Kakad (Since Deceased) by L.Rs.

Hon'ble Judges/Coram:

Ashok Bhushan and K.M. Joseph, JJ.

Citation: (2019) 6 SCC 542

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Whether court can pass eviction decree on ground of non user even if tenant has no intention to shift his residence?

The contention of Learned Counsel for the Petitioner is that the burden of proof has been wrongly placed on the Petitioner/Landlord. It has, however been recognised in the impugned judgment itself that in cases of the present genere, it is the tenant who can best discharge the burden of proving that he/she had not resided in the demised premises for a period of over six months immediately preceding the filing of the Petition. However, residency inherently implies permanency. Before a finding can be returned to the effect that a tenant has not resided in the demised premises for the said period of six months, the Court must be fully satisfied that there was an intention to shift the residence to an alternative place. For instance, a tenant may be transferred to another city and as a consequence it may become necessary for him to be away from the demised premises for even six months. The grounds of eviction would be made out. Could the tenant defeat the purpose of the legislation by making a short stay, in between this period, I would think that it would be a futile exercise, and he would not succeed in sewing himself from eviction. For the same reason, if there is no intention to reside at another place for this period, if this incidentally transpires for circumstances beyond the control of the Tenant, in my view he would not be liable to eviction. In the present instance, it appears to be the common case that the Respondent had left India with the purpose of visiting her children. There is no evidence that she had the intention of shifting residence for a period of over six months. As it happened, she appears to have returned to within three months. The Court must be alive fact that it is conceivable that the tenant leaves the residence with the intention of staying out for a couple of months, and for reasons beyond their control, staying out for a period of over six months. The burden of giving an acceptable Explanation would rest with the Tenant. In such case, there is no intention not to reside in the said premises within this period. In my view, Therefore, the initial burden would be on the Petitioner not only to state that there has been an absence of the tenant from the demised premises for a period of six month but also that this absence was fully intended. Only once the initial burden of proof is discharged by the Landlord does it shift to the Tenant. Learned Counsel has relied on the decision of Sushil Chander Gupta Vs. Radha Krishan Bathisa, 1981 (1) All IRCJ 711. I am in respectful agreement with the extracted view expressed therein which reads as follows

The question of residence or non-residence is not a question of presumption. It is question of fact. It is not a question of inference but of positive proof. The landlord cannot prove the negative except by his statement. The tenant is required to prove the positive. The burden at once shift to him to show that he was residing during the period in question.

IN THE HIGH COURT OF DELHI

C.M.(M) No. 576 of 1998

Decided On: 13.12.2000

Ranjit Singh Vs. Inez Richards

Hon'ble Judges/Coram:

Vikramajit Sen, J.

Citation: 2001(2) RCR 716

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When tenant can not be evicted from tenanted premises on ground of non user of premises?

Thus it becomes clear from the observations of the Supreme Court quoted above, that the liability of the tenant to pay rent is linked to his enjoyment of the demised premises. In the present case the tenant-petitioner has been deprived of the enjoyment of the entire premises only due to the conduct and attitude of the landlord and therefore, in my opinion, the tenant's liability to pay the entire rent would stand suspended from the date from which he became unable to use and enjoy the tenanted premises. Bare perusal of Section 13(1)(k) of the Act makes it clear that if there is reasonable cause for not using the tenanted premises then a decree of eviction cannot be passed. In the present case there was definitely a reasonable cause for the tenant not to use the tenanted premises in the circumstances referred to above. So far as a decree under Clause (1) of Section 13(1) is concerned it contemplates the tenant to secure suitable residence. Section 13(1)(1) contemplates a voluntary act on the part of the tenant. When the tenant is forced to shift his residence and especially when the conduct of the landlord himself is responsible for forcing the tenant to shift his residence in my opinion, the landlord would not be entitled to seek decree of eviction against the tenant under Clause 13(1)(1) of the Act. In my opinion, the Courts below have neither appreciated the evidence on record properly nor they have applied law properly. So far as the judgment of the Calcutta High Court in the case of Jatindra Kumar Dass relied on by the learned Counsel for the respondents is concerned, in my opinion, the judgement does not consider the Judgement of the Supreme Court in Surendra Nath Bibra 's case referred to above. In any case the perusal of paragraph IS of that Judgement shows that ultimately the Court in that case found that there is no liability on the landlord to repair the tenanted premises and therefore, the tenant was not justified in suspending the payment of rent.

6. The learned Counsel for the respondents by relying on the provisions of Section 10(D) of the Act, contended that the tenant had a remedy of getting the premises repaired. But in my opinion, it is not the question of tenant's having a remedy to get the premises repaired. The question is. the landlord entitled to a decree of eviction against the tenant. The tenant is deprived of the enjoyment of the property by a conduct which is attributable directly to the landlord and therefore there occurs suspension of the liability of the tenant to pay the rent. In my opinion, the tenant had done all within his powers, namely, issuing notice to the landlord to carry out repairs, offering to carry out repairs himself and moving the authorities of the Pune Municipal Corporation. But it is only because of the adamant attitude adopted by the landlord, that repairs could not be carried out. At this stage, now the landlord cannot turn around and say that despite his refusal and his attitude, the tenant could have on his own done the repairs. In my opinions the Courts below were not justified in passing the decree of eviction against the petitioner-tenant. It is to be seen that Section 23(1) casts a duty on the landlord to keep the premises in good and tenantable repair. The landlord committed breach of this statutory duty imposed on him. Sub-section 2 of Section 23. enables the tenant to carry out the repairs, after giving notice to the landlord, The tenant in this case, issued necessary notice to the landlord and then wanted to carry out the repairs, but the landlord did not permit him to do so. This attitude was adopted by the landlord, obviously, to force the tenant to leave the suit premises. Now, in my opinion, to pass a decree in favour of the landlord, on the ground that the tenant has not paid rent for the period during which he could not have occupied the suit premises and also on the ground that he did not continue In occupy the premises and sought shelter elsewhere, would amount to allowing the landlord to take advantage of his own wrong.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 67 of 1983

Decided On: 27.02.1997

 Gopal Dattaraya Chapahlkar  Vs. Govind Yeshwant Borkar and Ors.

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Whether eviction decree can be passed against tenant on ground of non user of premises if he has subletted it?

Hence for a claim under Section 13(1)(k) it is not necessary for a landlord to establish that the premises are left to a total non-user. It is enough if he proves that his tenant has not used the premises for the purpose for which they were let for a continuous period of six months immediately preceding the date of the suit and the same was without reasonable cause. Though the premises are shown to be in use say by a third person or for a purpose other than the one for which they were let, the same cannot detract from the concept of 'non-user' contemplated under Section 13(1)(k). In this view of the matter, though the premises had been occupied by a third party, the ground of non-user is still open to the plaintiff for claiming possession.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

W.P. No. 4598 of 2005

Decided On: 20.10.2005

 Bhaskar Wamanrao Rithe  Vs. Indira Iyer

Hon'ble Judges/Coram:

B.P. Dharmadhikari, J.

Citation: 2006 (1) MHLJ 155

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How to appreciate evidence in case of non user of tenanted premise in eviction suit?

As far as the issue of non-user is concerned, the same has been dealt with by the Trial Court from paragraphs 9 to 15 of its order. It has referred to the evidence in considerable detail and after examining it in its entire perspective has come to the conclusion that the Defendant was not using the suit premises for a continuous period of six months prior to the filing of the suit. What is important to note is that the Trial Court has taken into consideration the electricity consumption for the suit premises and has clearly stated that on most of the times electricity consumption was 'Zero' units for the period from June 2005 to January 2009. The learned Trial Court correctly surmises that if the Defendant was actually using and living in the suit premises as contended by him, there ought to be a regular consumption of electricity. Merely because the Defendant has produced the ration-card, election identity card and other documents showing the address of the suit premises would not by itself with nothing more, establish that the suit premises were used by the Defendant. Another factor that the Trial Court took into consideration was the fact that the wife of the Defendant admittedly used the alternate premises in Thane. It is not the case of the Defendant that he is estranged from his wife and living separately. This is coupled with the fact that the Defendant was 71 years old and was certainly unlikely to live alone all by himself. Another factor which indicates that the suit premises were not being used by the Defendant, are the service reports of the Bailiff. These reports clearly shows that the Defendant was not available at the suit premises on three occasions when the writ of summons was sought to be served at the said address. When inquiries were made with the neighbour, it was revealed that most of the times the premises remained locked. Looking to all these facts and considering all the evidence, the Trial Court disbelieved the story of the Defendant that he was in use and occupation of the suit premises as alleged by him. Even the appellate Court has considered all these aspects and confirmed the findings and conclusions reached by the Trial Court on this issue. On going through these findings and conclusions, I am clearly of the opinion that the Courts below have correctly applied their mind to the evidence led before them and come to the correct conclusions. It certainly cannot be said that the analysis of the evidence done by the Courts below suffers from any perversity as sought to be contended before me.

IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 746 of 2015

Decided On: 15.06.2017

Shridhar Dattatraya Karadkar Vs. Narayan Laxman Soparkar

Hon'ble Judges/Coram:

B.P. Colabawalla, J.

Citation: 2017(4) MHLJ 713

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How to prove non user of tenanted premises in suit for eviction?

Having considered the rival submissions in the light of the evidence on record, it is not possible to accept the contentions of Shri Dalvi. A perusal of the evidence clearly shows that in October, 1974 the petitioner left Pune for good and he shifted his entire family viz. his wife, two children and his mother to Nagpur in May, 1975. Apart from the fact the petitioner was provided with Service Quarters at the Pench Project, near Nagpur, the petitioner acquired tenanted premises in Dhantoli at Nagpur and got his ration card and gas connection transferred from Pune to Nagpur. Merely because the petitioner kept some of his belongings in the suit premises at Pune, it would not be possible to hold that the petitioner continued to use the suit premises for the purpose for which they were let.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 3059 of 1980

Decided On: 07.01.1993

Govind Ramchandra Deo Vs. Smt. Ramabai Vasudeo Pandit and Ors.

Hon'ble Judges/Coram:

A.V. Savant, J.

Citation: 1993(1) MHLJ 437

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Whether mere casual visit to tenanted premises will amount to residence required U/S 16(1)(n) of maharashtra rent control Act?

 Proceeding to consider as to whether any other member of the family was residing in the premises, having regard to the fact that the evidence in that case showed that son of the petitioner stayed in the premises from June 9 to June 14 and C J. observed : -

" ................... As a matter of fact, the learned District Judge finds and I am bound by that finding - that there was merely a casual occupation by the petitioner's son for a spasmodic period of a week. Now, a mere casual occupation of premises does not constitute residence in those premises. In construing sub-clause (k), one must also bear in mind the object of the Legislature in passing this legislation. The Rent Restriction Act is passed because there was a scarcity of premises and therefore it was necessary to protect bona fide tenants and also to see that premises were not left unoccupied so that people in need of premises should not be deprived of them and also a tenant should not have one set of premises at one place and go about residing in some other premises. Therefore, the purpose within the meaning of sub-clause (k) for which premises are let is the purpose of permanent residence; not a mere casual occupation, not a mere spasmodic stay in the premises ........"
(Underlining mine).

IN THE HIGH COURT OF BOMBAY

Special Civil Appln. No. 2795 of 1969

Decided On: 23.03.1972

 Achut Pandurang Kulkarni Vs. Sadashiv Ganesh Phulambrikar

Hon'ble Judges/Coram:
M.S. Vaidya, J.
Citation : AIR 1973 Bom 210

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How to prove non user of tenanted premises in suit for eviction?

Counsel for the Respondent sought to urge that there was no electricity connection because the premises have been used only as a godown since the Respondent had certain adjoining premises in which the factory is situated. No such case has been established by the Respondent in the course of his evidence. On the contrary, the case of the Respondent in the course of Examination-in-Chief is that he was using the premises for painting, woodwork and paper manufacturing. That being so, the Learned Trial Judge was clearly justified in coming to the conclusion that there was a complete failure on the part of the Respondent to produce any material which would even prima facie indicate that the premises had been used for the purpose for which they were let. The absence of electricity/the absence of a telephone which was, in fact, removed after 12 years in 1977, the absence of a business licence and the failure of the Respondent to produce Accounts Books and a wage register would only go to establish that a ground for eviction has been clearly established with reference to Section 13(1)(k).

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 278 of 1990

Decided On: 14.08.2003

Ravinbhushan Anant Datar and Shashibhushan Anant Datar

Vs. Waman Dattatray Purohit

Hon'ble Judges/Coram:

Dr. D.Y. Chandrachud, J.

Citation: 2004(1) BOM CR 585

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When is the second suit for eviction on the ground of bonafide requirement maintainable after the dismissal of the suit on the same ground previously?

Even on the ground of bonafide requirement, I find that the Trial Court as well as the Appellate Court have given due consideration to this issue and thereafter come to the conclusion that even on this ground, the Suit was not barred by the principles of res judicata. It is not in dispute that as far as the first Suit was concerned, the same was filed by the Plaintiff and his brothers and the Plaintiff was unable to make out a case for bonafide requirement. In the facts of the present case, circumstances have clearly changed. The Plaintiff has now retired from service and so as his wife who had accommodation in Alibag at the time when the first Suit was filed. In the second Suit, it is specifically averred that the Plaintiff and his wife have retired and are living in rental accommodation in Alibag and they have no other accommodation in Alibag nor the means to purchase another accommodation in Mumbai. It is in these circumstances, the Plaintiff pleaded that he bonafide required the suit premises for his personal use and occupation. It is therefore clear that the bonafide requirement that is now pleaded in the second Suit is totally different from the one that was pleaded in the earlier Suit. As mentioned earlier, in the earlier Suit, the bonafide requirement pleaded was not on behalf of the Plaintiff but also on behalf of his brothers. Since his brothers have now got suitable alternate premises, the Plaintiff would be the only person to have the bonafide requirement of the suit premises. It is in these circumstances, he has approached this Court on this ground. Looking to all these facts, I think that the Courts below were fully justified in coming to the conclusion that the subsequent Suit filed by the Plaintiff inter alia on the ground of non-user as well as bonafide requirement was not barred by the principles of res judicata.

IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 746 of 2015

Decided On: 15.06.2017

Shridhar Dattatraya Karadkar Vs. Narayan Laxman Soparkar

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