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IN THE SUPREME COURT OF INDIA  

CIVIL APPELLATE JURISDICTION  

CIVIL APPEAL NO. 4268 OF 2019  

NILESH LAXMICHAND AND ANOTHER    ...  APPELLANT(S)  

VERSUS  

SHANTABEN PURUSHOTTAM KAKAD   

(SINCE DECEASED) BY LRS        ... RESPONDENT(S)  

J U D G M E N T    

K.M. JOSEPH, J.  

1. This appeal by special leave is directed against the  

Order dated 24.09.2018 passed by the High Court of Bombay  

in Civil Revision Application No. 29 of 2018. By the  

impugned Order, the Revision Application filed by the  

appellants challenging the Order of the Appellate Bench of  

the Small Causes Court at Bombay in Appeal No. 19 of 2013  

has been dismissed. Thereby the result is that the suit  

filed by the respondents for eviction of the appellants  

under Section 16(i)(c), 16(i)(e) and 16(1)(n) of the

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Maharashtra Rent Control Act, 1999 (hereinafter referred  

to as ‘the Act’, for short), has been decreed against the  

appellants.  

2. The original RAE Suit No. 1681 of 2006 was filed by one  

Shantaben Purushottam Kakad (the respondents in this appeal  

are the legal representatives of the original aforesaid  

plaintiff). The rented premises consisted of a shop on the  

ground floor of the building. The case of the plaintiff,  

inter alia, is as follows (parties will be referred to in  

the position before the Trial Court):  

The first defendant took the premises on rent for  

the purpose of carrying out business of bookshop and  

he, the first defendant, has, since the inception, been  

carrying on the business of bookshop in the name and  

style “Chetna Book Store”. In about July, 2005, the  

first defendant suddenly closed down the business of  

bookstore, and since then, is not using the premises  

for more than six months prior to the suit, for the  

purpose for which it was let and that too without  

reasonable or any cause. It was further stated that the

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first defendant had sublet the premises to third party.  

As regards the ground of nuisance, it was stated that  

the defendants have started business of preparation  

and sale of foodstuff from the suit premises which does  

not have suitable layout or ventilation for the same.  

It is further stated that as a result, there was  

pollution and smell and smoke and this caused lot of  

nuisance and annoyance for the plaintiff an old  

landlady and other occupants of the building. This  

business is now closed down. It is further stated that  

the business of garments was also started and closed  

down and that the defendants have now given the suit  

premises to someone else. It is, on these allegations,  

the suit came to be filed.  

3. A Written Statement came to be filed by the appellants.  

The first appellant is actually the son of the second  

appellant. Their case is, inter alia, as follows:  

In the year 1971, the second defendant, who is the  

father of the first defendant, approached the original  

landlord, the husband of the original plaintiff, for

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taking the suit premises on rent. On finalisation of  

negotiations, the premises were taken on rent somewhere  

in the year 1971. At that time, the first defendant was  

a minor aged five years. The premises were taken for  

commercial/business purpose to be carried on by the  

second defendant but the second defendant, for certain  

spiritual reason and on the advice of the Astrologer,  

obtained receipt in the name of the first defendant. The  

rent receipts continued to be issued in the name of the  

first defendant. After obtaining the building on rent,  

the second defendant used the rented premises for  

selling books in the name and style “Chetna Book Store”.  

Second defendant obtained necessary licence under The  

Shops and Establishments Act. The second defendant was  

not able to get good business and sufficient earnings.  

He started business of readymade garments for some time.  

That also did not succeed. Thereafter, he started the  

business in the name and style “Shree Krishna Food  

Corner”. However, though he applied, the Health  

Department did not issue the licence. The business in

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fast food was stopped and again the business of selling  

books and stationery was continued. The case of  

sub-tenancy was denied, so also the case relating to  

nuisance.”  

4. The Trial Court relied upon the deposition of PW1 to  

find that he admitted that he did not know when the tenancy  

was created, whether any negotiations took place and on what  

terms and conditions, the tenancy was created. The suit  

premises, was found to be let out in the year 1971 when the  

original landlord was looking after the affairs. The court  

relied upon the deposition of the second defendant as DW1  

as to the reasons why the rent receipt came to be issued  

in the name of the first defendant. The registration  

certificate under The Shops and Establishments Act was  

found to be in the name of second defendant for the business  

of book selling and food centre. These are for the period  

from 1988 to 2003 and for the period from 2006 to 2007. The  

lack of objection from the original landlord in the year  

1971 to the business being carried out by the second

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defendant, was noted. DW1 has deposed that the first  

defendant was five years old in the year 1971. Relying upon  

Section 11 of the Indian Contract Act, 1872 and noting  

reciprocal obligations is a cast on a lessee, tenancy in  

favour of the minor, was ruled out. From the inception, the  

second defendant was found to be in exclusive possession  

without interruption. Tenancy was found to be created in  

favour of the second defendant, though the rent receipt  

stands in the name of the first defendant. It was found that  

defendants proved that second defendant was then using the  

suit premises for selling books by obtaining license under  

The Shops and Establishments Act for the year 2006 to 2007  

and it was found that it could not be said that defendant  

was not using the premises for the purpose for which it was  

let for the continuous period of six months immediately  

preceding the date of the suit. The Trial court did not find  

favour with ground of illegal subletting. Regarding the  

illegal subletting to Mr. Raja, the details were found  

wanting.  

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5. As regards ground of nuisance, it was found that the  

smell and smoke of preparing foodstuff may cause nuisance  

and annoyance if the same are on a large scale and for a  

continuous period. There are 16 to 18 shops on the ground  

floor. The original plaintiff did not enter the witness box.  

PW1 resided elsewhere and he occasionally visited the  

premises. No adjoining occupier was examined as witness to  

support the case of nuisance. The particulars, as to what  

time in a day the defendants particularly prepared  

foodstuff and on what scale, etc., was not given. Finding  

all the three grounds not made out, the suit was dismissed.  

6. The Appellate Court refers to the rent receipts in the  

name of the first defendant and found that nullifies the  

evidence of DW1 to the effect that the premises was taken  

in the name of the second defendant since inception. It was,  

therefore, found that there was no question of induction  

of the second defendant since inception. The reason  

regarding creation of tenancy in the name of the first  

defendant being on the advice of an Astrologer or  

Numerologist was found unbelievable as no such Astrologer

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or Numerologist, on whose advice the same was done, was  

examined. Two letters dated 30.10.2005 and 01.12.2005  

written by the defendants were relied upon to conclude that  

the second defendant had absolute control over the suit  

premises and that he was in possession of the premises. As  

regards non-user of the premises, evidence of PW1 showed  

that in or about 2005, the first defendant suddenly closed  

down the business and the premises was locked for some time  

and first non-use was commenced in July, 2005. Thereafter,  

plaintiffs received two letters on 30.10.2005 and  

01.12.2005 from the defendants. Under those letters, the  

second defendant intimated the original plaintiff that  

there was leakage in the premises causing nuisance and due  

to which the suit premises have become unwholesome and in  

a filthy condition. DW1 in his evidence, it was found, has  

deposed as having run the Chetna Book Store for quite a  

number of years. Then he switched over to business of  

readymade garments. Thereafter, he started business of  

Shree Krishna Food Corner. Again, business in Book Centre  

was started. The Shops and Establishments Act showed that

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the business was carried on from 1988 to 1990, 1991 to 1993.  

The license was restricted to that period. The subsequent  

license is for the period from 2006 to 2007. This meant that  

there was a break in 1993 and business was started again  

in 2006-2007. During the period 1993 to 2006, other  

businesses like selling of readymade garments and foodstuff  

centre was going on at the suit premises. The suit was  

instituted on 19.10.2006. On the basis of new registration  

certificate issued on 30.11.2007, the defendants have come  

out with a case that firm by name Chetna Book Centre was  

being carried out since 2006. It was found that there was  

a gap of 13 months in between the date of the suit and  

registration of the new firm. This establishes non-use, it  

was found.  

7. The Appellate Court found that the businesses of book  

stall and foodstuff are diametrically opposite to each  

other.  The former is carried out during the day and later  

goes till late hours of night. As a result of that it can  

safely be said that starting of food corner in all  

probabilities could have resulted in causing nuisance and

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annoyance to the occupants of the suit building, it was  

found. The evidence of PW1 was relied on to find that he  

used to take a round of the premises and that he was affected  

whenever he visited his mother, was found believable and  

nuisance was found established.  

8. Regarding subletting, it was found there was no plea  

of protected license. The court found that subletting was  

duly established. Appeal was allowed.  

9. As stated earlier, the High Court has affirmed the  

findings of the Appellate Court.  

10. In regard to the contention that who was the tenant,  

it was found that the rent receipt showed that tenant was  

the first defendant. It showed that second defendant had  

taken the tenancy in the name of first defendant for his  

benefit. Secondly, it was found that after attaining  

majority, the first defendant has not rescinded the  

contract. Once it was found that first defendant was tenant,  

it was for second defendant to establish in what capacity  

he was in possession. It was found that second defendant  

was not in possession prior to 01.02.1973, and therefore,

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could not claim to be a protected sub-tenancy or protected  

tenancy.   

11. Regarding ground of non-user, the High Court affirmed  

the findings of the Appellate Court.  

12. Regarding nuisance, the High Court relied on the  

evidence of PW1. Noticing the limitations under Section 115  

of Code of Civil Procedure, the Revision was dismissed.  

13. We have heard the counsel for the parties.  

14. Learned counsel for the appellant would submit that  

none of the grounds have been made out. First defendant was  

a minor in 1971. On account of the belief and on the advice  

of an Astrologer the suit premises were taken on rent in  

the name of first defendant who was only five years of age.  

There could not be any tenancy in his favour. Second  

defendant was managing the business. License was in his  

name. There was neither illegal sub-tenancy nor nuisance.  

The case of non-user is also sought to be rebutted. Learned  

counsel for the respondents supported the Order. He also  

submitted quite clearly that the case of non-user is clearly

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established at any rate and he prayed for the rejection of  

the appeal.  

15. As regards the case of nuisance, Section 16(i)(c),  

inter alia, declares that conduct which is a nuisance or  

annoyance to the adjoining or neighbouring occupier by the  

tenants or others under him, is the ground for eviction.  

The nuisance, apparently, is attributed to the period of  

time when business of fast food was being carried out. We  

have noticed the findings of the Trial court. The evidence  

of none of the neighbours, be they any of the shopkeepers  

in the building itself or otherwise, is forthcoming.  

Details, as such, thereof are not seen established. The  

original plaintiff who resided in the same building has not  

given evidence. The evidence essentially constitutes of the  

deposition of PW1, the son of the original plaintiff and  

the complaint in writing. Admittedly, he does not reside  

in the building. He resides elsewhere. No doubt, his  

evidence that when he came to visit his mother and he would  

go around, is relied upon to conclude that he has  

experienced nuisance and that nuisance is established. We

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would think that having regard to the serious consequences  

which arise out of ground of nuisance, being established,  

the facts of this case may not justify eviction of  

appellants on the said ground. In fact, the High Court has  

not independently gone into the matter and it has affirmed  

the findings of the Appellate Forum. These findings, we have  

adverted to. We do not think that there was justification  

for the Appellate court or the High Court to sustain  

eviction on the ground of nuisance.  

16. As regards, the question whether there is subletting,  

it is necessary to notice the plea relating to subletting.  

It is to the effect that defendant no.1 has unlawfully  

sublet, assigned or transferred to third party for unlawful  

consideration. It is further alleged that plaintiff’s son  

Anil met the person who confirmed to him that it has been  

given to him on license basis. It is also stated in paragraph  

5 that the defendants have now given the suit premises to  

someone else. From this, we take it that the case of  

subletting is built around the act of putting the third  

party, who is named as Mr. Raja, in possession. There is

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no case, as such, set up that there is illegal subletting  

by defendant no.1 putting defendant no.2 in possession and  

the allegation is specific, as noted above.   

17. Regarding this allegation, we are of the view that the  

finding, given by the Trial Court, correctly brings out the  

position found in fact. The details, as to when Shri Raja  

was put in possession, as to when Shri Raja was found in  

possession, whether this possession was exclusive, the  

purpose for which Shri Raja was using the premises, are  

neither pleaded nor proved. The alternate case of  

subletting, apparently set up at the stage of argument, is  

that there is unlawful subletting to the second defendant.  

We have noted the pleading. The pleading of subletting is  

about subletting to a third party which was rejected by the  

Trial Court. In the Appellate Court, such subletting is  

found qua the second appellant. Having regard to the facts,  

beginning with the fact that first appellant was only nearly  

five years old, the registration was in the name of second  

appellant, the nature of the relationship between the  

appellants, viz., the second appellant is the father of the

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first appellant and also the case which was pleaded in the  

suit, we are of the view that finding of illegal subletting  

cannot be sustained.  

18. The remaining ground is a ground relating to non-user.  

Section 16(1)(n) of the Maharashtra Rent Control Act, 1999,  

reads as follows:   

“16(1)(n). that the premises have not  

been used without reasonable cause for  

the purpose for which they were let for  

a continuous period of six months  

immediately preceding the date of the  

suit.”   

19. The following elements must be established under  

Section 16(1)(n) - the premises must have been let out for  

a particular purpose; there must be non-user by the tenant  

for the purpose; the non-user must be without reasonable  

cause; the non-user must be for a continuous period of six  

months immediately preceding the date of the suit.  

20. Suit in this case was instituted on 20.10.2006.  

therefore, it is incumbent on the respondents to establish  

that the premises were not been used for a continuous period

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of six months which means from 20.04.2006 till the date of  

institution of the suit.  

21. The pleading of the plaintiff is, it was let out for  

the purpose of business of book shop. It is further case  

of the plaintiffs that about in or about 2005, the first  

appellant suddenly closed down the business in book store,  

and since then, till the date of the suit, was not using  

the suit premises for more than six months. It is also  

stated, in paragraph 5, that the defendants have started  

the business of preparation and sale of foodstuffs. As a  

result of tremendous pollution and smell and smoke, it  

caused lot of nuisance. Complaints were made and this  

business was closed. The business of readymade garments was  

also started and closed down. This is in short, the pleading  

of the plaintiff.   

22. The defendants, on the other hand, set up the case that  

on acquiring the premises for the business purpose, i.e.,  

selling of books and stationery, defendant no.2 ran the  

business for a number of years. Instead of aforesaid  

business, defendant no.2 started doing business of

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readymade garments and he did not succeed. Then he started  

fast food business and the same also could not be continued  

because no license was issued for running the same business.  

He instead started again the business of selling books under  

the name and style “M/s. Chetna Book Centre” and he  

continued to do the said business from the suit premises  

till date.  

23. What stands out from the aforesaid pleadings is that  

the second defendant, after taking over the premises under  

the lease, has started the business of selling books.  

Thereafter, from the pleadings of both the plaintiff and  

defendants, it is clear that appellant also carried on the  

business in readymade garments and also, still further,  

business in fast food. As to when the other businesses were  

carried on, is not clear from the plaint or written  

statement.   

24. The case sought to be set up before this Court would,  

however, reveal the following:  

It is the appellant’s that the book stall business  

was running slow. It was in the year 2005 that the  

second appellant decided to start new business. It is

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their case that the business in clothes was closed down  

immediately after it was started. Thereafter, in 2005,  

we must indeed find that the business of fast food was  

started. The fact that the business of fast food was  

being run, is clearly established by one circumstance  

and that is the complaint dated 27.10.2005 given  

regarding conduct of the business of fast food. This  

is the case of the respondents. Therefore, the fast  

food was also started and it apparently was closed  

down. Thereafter, it is to be noticed that according  

to the appellants, the second appellant started again  

business of book stall in the name and style as “Chetna  

Book Corner” in the year 2006 onwards (see Ground ‘F’  

in the Special Leave Petition). It is further stated  

that as the license was originally renewed in the name  

of Shree Krishna Fast Food Corner, the Municipal  

Corporation did not change the name later on and  

informed the second appellant that it will be changed  

at the time of renewal. Therefore, it is quite clear  

that the appellant’s case must be taken to be that till  

2005, business was been carried out in books from the  

suit premises. Interestingly, the plaintiff also, in  

paragraph 3, would state that in or around July 2005,  

the defendant no.1 suddenly closed down the business  

of book store. Therefore, it is clear, as day light,  

and it can be taken as established that the premises  

was being used for running the book store and it

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continued, even according to the plaintiff, till July  

2005. This is also the stand taken by the appellants,  

as we have noted. In quick succession, the business in  

garments was started which was short lived. Equally  

business in fast food was conducted and the same was  

also stopped.  

25. We must remind ourselves that the requirement of  

Section 16(1)(n) of the Maharashtra Rent Control Act, 1999  

will be satisfied if it is established that for a period  

of six months continuously from 20.04.2006 till the date  

of institution of the suit, the suit premises were not used  

by the tenant without a reasonable ground for the purpose  

for which it was let out. Since even the appellants do not  

have a case that the appellants were carrying on the  

business in readymade garments or fast food during the  

period, the only business that the appellants can lay store  

by, is the business in books.  

26.  The contention of the appellants would appear to be  

that the Appellate Court has proceeded on the basis that  

the registration was obtained on 30.11.2007. Appellate  

Court further finds that there is a gap of 13 months from

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the date of the institution of the suit and the date on which  

the registration was obtained on 30.11.2007. It is the case  

of the appellants that what the provision in question  

requires is that there must be non-user by the tenant for  

the period of six months immediately and continuously prior  

to the institution of the suit. The period of 13 months,  

if calculated from 30.01.2007 backwards, in point of time,  

would be a period commencing from 30.10.2006. The  

contention appears to be that the cause of action is the  

continuous non-user for six months prior to the use.  

Therefore, the relevant question has not been posed and  

answered, appears to be the argument of the appellants.  

27. Let us consider the registration certificates which  

have been produced. The registration certificate, under the  

Bombay Shops and Establishments Act, 1948, is seen to be  

certified on 9th day of September, 2005. It is in the name  

of the second appellant. Under the heading “Nature of  

business”, it is stated “Sale of books, Sale of snacks,  

juice, cold drink and ice cream”. The name of the

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establishment is known as “Chetna Book Centre”, “Shree  

Krishna Food Corner”.  

28. We can say the date of receipt, as far as 2005 is  

concerned, is 06.09.2005. Still further, there is a  

reference to receipt dated 09.01.2007. Under the  

Maharashtra Shops and Establishments Act, under Section  

7(2)(A), a registration certificate shall be valid upto the  

end of the year for which it is granted. As it stands now,  

it is valid for a period of twelve months from the date it  

is granted or renewed. This is after the substitution by  

Act 25 of 2013. Therefore, the provision, which is relevant,  

is the previous provision, under which, as noted, the  

registration certificate would be valid upto the end of the  

year for which it was granted. Therefore, even going by the  

registration certificate produced and under the Act, we  

would think that as it has been issued on 09.09.2005, it  

came to an end by the end of the year. The word “year” is  

defined in Section 2(32) as meaning that “a year commencing  

first day of January”. Thus, even the appellant apparently  

paid the fees for renewal of the registration only on

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09.01.2007. He did not pay any fees for renewal of the  

registration during the year 2006. On 30.11.2007, no doubt,  

registration certificate was issued. The result is that  

during the year 2006, it can be concluded that there was  

no registration for the business either in books or fast  

food.   

29. 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

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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.  

30. Appellants have attempted to produce additional  

documents. The document is a notice issued for keeping open  

the shop on a Monday on 11.09.2006. It is also stated, fine  

was paid of Rs.4,000/-. We find considerable substance in  

the contention of the respondent that additional evidence  

can be admitted only if the grounds of Order 41 Rule 27 are  

established. We find no merit in the said application.  

Consequently, it fails and it is dismissed.   

  31. We would think that in the circumstances of the case,  

having regard to the fact that two courts have found the  

ground of non-user under Section 16(1)(n) of the  

Maharashtra Rent Control Act, 1999 established and the  

facts as noted by us, particularly in an appeal after  

Special Leave, we do not deem it fit to interfere with the

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judgment of the High Court. The appeal shall stand  

dismissed.   

.............J.  

                  (ASHOK BHUSHAN)  

.............J.  

                                        (K.M. JOSEPH)  

New Delhi,  

May 08, 2019.