http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

PETITIONER: MOHAN AMBA PRASAD AGNIHOTRI & ORS.

       Vs.

RESPONDENT: BHASKAR BALWANT AHER (D) THROUGH LRS.  C

DATE OF JUDGMENT:       01/03/2000

BENCH: S.Rajendra Babu, S.S.M.Quadri

JUDGMENT:

     SYED SHAH MOHAMMED QUADRI, J.

     This  appeal  is directed against the judgment of  the High  Court of judicature at Bombay in Writ Petition No.4188 of  1989 passed on January 13, 1997.  The appellants are the landlords  of  the House No.  and C.T.S.No.1422, Kasba  Peth (old  House No.70 Raviwar Peth), Pune, (hereinafter referred to as the suit premises) which was leased out to the first respondent,  (Bhaskar  Balwant  Aher) who  died  during  the pendency of the proceedings.  His legal representatives were brought on record as respondents 1A to 1G.  Hereinafter, the parties  will  be referred to as the appellants  and  the respondents.   The  appellants  let out the  suit  premises which  comprised  of three rooms -- two rooms on  the  front side  for purposes of running a motorcycle workshop and  one room on the rear side for residential purposes -- on monthly rent  of Rs.45/-.  On August 30, 1985, the appellants  filed Civil  Suit  No.1423 of 1985 seeking eviction of  respondent No.1 from the suit premises on four grounds :  (i) bona fide personal requirement;  (ii) change of user;  (iii) imprudent use  causing damage to and waste of the suit premises;   and (iv)  causing nuisance and annoyance.  The suit was resisted denying  all  the four grounds.  On November 30,  1987,  the Principal  Judge,  Small Causes Court, Pune, found  all  the four  grounds  in favour of the appellants and  decreed  the suit  for  eviction  of the first respondent.   His  appeal, before  the  VIIth Additional District Judge, Pune,  against the said judgment and decree of the trial court, resulted in dismissal  on August 1, 1989.  The Appellate Court confirmed the  decree  of the trial court on three grounds;   however, the  ground  of  bona  fide   personal  requirement  of  the appellants  was  found against them.  The  respondents  then filed  Writ Petition No.4188 of 1989 under Articles 226  and 227  of the Constitution challenging the correctness of  the judgment  and decree of the VIIth Additional District Judge, Pune.   The  High Court reversed the finding of the  learned District Judge on all the three grounds and thus allowed the writ  petition  on  January  13, 1997, which  is  now  under challenge  in  this  appeal.  Mr.Uday Umesh  Lalit,  learned counsel  appearing for the appellants, has submitted that in an  application  under Article 227 of the Constitution,  the High  Court ought not to have reappreciated the evidence and set  aside  the findings of facts found by the courts  below concurrently  and that on this ground alone the order  under appeal  is liable to be set aside.  He argued the merits  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

grounds on which the findings of the courts below were upset by  the High Court.  Mr.  Makarand D.Adkar, learned  counsel for the respondents, submitted that the findings recorded by the courts below were perverse and unsustainable, therefore, the  High  Court  was  justified  in  interfering  with  the findings  of  fact and allowing the writ petition.   On  the first  submission of Mr.  Lalit, it will suffice to  observe that  it  is settled law that the jurisdiction of  the  High Court  under  Article 227 is not appellate but  supervisory. It cannot interfere with a finding of fact recorded by lower court/tribunal  unless  there is no evidence to support  the finding  or  the  finding  is perverse.  One  of  the  three grounds  on  which the courts below recorded the finding  in favour  of  the  appellants is change of user  of  the  suit premises  by  the respondents.  It has already been  noticed above  that the front rooms, which were let out for business purposes,  were being used for residential purposes and  the rear  room  which was let out for residential purposes,  was being   used  partly  for  storing   spare  parts   of   the motor-cycle.   This  finding  was reversed  relying  on  the judgment  of this Court in Gurdial Batra Vs.  Raj Kumar Jain [1989 (3) SCC 441] wherein it was held that the premises let out  for  running a cycle and rickshaw repair shop was  also being used for selling television sets.  The Court held that it  did not amount to change of user.  The view taken by the High  Court  is supported by the decisions of this Court  in Sant  Ram Vs.  Rajinder Lal and Ors.  [1979 (2) SCC 274] and Kisan  Dayanu Mano Vs.  Vithal Vishnu Mohandalo [1990 (Supp) SCC 654].  The second ground on which concurrent finding was recorded by the courts below is nuisance and annoyance.  The High  Court disturbed that finding on the ground that one of the  landlords  (Sharad)  who  lived  in  the  vicinity  was examined  as  a  witness  but he did not say  a  word  about nuisance  and annoyance, so there is no evidence to  support that  ground.  Our attention was invited to the  photographs and  the report of the Commissioner.  Inasmuch as a copy  of the  statement  of  Sharad was not filed in this  Court,  we cannot examine the reason on which the High Court interfered so  we decline to go into this aspect.  We are left with the ground  of imprudent use of the suit premises by  respondent No.1.  The courts below recorded concurrent finding that the first  respondent  was  guilty of imprudent  use,  causing damage  and  waste  to  the property.  This is  one  of  the grounds  to seek eviction of a tenant under Section 13(1)(a) of  the Bombay Rents, Hotel and Lodging House Rates  Control Act,  1947  (for short the Act), which reads as  follows:- 13.   (1)(a) that the tenant has committed any act contrary to  the  provision  of  clause (o) of  Section  108  of  the Transfer of Property Act, 1882;

     It,  in turn, provides that violation of clause (o) of Section  108 of the Transfer of Property Act, 1882 will be a ground  for  seeking  eviction  of   the  tenant.   It  has, therefore, become necessary to look to clause (o) of Section 108 of the Transfer of Property Act which runs thus :- 108. Rights and liabilities of lessor and lessee

     (a) to (n) *** *** ***

     (o)  the lessee may use the property and its  products (if  any) as a person of ordinary prudence would use them if they  were his own;  but he must not use, or permit  another to use, the property for a purpose other than that for which it  was leased, or fell or sell timber, pull down or  damage buildings belonging to the lessor, or work mines or quarries

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

not open when the lease was granted, or commit any other act which is destructive or permanently injurious thereto.

     A  plain  reading  of  the  provision  shows  that  it contains  various rights and liabilities of a lessee.  Among them  is  that  he  shall use the premises as  a  person  of ordinary  prudence as if they were his own and that he shall not damage the demised building.  The Trial Court as well as the  Appellate  Court found that the use of the premises  by the  first  respondent was imprudent which caused damage  to the  suit premises.  The High Court set aside that  finding. Though  the High Court noted that the respondents had stored the  spare parts of the motor-cycles in the backyard, in the passage and also on the roof which amounted to imprudent use of  the suit premises having noticed the photographs of  the suit  premises  and perused the report of the  Commissioner, which  mentions  that the tenants placed spare parts of  the motor-cycles and old motor-cycles in the backyard and on the roof,  it, however, commented that no evidence was  produced to  show that it had resulted in any injury or damage to the property  and  that  the  appellants had  not  examined  any witness  for  this purpose.  It may be pointed out  that  in para  7 of the plaint (Annexure A) the appellants  stated, By keeping the material on the tin-roof of the outhouse the defendant  has  damaged  the  same and hence  the  tins  are broken.   Though repeatedly informed to remove the said  old material  from  the  tin the defendant has not  removed  the same.  The defendant had denied keeping the waste  material over  the  premises  in his written  statement.   The  first appellant  was  examined as P.W.1.  He stated,  inter  alia, that  the  defendant  had kept  spare  parts  (unserviceable motor-cycle  and  motor-scooter tyres, tubes, etc.)  on  the roof  at the rear portion and that on account of storing the articles  on  the roof, tin-sheets had been broken.  He  has also  marked  the photograph of the tin-sheets of  the  roof (Annexure  D).   The High Court failed to notice both  the pleadings  and  the  proof on the aspect of  damage  to  the property  and  erroneously came to the conclusion  that  the finding  was not supported by any evidence and set aside the same on a non-existent ground.  This reason is sufficient to set aside the order of the High Court and restore the decree of eviction of the respondents passed by the Trial Court and confirmed by the Appellate Court.  Accordingly, we set aside the  impugned order of the High Court and restore the  order of eviction passed by the lower courts on the said ground by allowing  the  appeal.   In  view  of  the  fact  that   the respondents  are having their business and residence in  the suit  premises and they are having a large number of  family members,  we consider it just and appropriate to grant  time to  vacate the suit premises till December 31, 2000, subject to  their furnishing usual undertaking within two weeks from today  in this Court and we order accordingly.  The  parties are directed to bear their respective costs.