TMI Blog1987 (1) TMI 498X X X X Extracts X X X X X X X X Extracts X X X X ..... plaintiffs, the daughters of said Asmabai, after they had given to the defendant their notice of attornment dated 21st August 1975 wherein they had informed the defendant that the premises had been transferred by Asmabai in their favour by a registered document. The said notice alleged that the defendant had acquired alternate suitable residence inasmuch as he had been allotted railway quarters at Andheri and he had shifted as far back as in Jan. 1965. It was also alleged that the defendant had unlawfully sub-let the suit premises. 3. The defendant vide his reply dt. 13th Sept., 1975 denied the title of the plaintiffs and contended that no intimation regarding the alleged transfer had been given to him by Asmabai. Though he admitted having been allotted railway quarters he contended that that accommodation was of temporary nature. Moreover, he visits the suit premises on Sundays and holidays. The allegation of subletting was also denied. 4. In the suit plaintiffs alleged that the defendant was guilty of non-user and subletting. The plaintiffs also contended that the defendant had acquired alternate suitable residence and that the plaintiffs require the suit premises reasonabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1982. Pursuant to the aforesaid findings of the appeal of the defendant was dismissed with costs. 10. Aggrieved by the aforesaid judgments and decrees the defendant has approached this Court under Article 227 of the Constitution. 11. Mr. Raghuwanshi, learned Advocate appearing in support of the petition, firstly submitted that the plaintiff would not be entitled to urge the ground of default for claiming possession. He pointed out that in the suit notice dt. 21st Aug., 1975 there was no demand towards arrears of rent inasmuch as there were no arrears on that date. Similarly in the suit filed on 2nd Oct., 1975 there was no ground of default set up for claiming possession. The plaintiff was not entitled to rely upon her subsequent notice dt. 14th April 1977 for claiming possession by amending the plaint on 26th Oct., 1977. The amendment of the plaint related back to the date of the filing of the suit on which date there were no arrears. Mr. Raghuwanshi relied upon the case of All India Reporter Ltd. v. Ramchandra, reported in AIR1961Bom292 , in support of his contention that the amendment in this case would relate back to the date of the suit i.e. 2nd Oct., 1975. The plaintiff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had been duty encashed by her. The said payments cover the period of rent up to to end of Feb., 1977 and the defendant had deposited rent in Court for the period from March, 1977 onwards. Mr. Raghuwanshi submitted that both the Courts below had erred in not exhibiting the aforesaid extract of account of the bank which had been duly signed by the Agent of the Andheri Branch of the Maharashtra State Co-operative Bank Ltd. The lower appellate Court by placing reliance on Section 2(8) of the Bankers' Books Evidence Act, 1891 has held that 'certified copy' means a copy of any entry in the books of a Bank, together with a certificate written at the foot of such copy that it is a true copy of such entry, that such entry is contained in one of the ordinary books of the bank and was made in the usual and ordinary course of business, and that such book is still in the custody of the bank, such certificate being dated and subscribed by the principal accountant or manager of the Bank with his name and official title. According to the learned Judge since the said extracts of statement of account had not been signed by the principal accountant or manager as required and since the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the lower appellate Court ought to have taken into account the aforesaid subsequent event and ought not to have given the finding that the defendant had acquired alternate suitable residence. 16. In my judgment, though it is true that defendant had been allotted service quarters as far back as in 1965 and he continued to occupy the same for almost seventeen years, I would be well justified in taking into account the subsequent fact of his retirement from service whereafter he was required to surrender the said quarters. In this view of the matter I hold that the plaintiff, is not entitled to claim possession on the ground of acquisition of alternate suitable residence under Section 13(1)(l) of the Bombay Rent Act. 17. On the issue of non-user Mr. Raghuwanshi submitted that this was not a case where the plaintiff had established that there was total non-user of the suit premises. On the contrary it was the case of the plaintiff that defendant had sublet premises. The claim of the defendant was that he was visiting the suit premises on Sundays and holidays and there was no justification in rejecting the said claim. Mr. Raghuwanshi relied upon the decision in the case of Balwa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possession. 20. Both the Courts below on appreciation of evidence of the parties came to the conclusion that defendant was not using the suit premises without reasonable cause for a continuous period of six months prior to the filing of the suit. I am not inclined to accept the submission of Mr. Raghuwanshi that the said finding is one arrived at without any evidence on record or that the said finding is perverse. On the contrary the said finding is a finding of fact which is not susceptible of being interfered with in a petition under Article 227 of the Constitution of India. I, therefore, hold that the decree for possession passed on the ground of non-user is justified. 21. On the issue of subletting Mr. Raghuwanshi submitted that no cogent evidence had been led on the part of the plaintiff that the suit premises had been sublet so as to entitle the plaintiff to claim decree for possession on that ground. All that had been shown was that one Bansali, who was alleged to be in occupation of the suit premises, had obstructed the plumbing work at the suit premises. Further, the notice of attornment dt. 6th Aug., 1965 was shown to have been received by the third party, one Bans ..... X X X X Extracts X X X X X X X X Extracts X X X X
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