A.J.Shastri, J. - (1.) The present Civil Revision Application under Section 29(2) of the Bombay Rent Act is directed against the decisions delivered by the courts below dated 30.9.2009 passed in Regular Civil Suit No.38 of 1998 as well as an order dated 30.8.2016 passed in Appeal No.47 of 2009.
(2.) The case of the petitioner - original plaintiff (landlord) is that he is the owner of the suit premises situated at Plot bearing No.34/2013 which is a two storeyed building consisting of ground floor and having four shops. The shop in question is a shop first from western side and 4th shop from eastern side was let out to the tenant - Ghulam Rasool Shaikh years back. Said Ghulam Rasool Shaikh had expired on 24.1.1995, who was a statutory tenant of the premises in question at a monthly rent of Rs.35/-. It is the case of the plaintiff that though the present occupiers and the defendants, who are respondents herein, were not carrying out the business along with said Ghulam Rasool Shaikh, but were not residing prior to three months from his death in the shop. As a result of this, since they being not with the deceased at the relevant point of time prior to three months from the date of death nor were assisting him in the business in the shop in question, are not entitled to seek any protection under the provisions of the Bombay Rent Act. As a result of which, Regular Civil Suit No.38 of 1998 came to be filed for the purpose of recovery of possession and arrears of rent. 2.1 The case of the plaintiff further that inter-se there was another suit being Regular Civil Suit No.106 of 1982 was filed by the petitioner against deceased Ghulam Rasool Shaikh for recovery of rent in which the Court passed an order for Rs.770/- to be recovered as rent and cost and the said suit was allowed, against which Appeal No.129 of 1984 was also dismissed on 24.6.1988. It has also been mentioned in the present civil revision application that one another suit with respect his personal property was filed by deceased Ghulam Rasool Shaikh bearing Civil Suit No.85 of 1996 against one Asgarbibi for recovery of possession and rent and by mentioning these facts and leaving at that stage, further averments are made in the present civil revision application that the shop in question, out of which present civil revision application is arising was dismissed vide judgment and order dated 30.9.2008 by the trial court. It is also narrated in the civil revision application that feeling aggrieved by and dissatisfied with the said order, dated 30.9.2009, passed in Regular Civil Suit No.38 of 1998, the petitioner preferred an appeal being Appeal No.47 of 2009 which also came to be dismissed on 30.9.2016 and it is against those concurrent decisions and conclusion, the petitioner has submitted present Civil Revision Application under Section 29(2) of the Bombay Rent Act. 2.3 This Civil Revision Application was initially entertained by this Court by issuance of notice on 17.10.2016 and thereafter, from time to time, the matter has been adjourned and lastly, it has come up for consideration on 14.2.2018 and pursuant to the hearing both the learned advocates at length, the matter was put up for orders and in that context and with this background, the present Civil Revisions Application is taken up by this Court for its final disposal.
(3.) Mr.M.B.Gandhi, learned advocate appearing for the petitioner - original plaintiff, has contended that in the present proceedings, despite the fact that there was a specific plea with regard to nonuser of premises, the trial court has not framed any issue with respect to that. It has also been contended that this being a premises let out for the business purpose, since none of the respondents were doing the business and assisting the deceased prior to three months from the date of his death, they are not entitled to seek any protection by virtue of Section 5(11)(c)(ii) of the Bombay Rent Act. It has also been contended that the contentions which have been pressed into service have not properly been considered by the courts below and so much so that erroneously the trial court has allowed the respondents to adduce the evidence in a situation where they have not submitted any written statement. Learned advocate has further pointed out that even the examination which has taken place of the witnesses are also not revealing the fact by virtue of which any protection is available to the respondent. 3.1 Mr.Gandhi, learned advocate, has further contended that this being a premises let out for business purpose, it was expedient on the part of respondents - defendants to lead the evidence and material so as to justify that prior to death, they were assisting the deceased and with regard to this issue, there is no evidence worth the name brought on record. It has been contended that the electricity bills which have been given are of the year 2007 onwards and not of a relevant period and, therefore, it is a case in which respondents have miserably failed in establishing the defence which ought to have been considered by both the courts below. Learned advocate has further contended that on the contrary, the respondent Nos.1 and 2 out of whom there was a pardanishin lady, who could not have come out from the house which itself evident that they were not with the deceased in the shop prior to three months of his death and were not doing any business so as to even pretend that there is inheritance right available to the respondents. 3.2 Mr.Gandhi, learned advocate, has further contended that in view of the provisions contained under the CPC, particularly Order 8, if not observed then no defence said to have been pressed into service. On the contrary, in the absence of pleading the effect of Order 8 Rules 2, 3 and 5 ought to have considered by the trial court. By virtue of the said provision, in the absence of any pleading even evidence could not have been allowed to be led. To this submission, Mr.Gandhi, learned advocate, has relied upon a decision delivered by the Apex Court reported in (2009) 11 SCC 545 and submitted that civil proceedings could not have been decided or determined in the absence of any pleading. Relying upon the said decision, a contention is raised that not only the evidence could not have been allowed to be led, but if allowed the same could not have been considered. So far as witnesses are concerned, two witnesses of the respondents - defendants have not thrown any light on the controversy, as a result of which the conclusion which has been arrived at is of no assistance. It has also been contended that withdrawal of the rent which has been deposited in a different proceedings altogether, the same cannot be taken in aid for the purpose of determining the present independent proceedings. 3.3 Considering this situation prevailing on record, Mr.Gandhi, learned advocate, has submitted that both the courts below have concurrently erred in exercising the jurisdiction, as a result of which the present Civil Revision Application deserves to be accepted. Mr.Gandhi, learned advocate, upon overall submission, has then requested to allow the present Civil Revision Application by setting aside the impugned order passed by the courts below. No other submissions have been made. ;