Judgment ( 1. ) BEING aggrieved by the judgment and decree dated 17-7-1997 passed in civil Regular Appeal No. 14/1986, by IV th Additional District Judge, Indore wherein judgment and decree dated 30-4-1986, passed by IX th Civil Judge class- II, in Civil Suit No. 91-A/1984, was set aside and the suit filed by the appellants was dismissed, the present appeal has been filed, which has been admitted for final hearing vide order dated 23-2-1998 on the following substantial questions of law:- (1) Whether the finding as to the non user of the accommodation is perverse ? (2) Whether because of the absence of the defendant/tenant from indore during working hours and presumption could be raised that the accommodation is not being used for the purpose it was taken on rent ? ( 2. ) SHORT facts of the case are that on 2-8-1976, a suit for eviction was filed by the appellants against the respondent under Section 12 (1) (a) and (d) of the M. P. Accommodation Control Act, 1961 (which shall be referred hereinafter as act), alleging that the respondent is tenant in a shop situated at 76, Sheetlamata Bazar, Indore @ Rs. 80/- per month. It was alleged in the plaint that the respondent is in arrears of rent which has not been paid by the respondent in spite of notice of demand. It was also alleged that the respondent is not using the suit accommodation for the purpose for which it was let out since last 6 months. On the basis of the aforesaid pleadings decree of eviction was prayed. Respondent filed a written statement wherein plaint allegations were denied and it was alleged that respondent is carrying on business from the suit accommodation regularly. It was prayed that suit be dismissed. ( 3. ) ON the basis of pleadings of the parties, learned Trial Court framed the issues, recorded the evidence and decreed the suit vide judgment and decree dated 30-4-1986 under Section 12 (1) (d) of the Act. However, the decree under section 12 (1) (a) of the Act was refused. It was prayed that suit be dismissed. ( 3. ) ON the basis of pleadings of the parties, learned Trial Court framed the issues, recorded the evidence and decreed the suit vide judgment and decree dated 30-4-1986 under Section 12 (1) (d) of the Act. However, the decree under section 12 (1) (a) of the Act was refused. Against the judgment and decree passed by the learned Trial Court an appeal was filed by the respondent which was dismissed, hence, the respondent filed the second appeal before this Court which was numbered as S. A. No. 08/1988 and was allowed vide judgment dated 10-3-1997, whereby the case was remanded to the First Appellate Court to decide the appeal afresh. ( 4. ) AFTER the remand the appeal was reheard and vide judgment and decree dated 23-12-1987, learned First Appellate Court allowed the appeal filed by the respondent and dismissed the suit against which present appeal has been filed. ( 5. ) LEARNED Counsel for the appellant submits that learned First appellate Court committed error of law in allowing the appeal and dismissing the suit. It is submitted that as per the decision passed by this Court, the First appellate Court was required to consider whether the initial burden is properly discharged by the landlord and whether the judgment of the Trial Court was duly appreciated. It is submitted that as per the direction of this Court, it was to be examined that whether the landlord has properly discharged the initial burden and the onus has shifted to the tenant. Learned Counsel submits that appellant has examined P. W. 2, Ramdayal, power of attorney holder of the appellant who has categorically stated that the suit shop was not being used for the purpose for which it was let out. It was specifically pleaded by the appellant that there is an electricity connection in the suit accommodation and the respondent is paying minimum electrical charges, as there is no consumption. Learned Counsel submits that it is proved from the evidence that respondent is having a shop at dewas and the respondent himself has submitted the Railway passes, which goes to show that respondent use to go to Dewas daily in working hours. It is also submitted that the respondent himself has admitted that wife and son of the respondent is residing at Dewas. ( 6. It is also submitted that the respondent himself has admitted that wife and son of the respondent is residing at Dewas. ( 6. ) LEARNED Counsel placed reliance on a decision in the matter of bhagwandas Vs. Nathulal, reported in 1993 (11) MPWN124, wherein it was held that; it cannot be supposed that husband is living separately from his wife. It was also held that the statutory requirement is that the accommodation is not used for a period of 6 months prior to the date of filing of the suit for which it was let out. ( 7. ) FURTHER reliance was placed on a direction in the matter of hitimbhai Vs. Mahila Kamalabai, reported in 2001 (11) MPACJ 122, wherein it was held that burden was on the tenant/defendant to prove that the suit accommodation was not used for the purpose for which it was let out for a reasonable cause. It was further observed that the respondent failed to prove that the respondent was running the shop and doing the business from the suit shop. ( 8. ) LEARNED Counsel for the appellant submits that the best evidence was available with the respondent, which were account books, the vouchers and cash memos from which it could have been proved that at the relevant time shop was being used for the purpose for which it was let out. It is submitted that no documentary evidence was produced by the respondent. ( 9. ) LEARNED Counsel for the appellant further submits that the rent has not been deposited by the respondent regularly, as per Section 13 (1) of the Act. It is submitted that during the pendency of the appeal as well the respondent was required to deposit monthly rent regularly. ( 10. ) SHRI Gopal Hardia, learned Counsel for the respondent submits that the learned Appellate Court has considered the evidence as per the direction of this Court. It is submitted that the appellant failed to prove that the suit accommodation was not used for the purpose for which it was let out. Since the appellant failed to discharge the initial burden, therefore, the onus was not on the respondent to prove that the suit accommodation was not being used for the purpose for which it was let out. Since the appellant failed to discharge the initial burden, therefore, the onus was not on the respondent to prove that the suit accommodation was not being used for the purpose for which it was let out. Learned Counsel submits that respondent has been examined himself and also examined D. W. 2, Kalyanmal, who was the owner of adjoining shop who has stated that the suit accommodation was being used for the purpose for which it was let out. It is also submitted that appellant has examined the postman as P. W. 1, who has also stated that shop was found open during the time of service of notice. So far as the arrears of rent is concerned learned Counsel submits that the appellant himself has not pressed the eviction on the ground under Section 12 (1) (a) of the Act, which is evidence from the judgment passed by the learned Appellate Court. Apart from this respondent has regularly depositing the rent throughout the trial and also during pendency of the appeal. It is submitted that even if respondent has committed any delay in depositing the rent then too appellant is not entitled for decree of eviction because the ground under Section 12 (1) (a) itself has been given-up by the appellant. ( 11. ) THE suit for eviction was filed on 2-8-1976. The notice is dated 9-2-1976. P. W. 1, postman has stated that postal remark of refused on Exhibit p-1, was made by him, as he found that son of the respondent was sitting on the shop. Exhibit P-1, envelope contained the notice dated 9-2-1976, Exhibit P-3, which is not sufficient to hold that appellant failed to discharge the initial burden. So far as initial burden which was on appellants is concerned, it was discharged by the appellants by pleading and proving the documents that suit shop remains closed as there is no consumption of electricity and it is only the minimum charges, which are being paid by the respondent. Exhibit D-62 and d-63 are the rent receipts for the year 1976, itself, in which the electricity charges are shown as minimum. Exhibit D-80, is the monthly tickets of railways, which goes to show that respondent was residing permanently at Dewas as all the monthly tickets which are more than 15, were issued from Dewas. Exhibit D-62 and d-63 are the rent receipts for the year 1976, itself, in which the electricity charges are shown as minimum. Exhibit D-80, is the monthly tickets of railways, which goes to show that respondent was residing permanently at Dewas as all the monthly tickets which are more than 15, were issued from Dewas. It also appears to be correct as the respondent himself has admitted that wife and son were residing at Dewas and were running the shop. The only document which has been filed by the respondent is Exhibit D-81 and D-82, dated 12-6-1976, issued by Bank Note Press, Dewas, which goes to show that quotations were invited from the respondent for supply of bandage cloth. ( 12. ) SINCE the respondent was doing the business of Garments and were supplying the goods to Government Departments, such as Bank Press Note, dewas, therefore, there should have been number of documents which must have been in the possession of respondent to demonstrate that the respondent was carrying-on business between 2-2-1976 to 2-8-1976, as the suit was filed on 2-8-1976. The respondent could have produced the account books, profit and loss accounts, income and expenditure account, bills/cash memos of goods purchased and sold in the relevant period, but none of the documents have been filed by the respondent. On the contrary the electricity charges, which have been payable by the respondent are of the minimum amount which are required to be paid, even then when there is no consumption of electricity, which goes to show that the suit property was not being used at the relevant time for the purpose for which it was let out. ( 13. ) IN the facts and circumstances of the case learned Appellate Court committed error of law in not passing the decree against the respondent under section 12 (1) (d) of the Act. In view of this the appeal is allowed. The judgment and decree passed by learned Appellate Court is set aside and the judgment and decree passed by learned Trial Court under Section 12 (1) (d) of the Act is restored. ( 14. ) WITH the aforesaid observations appeal stands disposed of. No order as to costs.