JUDGMENT : 1. Present petitioners have brought this Civil Revision Application u/s. 29(2) of the Bombay Rent Act seeking following reliefs; “A. Your Lordships be pleased to admit the application. B. Your Lordships be pleased to call for Record and Proceedings before this Hon’ble Court. C. Your Lordships be pleased to quash and set aside the order dated 21-4-2018 passed by the Learned Appellate bench of Small Cause Court in Civil Appeal No.63 of 2010 along with the order dated 14-5-2010 passed by the Learned Small Cause Court in HRP No.395 of 2001 and further be pleased to hold that the applicant herein no the tenant in arrears. D. Pending notice, admission and final hearing the present application, Your Lordship be pleased to stay the implementation of order dated 21-4-2018 passed by the Learned Appellate bench of Small Cause Court in Civil Appeal No.63 of 2010 along with the order dated 14-5-2010 passed by the Learned Small Cause Court in HRP No.395 of 2001 and further be pleased to direct the parties to maintain status quo.” 2. The case of the original plaintiffs is that defendants i.e. petitioners herein are tenants of the premises at monthly rent of Rs.50/- and have to pay municipal tax, education cess, electricity burning charges but though demanded, the original defendants did not pay the rent. The boundaries of the suit premises is well described in para 1 of the plaint and with an express condition that except to sale of towel no other use shall be permitted and tenants shall not transfer, assign the suit property or any part thereof to any person and without express permission of the land lord and not to put any permanent changes or permanent construction. 3. It is the case of the original plaintiff that since quite some time the tenant has not paid the rent though demanded neither to the plaintiffs nor to their predecessor and so much so have stopped the business and not used the suit shop since so many years and on account of that electricity connection is also disconnected. The defendant on the contrary carrying out the business in the name of “Haf’z Brothers” at the address shown and defendants are not in need of shop and simultaneously not handing over the possession which has led the owing the shop. The defendant on the contrary carrying out the business in the name of “Haf’z Brothers” at the address shown and defendants are not in need of shop and simultaneously not handing over the possession which has led the owing the shop. On the contrary petitioner has filed false suit being HRP Suit No. 1220 of 2000 against plaintiff restraining them from developing the property to which plaintiffs have filed reply denying the contentions and whenever the rent was being demanded, the defendants were no paying not only an amount of rent but municipal tax and utterly committed breach of Tenancy act and provisions of Bombay Rent Act. On account of this situation original plaintiff has also filed suit for vacating the suit premises and to handover the possession of the suit shop to the plaintiff. In the said suit defendant did appear and submitted written statement denying all the contentions of the plaintiffs and submitted that they have on the contrary paid an amount of Rs.1200/- but not accepted by the plaintiffs. By an order dated 14.05.2010 the suit came to be allowed against defendant tenants. As a result of this feeling aggrieved and dissatisfied of the said order they filed an appeal being Civil Appeal No. 63 of 2010 before the appellate bench of the Small Causes Court. The appellate bench of the Small Causes Court has also dismissed the appeal filed by the defendants – tenant and confirmed the order passed by the lower Court and it is against this concurrent decisions and findings of facts by both the Courts’ below the petitioners have submitted present Civil Revision Application under Section 29(2) of the Bombay Rent Act. 4. Learned advocate Mr. D. K. Patel for the petitioner has vehemently contended that both the Courts below have committed an error in appreciation of evidence and conclusion arrived at by both the Courts below is perverse. It is also submitted that Court Commissioner’s report is not that much having evidentiary value to dismiss the suit against present petitioners and in absence of lack of cogent evidence, the decision taken by the Courts below are persay not just and proper, which requires this Court to consider. 4.1 Learned advocate Mr. Patel has submitted that there is a clear misconception in the mind of the learned Judge while passing the decree under the provisions of Bombay Rent Act. 4.1 Learned advocate Mr. Patel has submitted that there is a clear misconception in the mind of the learned Judge while passing the decree under the provisions of Bombay Rent Act. Such provision for the purpose of passing the eviction decree is not established. As a result of this though there was burden to prove that, is on the shoulder of landlord, learned judge has passed a decree which requires to be set aside. On the contrary it is the duty of the land lord to prove beyond reasonable doubt that tenant was not using the suit premises. There is categorical assertion on the part of the petitioners that the suit premises are being used and, therefore, in absence of any cogent evidence sufficient on record, both the Courts below have committed gross error. In support of such contention, learned advocate for the petitioners is relying upon the decision by the High Court of Gujarat in case of Ashwinbhai C. Sheth vs. Bank of Baroda reported in 2002 (1) GLR 54 , and thereby has contended that it is the onus of landlord if he wants decree of eviction. Learned advocate has submitted that even otherwise impugned orders passed by both the Courts below are not well supported by cogent reasons and that would be a valid ground for assailing the impugned orders. On the contrary Section 23 of the Rent Act ought to have brought to the notice of the Court which in any form not taken into consideration, which resulted into an error of exercising jurisdiction which requires to be corrected by quashing and setting aside the impugned order. 4.2 Learned advocate has further contended that Section 29(2) of the Bombay Rent Act is not that much limited as compared to Section 115 of the Code of Civil Procedure. The Court can reappreciate the evidence. Learned advocate has request to allow the petition. No other submissions are made. 5. To meet with the stand taken by learned advocate for the petitioners, learned advocate Mr. Umang K. Choksi appearing for the respondents has submitted that here is the case in which both the courts below concurrently came to the conclusion that decree is needed on the basis of evidence available on record. No other submissions are made. 5. To meet with the stand taken by learned advocate for the petitioners, learned advocate Mr. Umang K. Choksi appearing for the respondents has submitted that here is the case in which both the courts below concurrently came to the conclusion that decree is needed on the basis of evidence available on record. In fact, bare reading of orders itself makes it clear that the decision arrived at by the both the courts below are well within the bounds of authority and after affording adequate opportunity to the parties to the proceedings, same are passed and when such kind of exercise of jurisdiction, this Court would not like to interfere with. Hence learned advocate for the respondent has requested that revision petition be dismissed and the petitioner i.e. original defendant may be directed to hand over the possession of the premises at the earliest. 6. Having heard learned advocates for the respective parties and having gone through the material on record, Court is of the opinion that some of the relevant circumstances are not possible to be unnoticed. 6.1 First of all it clearly transpires from the orders passed by the Courts below that while coming to the ultimate conclusion the provisions contained under Order 13 (1)(K) Bombay Rents, Hotel & Lodging House Rates Control Act, 1947 has been examined minutely and in the context of evidence which has been produced and the orders passed by the Court in HRP Suit No. 1220 of 2000 have also been considered. Additionally, the Court Commissioner’s report and the map was also considered at Exh.51 and 52. The second Court Commissioner’s report was also considered at Exh.48 and 49 respectively and the conclusion arrived at with regards to the disputed premises is inextenso dealt with by the Courts below and only thereafter arrived at ultimate conclusion. 6.2 It has been observed that upon perusal of both the Court Commissioners report, clearly it is found that premises is in non use condition. As a result of this, after considering the stand taken by the petitioners an order is passed which order has also been reexamined by the appellate forum and the orders are found to be passed by such critical examination and analysis of evidence as a whole. As a result of this, after considering the stand taken by the petitioners an order is passed which order has also been reexamined by the appellate forum and the orders are found to be passed by such critical examination and analysis of evidence as a whole. This Court is of the considered opinion that the fact findings authorities i.e. both the Courts below have arrived at particular conclusion, there is hardly any scope of reassessing and there is very limited power to the revisional jurisdiction. This Civil Revision Application accordingly does not call for any interference. 6.3 Apart from that a detail conclusion is arrived at in para 6 and 7 of the learned trial Court’s order and the reasons which are based on proper preposition of law which has been cited before the Court. Such cannot be said to be perverse in any form. Relevant para 6 and 7 are therefore reproduced herein after; “6. Non user without reasonable cause for obtaining possession under this clause, landlord has to prove (I) that premises have not been used for the purpose for which they were let, (ii) that such non user was for a continuous period of six months immediately preceding the date of the suit and (iii) that such non user was without reasonable cause. If the plaintiff’s fall to establish any one of the above factors, they fall in their suit. Once the plaintiffs prove that there was non user of the premises for a statutory period burden shifts to the tenant to prove that there was reasonable cause for such non user. Under the Bombay Rent Act possession by merely keeping furniture or vessels is not enough. Tenant must actually used the premises. Here in this case report of the court commissioner and as discussed above, only articles and garbage and vessels are lying in the suit premises. But tenanted property is in non user condition. In GLR 1996 (2) page 404, the ratio laid down by the Hon’ble Gujarat High Court that tenant is bout to use the premises for which is is let. Non using of premises for 12 to 13 years without reasonable cause spasmodic or casual visits of the premises by the tenant cannot be said to be regular or actual use. Decree of eviction under Section 13(1) (k) upheld. Non using of premises for 12 to 13 years without reasonable cause spasmodic or casual visits of the premises by the tenant cannot be said to be regular or actual use. Decree of eviction under Section 13(1) (k) upheld. In the aforesaid judgment object and scheme of clause (k) of sub-section 1 of section 13 is that tenant should use the premises for the purpose of the premises were let. He cannot keep the premises close or lock without using it. In absence of reasonable cause needless to state that there is a public policy under this clause that non tenant should be allowed to defeat the object and purpose of clause (k) of sub-section (1) of Section 13. if the court is satisfied that tenant has not used the demise premises for the purpose of which they were let for a continuous period of six months I,immediately preceding the date of the suit without any reasonable cause, the court is empowered to enactment decree. Even it is presumed that tenant makes casual visits that ipso facto does not constitute reasonable cause for non user saving himself from the rigorous provision of section 13(1) (k). In short spasmodic or casual visit to the tenanted property is no considered and contemplated a regular or actual user. Mere occupation or presence of furniture in the premises is not user. Here occupation differs from user. The premises must be actually used as contradicted to occupied. Legislature does not use the word “that tenant has not used the premises without reasonable cause for the purpose for which they were let to use. That words that premises have not been used without reasonable cause. In case of non user triumph card is premises and not the person. In short, tenanted premises has every right to decide the ground of non user and the importance of the premises is more than tenant and landlord. Learned advocate for the defendant has argued that during the pendency of this suit plaintiff has sold out the shop publicly known as Hafiz Stores. For the purpose of this argument, defendant has submitted in his cross examination that in the Dhalgarwad, Near Salman, shop name is Haf’z Stores was sold by him and it is sold by him after filing this suit. So the conduct of the tenant is to use the landlord’s property and to sell his own property. For the purpose of this argument, defendant has submitted in his cross examination that in the Dhalgarwad, Near Salman, shop name is Haf’z Stores was sold by him and it is sold by him after filing this suit. So the conduct of the tenant is to use the landlord’s property and to sell his own property. The defendant has also admitted in his cross examination that near tenanted premises his residential premises is existing. His residential house number MC 2771. He has also admitted that shop number of the disputed property is M. C. No.2772 and most important admission made by the defendant is that he is residing in three storeyed building. On the ground floor of that house, there is a shop and shop is in closed condition since the shop is purchased. The shop is purchased approximately 10 years before. The aforesaid depositions obviously and ostensibly mention that tenant has other option to carry out the business except the tenanted property. He has his own occupied shop on the ground floor of his residential premises. Whey the tenant not using this shop for running his business. The tenant has renditioned the option in past and future as well as present because in past his ownership property was sold by him inspite of his own ownership property. At present tenant has his tenanted property as well as his own occupied property. During the pendenty of the suit he has sold the shop. The conduct of the tenant is malafide. He is not using the tenanted property since long and sold the own occupied shop and closed his other own occupied shops. So case of civil nature, principle of preponderance and probability is very important and in civil case presumption is also important factor. Here in this case, behaviors and conduct of the tenant is not only mala fide but illegal occupation because tenanted property is in non user condition and his own occupied property is closed. 7. Tenanted property was rented before 40 years and it is rented for the business of cloth. He is carrying out business with his own name. For the business purpose, books of account, bill book, cash book etc. have been kept by him and except him no one is partner in his business. 7. Tenanted property was rented before 40 years and it is rented for the business of cloth. He is carrying out business with his own name. For the business purpose, books of account, bill book, cash book etc. have been kept by him and except him no one is partner in his business. The most important admission has been made by the tenant that at present he has no books of account, business is continuously in running condition. Light bill and municipal tax bill have not been produced by the tenant. But as per the report of the court commissioner in both the suits, electricity connection is detached position. He has admitted that tenanted property is in hazardous condition and it is essential to repair the tenant property. But inspite of obtaining chance to repairing by the order of the court, tenant has not taken any steps to repair the tenanted premises and tenant has caused unnecessary delay in carrying out the tenanted repairing and put the tenanted property in hazardous condition. That Ahmedabad Municipal Corporation, no application is given by the tenant for hazardous condition of the suit property. Why the tenant has not taken plea and advantage of hazardous condition of tenanted property? He has admitted that he has informed to previous owner orally to repair the suit premises. But no written permission is sougth by him for tenable repairs. So it is clearly presumed that tenant is not interested in making tenantable repairing in tenanted premises. He wants to make the property in non use condition and catena of the period regarding tenantable repairs is mentioned in the aforesaid discussion. At present there is no problem with the tenant. Why the tenant has not made tenantbale repairs in the suit preemies. When the bill book, license of shops and establishment, books of account and other mercantile documents are not available with the tenant, so it is presumed that business has not been carried out by him and suit premises is in non use condition. Why the tenant has not made tenantbale repairs in the suit preemies. When the bill book, license of shops and establishment, books of account and other mercantile documents are not available with the tenant, so it is presumed that business has not been carried out by him and suit premises is in non use condition. If the tenant wants to do the business, he has another shop to carry the business and without reasonable cause defendant – tenant has no right to put the suit premises in non use condition and it is in non used condition since more than period of six months immediately preceding the date of the suit as alleged.” 6.4 These observations of the trial court which are based upon proper appreciation of evidence on record have also been further examined by the appellate court in RCA No.63 of 2010 and view is expressed by the learned appellate judge. When that being so clearly revisional jurisdictional is not be used to substitute any findings even if another view is possible unless and until there appears to be clear non application of mind or perversity of any nature. As a result of this no case is made out by the petitioner. 6.5 Section 13(1) (k) of the Bombay Rents, Hotel & Lodging House Rates Control Act, 1947 is clearly postulating the requirement that the premises have not been used without reasonable cause for the purpose on which they were let for a continuous period of six months immediately preceding the date of the suit tenant and that has been well analyzed by the decision delivered by the High Court which is reported in 1981 BRC 245 in the case of Mohmad Umar Mahadbhai Pathawala vs. Dr. Mahyaddin Abdul Raheman Kagdi. The trial Court has in the context of said decision has evaluated the Court Commissioner’s report and here both the Court Commissioner’s reports are clearly establishing that the premises being not in use. That being so looking to the scope under section 29(2) of the Bombay Rent Act, this Court is not inclined to exercise the discretion. The observations made in a decision in case of Rukmini Amma Saradamma vs. Kallyani Sulochana reported in AIR 1993 SC 1616 and the relevant observations contained in para 21 since relevant considered by the Court deem it proper to reproduce herein after; “21. The observations made in a decision in case of Rukmini Amma Saradamma vs. Kallyani Sulochana reported in AIR 1993 SC 1616 and the relevant observations contained in para 21 since relevant considered by the Court deem it proper to reproduce herein after; “21. We are afraid this approach of the High Court is wrong. Even the wider language of S. 20 of the Act cannot enable the High Court to act as a first or a second court of appeal. Otherwise the distinction between appellate and revisional jurisdiction will get obliterated. Hence, the High Court was not right in re-appreciating the entire evidence both oral or documentary in the light of the Commissioner's report (Exts. C1 and C2 Mahazar). In our considered view, the High Court had travelled far beyond the revisional jurisdiction. Even by the presence of the word "propriety" it cannot mean that there could be a re-appreciation of evidence. Of course, the revisional court can come to a different conclusion but not on a re-appreciation of evidence; on the contrary, by confining itself to legality, regularity and propriety of the order impugned before it. Therefore, we are unable to agree with the reasoning of the High Court with reference to the exercise of revisional jurisdiction.” 6.6 Now in the context of aforesaid situation a reference which has been made of a decision in case of Ashwinbhai (supra). the said decision is based upon an issue as to whose burden it is to establish Section 13(1) (k) but this point not appeared to have been raised before the Court and entire suit is allowed by the petitioners to go on and petitioners have participated and laid evidence and contested. As a result of this since the facts in the said decision are quite distinct and different this Court is not inclined to allow the petitioner to take an assistance out of it. In fact here is the case in which two Court Commissioner’s report are concurring and establishing prima facie that premises is not in use and the said Court Commissioner’s reports are forming part of the record and prima facie believed by both the Court’s below and the said circumstances will not available any assistance from the decision which has been cited and, therefore the said decision is of no avail of the petitioner. It is settled position of law that different facts or one additional fact would make a world of difference in applying principle of precedent. Hence revision application has no substance. 7. In the wake of aforesaid observations made by the Honourable Supreme Court the facts and circumstances of the present case are not permitting the Court to take any different view as there appears to be no perversity. The well reasoned orders are passed by the Courts below which clearly indicate that there is no illegality committed. The conclusion is based upon the critical analysis of the documentary evidence as well as oral testimony, this Court is not inclined to exercise the revisional jurisdiction. Accordingly orders passed by the Courts below are just and proper not required to be interfered with. Resultantly the revision application fails and the same is dismissed with no orders as to costs. Rule is discharged.