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PETITIONER: RAFAT ALL V.

       Vs.

RESPONDENT: SUGNI BAI AND OTHERS

DATE OF JUDGMENT:       18/11/1998

BENCH: S. SAGHIR AHMAD, K.T. THOMAS.

ACT:

HEADNOTE:

JUDGMENT: JUDGMENT Thomas J. Leave granted. A  building  situate  at  Mahboob  Gunj,   Hyderabad belonged to one Babu Lal.  He leased it out to the appellant in  1970  wherein  appellant  has been running a business by name M/s Royal Agro Industries.  Lathe  and  machinery  have been  installed  therein  for  the  purpose of the business. Babu Lal died leaving behind him the present respondents  as his legal heirs who are his widow and children.  In the year 1988 respondents/landlords launched a litigation against the appellant for evicting him from the leased premises.  Though the  respondents failed in the Rent Control court as well as in the Appellate Authority they succeeded in the High  Court of  Andhra  Pradesh,  where  in  a  revision  the concurrent findings were reversed and an order of eviction was  granted in favour of the landlords.  Hence, appellant has filed this appeal by special leave. Three  distinct  grounds  have  been  set  up by the respondents in their petition filed under the provisions  of Andhra  Pradesh Buildings (Lease, Rent and Eviction) CONTROL Act, 1960 (For short ’the Act’).  They are:   (1)  that  the tenant  had committed default In paying rent of the building from 1.11.1986 to 30.4.986, (2)thatthe tenant committed acts or waste by which damage has been caused  to  the  building. (3)  that the tenant has been committing acts of nuisance to other occupants of the buildings in the neighbour-hood. All  the  three  grounds  were  found  against   the respondent  by  the  Rent  Control Court which dismissed the petition for eviction.  When respondents filed appeal  under Section 20  of the Act.  the Appellate Authority also found, in concurrence with the findings of the Rent Control  Court, that the landlord failed to make out any one of the grounds. The appeal   was   accordingly   dismissed.    It  was  when repondents moved the High Court in revision under Section 22 of the Act that they succeeded as  a  learned  single  Judge Interfered  with  the  concurrent findings regarding all the three grounds. Learned single judge has stated as  follows  in  the concluding part of the impugned order.

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       "The findings  of  the  Courts  below  are         quite  arbitrary, perverse and capricious.         The orders under challenge cannot be  said         as free  from  legal  lacunae.  The Courts         failed  to  take  into  consideration  the         events  started  subsequent to leasing out         the  premises,  namely,  causing  nuisance         prior  lo the filing of eviction petition.         The  evidence  given  clearly  establishes         that  the  tenant  was  a  defaulter,  had         caused damage to the premises and  causing         nuisance   to   the  landlords  and  other         occupiers.  Having found that  the  orders         under  challenge  suffer  from illegality,         the  same  deserves  to  be   set   aside.         Accordingly,  the  CRP  is allowed and the         orders under challenge are set  aside  and         consequently,  the  eviction sought by the         landlords is granted." It is contended before us that learned single  judge made those observations without considering the reasoning of the  fact  finding  courts  and  without  adverting  to  the evidence and without keeping within the bounds of revisional jurisdiction conferred by Section 22 of the  Act.    Learned counsel  for  the  respondents,  on  the other hand, made an endeavour to show that the revisional powers under  the  Act are  not  so limited as in other similar enactments and that the High Court has wide powers to interfere  even  with  the concurring findings of fact, and looking from that angle the High Court has not acted beyond its jurisdiction.         Section 22 of the Act reads:         "22.  Revision:-(1) The High Court may, at         any  time,  on  the  application  of   any         aggrieved  party, call for and examine the         records relating to any  order  passed  or         proceeding  taken  under  this  Act by the         Controller in execution under  Section  15         or  by  the  appellate authority on appeal         under  Section  20,  for  the  purpose  of         satisfying  itself  as  to  the  legality,         regularity or of propriety of  such  order         or  proceeding, and may pass such order in         reference thereto as it thinks fit.         (2) The  costs  of  and  incident  to  all         proceedings,  before  the High Court under         sub-section   (1),   shall   be   in   its         discretion." The  appellation  given  to  the  Section  makes  it unmistakably clear that the power  conferred  thereunder  is revisional which means, it is a power of supervision.  It is well  neigh settled that a revisional Jurisdiction cannot be equated with appeal powers in all its parameters.  The power to call for and examine the records is for  the  purpose  of the  High  Court  to  satisfy  itself  as  to the "legality, regularity  or  propriety"  of  the  order  of   the   lower authority.   Even  such a widely worded frame of the Section may at best indicate that the revisional powers are  not  so restricted as in the enactments wherein the words are not so widely framed.    Nonetheless,  they  remain in the realm of Supervisory jurisdiction.   in  a  recent  decision  we  had occasion  to  consider  the scope of revisional jurisdiction under certain Rent Control enactments vide Sarla  Ahuja  vs. United  India  Insurance  Company Limited JT 1998(7) SC 297. Reference was then made to a  decision  wherein  words  used under Section 25 of the Tamil Nadu Buildings (Lease and Rent

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Control)  Act  1960  were  considered  [vide Sri Raj Lakshmi Dyeing Works vs Rangaswamy 1980 (4) SCC 259].  A  two  judge bench  has  observed  therein  that  "despite  wide language employed in the Section,  the  High  Court  quite  obviously should  not  interfere  with  the  findings  of  fact merely because it does  not  agree  with  to  the  finding  of  the subordinate authority." After adverting to it we have stated in Sarla Ahuja:         "The High Court in the  present  case  has         re-assessed  and re-appraised the evidence         afresh to reach  a  different  finding  as         though   it   was   exercising   appellate         jurisdiction.    No   doubt   even   while         exercising   revisional   jurisdiction,  a         re-appraisal of evidence can be made,  but         that  should be for the limited purpose to         ascertain whether the  conclusion  arrived         at  by  the  fact  finding court is wholly         unreasonable." Coming back to the impugned order it is pertinent to notice  that  the Rent Control Court, while dealing with the first ground i.e.  default in payment of rent from 1.11.1986 to 30.4.1986 has pointed out the averments of the  landlords in their petition that rent of the building was Rs.250/- per month  till  30.10.19^5 and thereafter the rent was enhanced to Rs.650/- per month from 1.11.1985 onwards  and  that  the tenant committed default in paying rent at the enhanced rate from 1.11.1986.    Petition  for  eviction  was filed by the landlords on 4.5.1988.  Appellant repudiated the case of the landlord regarding such enhancement.  According to  him  the rent  remained  Rs.250/-  per  month  and he paid it without default till March 19.  1988, and when he tendered rent  for the  next  month  (April)  the landlord refused to accept as they wanted the tenant to vacate the building.  He was  then compelled  to  issue  a notice to the landlords on 30.4.1988 complaining of such refusal.  It was while replying  to  the said notice that the landlords have mentioned, for the first time, that rent of the building was Rs.650/- and that it was not paid from 1.11.1986 onwards. Rent Control Court has considered  the  evidence  on record regarding  that  dispute in detail.  The reasoning of the Rent Controller that if there was enhancement of monthly rent to  Rs.650/from  1-11-1985  the  landlords  would  have mentioned that  fact in the Ext.  R-73 reply which they sent to the appellant on 6-5-1988.  The absence of such a fact in the said reply notice when taken along with  the  fact  that landlord  amended the original petition claiming rent at the enhanced rate only after a lapse of one year from  the  date of  institution  thereof persuaded the Rent Control Court to conclude that it was an afterthought.  The court also relied on Ext.  R-74 to R-82 (assessment orders and the tax returns under the Income Tax Act, 1961 for the period starting  from 1985-86)  supported by the certified copies of statements of income and expenditure account  in  which  monthly  rent  of Rs.250/was mentioned for the relevant period.  The appellate authority has  also  adverted  to  the above materials.  The counterfoils (P-1 to P-5) produced by the landlords did  not give  a  good  impression  as to its genuineness on both the authorities.  The appellate authority felt  that  they  were concocted for the purpose of evicting the tenants. For  interfering with the findings made on the above reasoning learned Single Judge  has.    unfortunately,  used only one sentence which is the following:         "If we compare  the  evidence  adduced  in         this  case  and wading of the same by both

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       the courts below, it can be  said  without         hesitation  that  the courts below are not         justified   in   ignoring   the   evidence         available  which  warrants  this  court to         hold that the tenant was a  defaulter  and         he had caused nuisance." Learned  Single Judge has committed a jurisdictional error in upsetting the concurrent finding in such  a  manner as it has been done.  Of course in that sweep learned Single Judge covered the nuisance aspect also. It  is  clause (iv) of section 10(2) of the Act that makes nuisance as a ground for eviction.  It is worded  like this: "That  the  tenant  has been guilty of such acts and conduct which are a  nuisance  to  the  occupiers  of  other portions   in   the   same   binding  or  buildings  in  The neighbourhood." Though the word "nuisance" is not defined it can  be inferred  from the context that what is meant therein is the actionable  nuisance  which  is   recognized   Common   Law. Nuisance  as  understood  in law is broadly divided into two classes  public nuisance and private nuisance.  The  former consists of some acts or omissions which result in violation of  rights  which one enjoys in common with other members of the public.  But the fatter i.e.  private nuisance,  is  one which  interfere  with  a  person’s  use  and  enjoyment  of immovable property or some right in respect of it. In Halsbury’s Laws of England (vol.34 of the  fourth edition at page 102)essentials of common law of nuisance arc mentioned as under         "309:   Both  unlawful  act   and   damage         necessary.    In   order   to   constitute         nuisance  there  must  be  both   (1)   an         unlawful  act,  and  (2) damage, actual or         presumed.  Damage  alone  gives  no  right         action,  the  mere fact that an act causes         loss to another does not make that  act  a         nuisance.         For  the  purposes  of the law of         nuisance   an   unlawful   act   is    the         interference  by  act  or  omission with a         person’s use or enjoyment of land or  some         right over or in connection with land." Suffering of damage must be  proved  in  a  case  of nuisance unless it can be presumed by law to exist.  But the damage  to amount to actionable nuisance must be substantial or at-least of some significance.  In other words.   If  the damage  is  insignificant  or evanescent or trivial it would not be actionable nuisance.  The following passage  in  para 312  of  the  same  volume  in Halsbury’s Laws of England is worth extracting in this context:         "312.  Damage essential.  Damage,  actual,         prospective  or  presumed,  is  one of the         essentials of  nuisance.    Its  existence         must  be  proved, except in those cases in         which it is presumed by law to exist.         The  damage  need not consist of pecuniary         loss,  but  it   must   be   material   or         substantial,  that  is,  it  must  not  be         merely   sentimental,    speculative    or         trifling,   or   damage   that  is  merely         temporary, fleeting or evanescent." It is clear from clause (iv) of Section 10(2) of the Act that what is envisaged therein is only private  nuisance and not  public  nuisance.    This can be discerned from the

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words "nuisance to the occupiers of other  portions  in  the same building or buildings in the neighborhood" Perhaps in a wide  sense  any  industrial  activity may create some sound while such activities are in operation.  Such sound  may  be uncomfortable to those who are over sensitive to such noise. But  then  care  must  be  taken because every inconvenience cannot become actionable nuisance.  To  make  it  actionable the  nuisance  must be of a reasonably perceptible degree as pointed out earlier. Rent  Control  Court  considered   landlords’   case regarding  nuisance  Landlords  said  that  the  tenant  was quarreling with them "whenever they  go  for  collection  of rents."  They  have  also alleged that appellant was running machines late in the night and thereby causing  nuisance  to the other  occupiers  of the building.  As the appellant was running high business with the same machines right from  the beginning, Rent Control Court was not inclined to treat such noise as amounting to nuisance.  Appellate authority pointed out  that  there was no complaint prior to the filing of the eviction petition at any time against  the  tenant  that  he caused  damage to the building." On the other hand, the Rent Control Court noticed that machinery was installed  in  this building  way  back  in 1970 and the same is under operation even now.  On  the  above  reasoning  both  the  authorities uniformly concluded that tenant has not committed any act of nuisance to  attract  the  ground of eviction.  But the High Court upset such a finding in a very casual manner unmindful of the inherent limitations of the revislonal jurisdiction. The  third ground for eviction is related to causing damage to the building.   For  damage  to  the  building  to amount  to  a ground for eviction, its proportion must be as delineated in clause (iii) of Section 10(2) of the Act:         "That the tenant has committed  such  acts         of   waste   as   are   likely  to  impair         materially the value  or  utility  of  the         building." All acts of waste do not  amount  to  a  ground  for eviction.   It  is only those acts of waste which would very probably impair the value of the building  or  its  utility. The  word "likely" in the above clause must be understood as a condition which is  reasonably  probable  that  such  acts would  cause  impairment  to  the  value  or  utility of the building.  However, it is not enough  that  some  impairment has been  caused to the building.  The value of the building or utility thereof should have been lessened in a reasonably substantial degree.  Then only it can be said that the  acts of  waste  are  likely to impair the value or utility of the building "materially".  In Om Pal vs.  Anand Swarup 1988 (4) SCC 545 the Court,  while  considering  a  similarly  worded clause in another Rent control enactment, has observed thus:         "In  order  to  attract Section 13(2)(iii)         the construction  must  not  only  be  one         affecting  or  diminishing  the  value  or         utility   of   the   building   but   such         impairment  must  be  of a material nature         i.e.  of  a  substantial  and  significant         nature.  When a construction is alleged to         materially  impair the value or utility of         a building, the construction should be  of         such a nature as to substantially diminish         the  value of the building either from the         commercial and monetary point of  view  or         from   the   utilitarian   aspect  of  the         building.  The burden  of  proof  of  such         material impairment is on the landlord."

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An  Advocate-Commissioner  visited  the building and pointed out the following features in his  report  regarding the damage noticed by him:  "There is only concrete flooring with uneven surface.  Due to the use of machinery there is a hole  in  the  flooring on the eastern side and it was meant for inserting pipe.  There was no damage  to  the  roof  and walls.  Some  nail-holes  were also noticed.  When the lathe machines were operated  the  advocate  commissioner  noticed that there was no vibration either on the ground floor or on the walls of the main building, though very slight vibration was noticed on the parapet walls of the first floor." Both the fact finding courts found  that  the  above items  of  damage  are  only trivial and will not affect the building.  But the High  Court  found  that  "the  landlords proved that the tenant caused damage to the demised premises by  causing holes and leaving spaces between the shutter and the wall as seen from the Commissioner’s report." It was not open to the High Court to substitute  the  findings  of  the lower  courts  with its own findings so easily as that while exercising the limited supervisory jurisdiction. For the aforementioned  reasons  we  are  unable  to sustain  the  impugned  judgment of the High Court which has manifestly crossed. its jurisdiction.   We, therefore, allow this appeal and set aside the impugned judgment.