M/S. KUMAR BROTHERS, ITS PROPRIETOR, SHRI NARAYANDAS T KATARIA (SINCE DECEASED), THR. LRS.versusSHRI. UMESH MANOHAR JOSHI

                                                           35-cra-127-2019.doc




varsha
                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          CIVIL APPELLATE JURISDICTION
                 CIVIL REVISION APPLICATION NO. 127 OF 2019
         M/s. Kumar Brothers, its Proprietor, Shri … Applicants
         Narayandas T Kataria(since deceased)
         through Lrs
                    vs.
         Shri Umesh Manohar Joshi                          … Respondent

         Mr. Kishor K. Malpathak for Applicants
                                         CORAM : GAURI GODSE, J.
                                          DATED : 21st AUGUST 2026


         ORDER:

         1.    This civil revision application is filed by the original defendant

         to challenge the concurrent judgments and decrees for eviction on

         the ground of non-user of the premises.

         2.    Learned counsel for the applicants submits that the plaintiff

         has himself averred in the plaint that the suit premises are in a

         dilapidated condition. It is also recorded that the landlord has

         stopped carrying out business in the building as it is in a dilapidated

         condition. Learned counsel for the applicants therefore submits that

         when there is a reasonable cause for non-user; there cannot be a

         decree under Section 13(1)(k) of the Bombay Rents, Hotel and

         Lodging House Rates Control Act, 1947 (‘Rent Act’). He submits that

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even though the defendant has raised the defence that due to his ill-

health, the business was not carried out, he has contended that he

is using the suit premises. However, only the defence would not be

material, and if the records show that the suit is in a dilapidated

condition, the decree on the ground of non-user would not be

sustainable. Hence, the impugned judgments and decrees would

warrant an interference by this court.

3.    The arguments raised on behalf of the applicants that the

premises being in dilapidated condition and the defence raised by

the applicants is exhaustively dealt by both the courts. It is held that

the plaintiff alleged that till December 1989, the defendant was

carrying out business in the suit premises; however, since January

1990, the premises has been completely kept closed. The defence

of the defendant’s illness for not carrying out business is also

considered by both the courts. The documentary evidence produced

on record shows that there was no electricity connection as it was

not being used. The admissions given by the defendant during his

cross-examination are also considered by both the courts in

accepting the allegations that the premises have been kept closed

since January 1990.

4.    From the record it appears that there is no dispute that the


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premises have been kept closed. The ground of illness raised by the

defendant is not supported by any satisfactory evidence as a valid

reason for keeping the premises closed. Both the courts therefore

held that there was sufficient evidence on record that the premises

have been kept closed for no valid reason. It is not the defence

raised by the defendant that because the premises was in a

dilapidated condition, he was unable to carry out business in the suit

premises. The defence is raised regarding his illness for not carrying

out business in the suit premises which is not supported by any

satisfactory evidence. Hence, both the courts have concurrently

held that the premises were kept closed without any reasonable

cause. In view of the concurrent findings of facts recorded by both

the courts, the impugned judgments and decrees would not warrant

any interference by this court.

5.    I do not find any jurisdictional or any manifest error in the

reasons recorded in the impugned judgments and orders to exercise

power under Section 115 of the Civil Procedure Code, 1908, to

interfere with the impugned judgments and decrees.

6.    The civil revision application is devoid of any merits. Hence,

the civil revision application is dismissed.


                                                 (GAURI GODSE, J.)

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