Reverting to the ground of non user under section 13(1)(k) of the Rent Act, it is true that the Appellate Court has recorded a finding of fact that the suit premises were not being used for a period of six months immediately preceding the date of institution of the suit. However, what is relevant to note is that Appellate Court has held that there was no pleading in the plaint that the demised premises were kept closed for more than six months by the respondent-tenant "without any reasonable cause". The Court below was right in placing reliance on the decision of the case of C.R. Shaikh v. Lilabai D. Rohida and another, reported in 1981 Mh.L.J. 437 that if there is no pleading in that behalf then it is incomprehensible that the plaintiff can be said to have made out a cause of action against the tenant to invoke that ground. The learned Counsel for the respondent has also placed reliance on the case of Shri Cyrus Behram Irani and another v. Shri Parvis Burjorji Engineer (since deceased by his heir) deft. No. (1) Dinoo Parviz Engineer and another, reported in 1991 Mah.R.C.J. 158, which has taken the same view. Accordingly, having regard to the admitted position from the record that the petitioners did not plead nor adduce any evidence to even suggest that the demised premises were kept locked for more than 6 months by the respondent-tenant "without any reasonable cause" as has been observed by this Court in the above said decision, no cause of action would arise to invoke that ground. No doubt, the onus on the landlord with regard to the factum of non user of the suit premises "without reasonable cause" is very light, but nonetheless the landlord has to allege that fact only when the provisions ofsection 13(1)(k) can be said to have attracted. Suffice it to point out that no pleading nor any evidence in that behalf is forthcoming from the landlords and, therefore, no fault can be found with the courts below in rejecting the decree on that ground.
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Bombay High Court
Ashok Vithal Chavan And Ors vs Baburao Sakharam Bhagat on 19 June, 2002
Equivalent citations: 2002 (6) BomCR 736
Bench: A Khanwilkar
