J.N. Patel, J.
1. The petitioners — original plaintiffs are trustees of Shah Ramji Ravji Sojpal Trust Estate which owns a building known as ‘Ramji Sojpal Building’ situate at Junction of S. K. Bole Road and Gokhale Road (North), Dadar, Mumbai. The original defendant was a monthly tenant in respect of shop bearing Nos. 6 and 7 in the said building on a monthly rent of Rs. 102.64, Inclusive of compensation for loft and cabin space for electric meter, prior to the termination of his tenancy by notice to quit dated 2nd April, 1964. The petitioners terminated the tenancy of the defendant as his business was closed since 31-5-1971 and thereafter started business of Worli Matka in the aforesaid shop premises through his son Chhaganlal Khimji and he and/or his servants have been convicted for using or allowing the shop premises for illegal purposes by running Worli Matka which is illegal gambling and against public policy. The petitioners further state that the shop premises have not been used without reasonable cause for the purpose for which they were let out for a continuous period of six months immediately preceding the date of the suit and, therefore, the petitioner-plaintiffs are entitled to recover from the defendant vacant and peaceful possession of the suit premises.
2. The defendant contended that he is carrying on business in the firm name M/s. Khimji Palan & Co. along with his two sons who were admitted as Partners in the said firm. The defendant denied that there has been any transfer or assignment of interest in the tenancy unlawfully or otherwise in contravention of the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the “Bombay Rent Act”). The defendant denied that the suit premises were let out for the purpose of running grain shop as alleged. The defendant denied that he closed the business in May 1971 and/or at all started Worli Matka business in the shop premises. He further denied that he and/or Chhaganlal Khimji and/or his servants were convicted of using or allowing the suit premises to be used for illegal purposes as
alleged. The defendant denied that the suit premises have not been used for the purpose for which they were let for a continuous period of six months immediately preceding the suit without reasonable cause or at all and, therefore, the suit of the plaintiffs being false and baseless deserves to be dismissed with costs.
3. On the basis of these pleadings, the trial Court having found that the plaintiffs have failed to prove that the defendant has unlawfully sub-let, assigned or transferred his interest in the suit premises to M/s. Khimji Palan & Co. or that the defendant has been convicted for using the suit premises or allowing the premises to be used for immoral and illegal purpose and that the defendant is not using the suit premises for six months immediately preceding the date of the suit.
4. The learned trial Judge also found that the plaintiffs failed to prove that the defendant has changed the user of the suit premises which resulted in dismissal of the suit. The matter was carried in appeal. The only ground which was pressed into service for eviction of the defendant was non-user of the suit premises as contemplated under Section 13(1)(k) of the Bombay Rent Act. The appellate Court found that the plaintiff has failed to establish the ground of non-user of the suit premises by the defendant on the basis that the defendant has placed on record voluminous documentary evidence in support of his case and, therefore, dismissed the appeal. It is these two concurrent findings of fact and the dismissal of the suit by the two Courts which are impugned in this petition.
5. Mr. Walawalkar, learned counsel for the petitioners, submitted that this Court will have to examine the two judgments impugned herein on the ground as to whether the finding of the two Courts below can be sustained in the absence of the defendant’s failure to discharge the onus placed after the plaintiffs having prima facie primarily discharged the burden of proving that the business in question which was being carried out by the defendant-tenant was discontinued from 31-5-1971 and the shop was closed and the premises were not in use till the date of filing of the suit. Another contention of the learned counsel for the petitioners is that the finding of the Courts below is perverse on the basis of record as the Court has not considered the documents placed on record by the defendant in proper perspective. It is submitted that the documents placed on record by the defendant itself would go to show that the shop premises were not in use from 31-5-1971 till 22-11-1972 as the licence obtained by the defendant-tenant to run the medical shop was itself granted with effect from 22-11-1972 and, therefore, merely because the defendant in his evidence has asserted that he was carrying on some business of grocery other than the items sold under the fair price shop could not itself establish that the defendant was carrying on the business in the shop premises during the said period.
6. The learned counsel for the petitioners submitted that it is a well-settled law of evidence that if a party fails to produce a document when called upon and which otherwise would have established its case, the Court should draw adverse inference against such party. According to him, in the present case, in spite of notice to produce being given to the defendant, the defendant has failed to place on record all the necessary documents which were in his possession. It is submitted that the excuse of not producing the document given by the defendant was that the said documents were eaten away by white-ants and cockroaches. It is submitted by Mr. Walawalkar, learned counsel for the petitioners, that these documents would have gone a long way to show whether any business was being carried out in the premises or not as in the ordinary course of business, the defendant would have maintained these documents. The very fact that the defendant could not produce these documents only leads to the inference that no such business as claimed by the defendant was being done in the premises and, therefore, the defendant is not in a position to produce such document and has come up with an excuse which cannot be accepted in law.
7. The learned counsel for the petitioner has placed reliance on the decision of this Court in Babhutmal Raichand v. Laxmibai, reported in (1972) 74 Bom LR 214; and Achut Pandurang v. Sadashiv, , to emphasise as to what is required to be examined in a suit for eviction under Section 13(1)(c) of the Bombay Rent Act. He has also placed reliance in Murugesam Pillai v. Manipkavasaka Pandara, reported in C1917) 44 Ind App 98 : (AIR 1917 PC 6), in order to show that best evidence should be furnished before the Court and if the party who is in possession of such evidence fails to give assistance to the Court by producing such evidence, adverse inference should be drawn. It is submitted that this principle was followed by the apex Court in the case of Hiralalv. Badkulal, , and in the case of Gopal Krishnaji Ketkar v. Mohamed Haji Latif, .
8. Mr. Abhyankar, learned counsel for the respondent-defendant, submitted that the plaintiffs have come to the Court seeking a decree for eviction against the defendant-tenant on four grounds; firstly, change of user; (ii) non-user; (iii) sub-letting; and (iv) using the premises for illegal purposes; but in appeal he has pressed only one ground of non-user. Mr. Abhyankar drew my attention to the case of the plaintiffs by referring to the claim and submitted that the plaintiffs have specifically come with a case that the tenanted premises were let out to the defendant for running a grain-shop. The defendant, however, closed his grain and ration shop business since 31st May, 1971 and thereafter started business of Worli Matka in the aforesaid shop premises through his son Chhaganlal Khimji and he and/or his servants have been convicted for using or allowing the shop premises for illegal purposes by running Worli Matka which is illegal gambling and against public policy and, secondly, that the shop premises have not been used without reasonable cause for the purpose for which they were let out for a continuous period of six months immediately preceding the date of the suit. Therefore, now the plaintiffs cannot be allowed to go beyond their pleading by pressing into service the ground of non-user of the shop premises . Mr. Abhyankar submitted that the defendants have in their evidence sufficiently established that the premises were not lying unused by producing various documents in support of their case such as income-tax returns for the period in question, sales-tax registration certificate, electricity bill, telephone bill and so also the charges paid for weather frame and stall board for the said period. The plaintiffs have also placed on record the Registration Certificate of Establishment for the period 1968 to 1977. It is submitted that the licence to sell, stock or exhibit for sale or distribute by retail drugs is for the period 22-11-1972 to 31-12-1973. This by itself would not show that the plaintiffs were not doing any business in the premises prior to this. On the other hand, the plaintiffs after closure of the ration shop have changed over to the business of retail medicine for which they made necessary preparation by purchasing a refrigerator for which documents have been produced. Therefore, it cannot be said that the shop premises were not used by the plaintiffs which would attract Section 13(1)(k).
9. Mr. Abhyankar submitted that the findings given by the two Courts do not call for any interference as these are based on evidence on record. Mr. Abhyankar pointed out that the trial Court has specifically arrived at the finding that the plaintiffs could not prove the purpose for which the suit premises were initially let out and, therefore, change of user from rationing articles to non-rationing articles does not mean that non-user of the premises and, therefore, the petition deserves to be dismissed.
10. There cannot be any quarrel about the legal proposition canvassed by the learned counsel for the petitioners that the best available evidence should be placed before the Court. It is the contention of the learned counsel for the petitioners that though the petitioners have discharged their initial burden that the shop premises were closed from road-side and were not in use, the onus should shift to the defendant-tenant to show that the shop was actually in use. The principle of burden of proof is based on the rule i.e. incumbent probation qui dicit, non qui negat to mean that the burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it; for a negative is usually incapable of proof. In the present case, the plaintiffs came out with a specific pleading that on termination of the ration shop, the defendant-tenant closed the shop from front but used it for an illegal purpose i.e. for running a matka den. Unfortunately, the plaintiffs could not lead any evidence to show that the defendant-tenant was using the premises for illegal purpose as pleaded. The defendant-tenant has not only denied this fact but has in terms led evidence to show that he was running his business. It has further come on record that the defendant-tenant found that the ration shop was not profitable and he was not successful in carrying on with the grocery business and so he has changed his business to selling of medicine drugs in retail. To the action brought by the plaintiff-landlords that they are entitled to seek eviction of the defendant-tenant as contemplated under Section 13(1)(k) of the Bombay Rent Act, the plaintiffs ought to have discharged their burden as it is a settled principle of the Law of Evidence that if no evidence is given by the party on whom the burden is cast, the issue must be found against him. The facts and circumstances placed on record by the defendant-tenant clearly indicate that he has been successful in rebutting the prima facie case made out by the plaintiffs. Further on the principle enunciated in Section 114(g) of the Evidence Act, it can be said that the plaintiff cannot take advantage of the doctrine of onus of proof as it is a settled law that the plaintiff should stand on his own legs and merely because the defendant is unable to produce certain documents for which he has given a plausible explanation and even if this explanation is not accepted, still it does not dislodge the defendant-tenant as he has otherwise produced sufficient documents of the period in question to show that he was doing business in the premises and the premises were in use for the said purpose.
11. The short question which requires consideration of this Court is as to, whether during the period 31-5-1971 till 3-11-1972 the suit premises had not been used without reasonable cause for the purpose for which it was let out for a continuous period of six months immediately preceding the date of the suit. The only evidence on the point of non-user led by the plaintiff is by examining Hansraj Shah. In his evidence before the Court, the witness has specifically stated that the defendant was carrying on business of grain and kirana in the suit premises in the name of M/s. Khimji Palan & Co. and prior to 1971, business of grain and kirana was being run in the suit premises. There was also ration shop in the suit premises. The said business of ration shop was discontinued in the year 1971 and the plaintiffs found that the suit premises were closed thereafter from road-side. They made enquiries with the Rationing Officer and came to know by a letter at Exh. H that the defendant has surrendered the business of fair-price shop from 31-5-1971. In the subsequent part of his evidence, he has stated that after closure of the ration shop, Chhaganbhai was doing matka business in the rear portion of the suit premises. From closure of the said rationing business till filing of the suit, no business was being done in the suit premises. Chhaganbhai has engaged some servants for the business of matka and he was convicted in some cases. Against this, the defendant has examined Chaganlal Chheda who has deposed that after cancellation of the business of the ration shop, he was carrying on grocery business during the period from May, 1971 to November, 1971. It is true that though he had maintained documents about his grocery business, the record has been eaten up by white-ants and cockroaches. This by itself would not dislodge the claim of the defendant that during the said period, he was carrying on with grocery business in the suit premises. The defendant has placed on record documents like payments made to the Telephone Department vide Exh. 11 colly., electricity bill (Exh. 10 colly.), payments made to the Corporation for weather frame (Exh. 9 colly.) and registration certificate of the establishment (Exh. 8) which covers the period in dispute. It is not disputed that the defendant obtained licence to sell, stock or exhibit for sale or distribute drugs by retail from 22-11-1972 to 31-12-1973 i.e. after filing of the suit. But this by itself would not show that the defendant was not doing any business in the premises prior to this.
12. If the evidence of the parties is weighed, it cannot be said that the plaintiffs by merely stating on oath that the defendant was not doing any business in the premises during the said period except for running a matka den would entitle them to evict the defendant from the premises. The evidence of the defendant as well as the documents placed before the Court would show that the premises were not kept idle and in all probability it was used for business. In this background, it cannot be said that the two Courts below committed any error or illegality in dismissing the suit of the plaintiffs on the ground of Section 13(1)(k) of the Bombay Rent Act. Therefore, I find no merit in the petition and the same is dismissed with no order as to costs. The rule is discharged.
13. The issuance of certified copy is expedited.