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CASE NO.: Appeal (civil)  758 of 2007

PETITIONER: Shantilal Kesharmal Gandhi

RESPONDENT: Prabhakar Balkrishna Mahanubhav

DATE OF JUDGMENT: 14/02/2007

BENCH: A.K. MATHUR & P.K. BALASUBRAMANYAN

JUDGMENT: J U D G M E N T  (Arising out of SLP(C) No. 19367 of 2005)

P.K. BALASUBRAMANYAN, J.

                1.              Leave granted. 2.              Heard learned counsel on both sides.

3.              The tenant of a building governed by the  Bombay Rent, Hotel & Lodging House Rates Control Act,  1947 (hereinafter referred to as, "the Act") is the appellant  before us.  The landlord of the building, the respondent,  filed a suit for eviction of the tenant under Section  13(1)(a), (c) and (k) of the Act.  The landlord pleaded that  he had let out the suit premises to the tenant for the  purpose of residence and the tenant has used the  premises for a purpose different from the one for which it  was let by establishing a manufacturing unit therein and  has thus contravened Section 108(o) of the Transfer of  Property Act and thereby rendered himself liable to be  evicted under Section 13(1)(a) of the Act.   By installing the  machinery and by dumping of the products and the  blocking of an ’Ota’, the tenant had caused nuisance to  the plaintiff and the other occupiers of the same building  belonging to the plaintiff and had rendered himself liable  to be evicted under Section 13(1)(c) of the Act.   He had  also failed to use the premises for the purpose for which it  was let and since he is not using the premises for the  purpose for which it was let, for a continuous period of  more than six months immediately before the filing of the  suit, he was liable to be evicted under Section 13(1)(k) of  the Act.  The tenant denied the plea that the building was  let out to him solely for a residential purpose.  He pleaded  that it was let out to him for residential and commercial  purposes.  He denied the committing of nuisance and also  the claim that he had ceased to occupy the premises for a  period exceeding six months as contended by the landlord.  

4.              Evidence was let in by the parties.  The tenant  got marked the registers of the local authority claiming  that the building was shown in the books of the authority  as having been let out for residential and commercial  purposes.  He also examined a clerk in the Pune  Municipal Corporation and a Tax Inspector of the  Corporation.  The landlord in his evidence also stated that  taxes were levied on the suit premises by the Pune  Municipal Corporation on the basis of it being residential

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as well as commercial.  The tenant when examined  attempted to deny his signature on the reverse of the  counterfoil of a rent receipt produced by the landlord and  contended that it was not admissible to prove that the  premises was let out to him solely for a residential  purpose.  On the question of nuisance, the landlord let in  evidence to show that the tenant had blocked a passage  (Ota) used by all the tenants and by dumping his  products, was preventing user of the common area by the  others.  He also deposed that by installing machinery and  operating it, nuisance was being caused to the other  tenants and neighbours.  The trial court, on a  consideration of the pleadings and the evidence in the  case came to the conclusion that the premises in question  consisting of two rooms was let out to the tenant in the  year 1977 and there was nothing to show that until 1980- 81 any business was carried on by the tenant in the  premises.  That Court also took note of the fact that the  tenant was a school teacher and the rules of conduct  disabled him from carrying on any business when he  continued to be a teacher.  The counter foil of the rent  receipt was also relied on.  Taking the view that the  commercial use of the building was started only from the  year 1980-81 and accepting the evidence on the side of  the landlord that the original letting was only for the  purpose of residence, it came to the conclusion that there  was a change of user and the landlord was entitled to an  order of eviction in terms of Section 13(1)(a) of the Act read  with Section 108(o) of the Transfer of Property Act.   Proceeding further, the trial court also held that the  tenant had, by using the machinery, by blocking the ’Ota’  and by dumping his manufactured products in the  common open space, had caused nuisance to the other  occupants and hence he was also liable to be evicted  under Section 13(1)(c) of the Act.  Since the original letting  out was for a residential purpose and the tenant was  found to have ceased to reside in that premises and was  found to be using it only for a commercial purpose, the  trial court also held that a decree for eviction was liable to  be granted under Section 13(1)(k) of the Act on the basis  that the tenant had ceased to occupy the premises for a  period exceeding six months within the meaning of Section  13(1)(k) of the Act.  A claim made by the landlord on the  ground that the tenant had acquired another premises  reasonably sufficient for his requirement was negatived.  The suit was thus decreed and eviction was ordered on  three grounds.  

5.              The tenant went up in appeal.  The lower  appellate court on the basis of a cursory reasoning, and  without a proper reappraisal of the relevant materials on  record, affirmed the finding on change of user.  It held  that the ground of nuisance set up had rightly been  upheld by the trial court.   It also affirmed the finding of  the trial court on the ground of ceasing of occupation by  the tenant for the purpose for which the premises was let.   The High Court, when moved under Article 227 of the  Constitution of India, saw no ground to interfere with the  decision of the two courts below and dismissed the  petition.  Feeling aggrieved, the tenant has filed this  appeal.   

6.              Learned counsel for the tenant \026 appellant  submitted that there has been no proper consideration of  the claim of the landlord for eviction under Section

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13(1)(a) of the Act on the ground of change of user since it  was not established that the original letting of the  premises in question was only for the purpose of  residence.  Learned counsel submitted that the admission  of the landlord as PW-1 and the evidence of the clerk and  Inspector of the Municipal Corporation and the impact of  the registers got produced by him have not properly been  considered by the appellate court or by the High Court.    He submitted that the finding on the ground of nuisance  and ceasing to occupy, would depend upon the purpose  for which the building was let and those findings were  dependent on the basic question whether the building was  let out only for a residential purpose or for the combined  use as residence and for commerce.   The learned counsel  for the landlord, the respondent, met these contentions by  pointing out that there was no evidence on the side of the  tenant to rebut the evidence produced on behalf of the  landlord that the building was let out only for a residential  purpose.  Learned counsel also submitted that the  admissions of the tenant in his evidence and the  counterfoil of the rent receipt produced by the landlord  would clearly support the finding rendered by the courts  below in favour of the landlord.  He also submitted that  the registers of the local authority did not relate to the  year of letting and the year of letting was important in  determining the purpose of the lease.   He also submitted  that the finding of the ground of nuisance was well  supported by evidence and there was no reason to  interfere with it.  Same was the position on the finding of  the tenant ceasing to occupy the building for a period  exceeding six months.

7.              On going through the judgments of the trial  court, and the appellate court in the light of the  submissions made before us it may be possible to say that  there has been a failure on the part of the appellate court  to discuss all the relevant materials and to that extent its  conclusion is open to challenge.  The trial court had  considered the relevant aspects and had recorded its  conclusions.  The appellate court should have made a  proper reappraisal of the pleadings and the evidence in the  case before coming to an independent conclusion of either  affirming the findings of the trial court or of interfering  with them.  Some items of evidence brought to our notice  are not seen discussed by the first appellate court.  The  first appellate court being the final court of fact and law,  should have made a proper examination of the relevant  materials.   To that extent there may be a point in the  submission of learned counsel for the tenant.  But then,  we may have to reckon with the reasoning of the trial  court before we make up our mind on the question of  interference with the finding on that aspect.

8.              But, we find that even if we interfere with the  finding based on which a decree for eviction is granted  under Section 13(1)(a) of the Act and direct  reconsideration of that aspect by the appellate court, that  would be of no serious consequence.  Of course, the  decree for eviction under Section 13(1)(k) of the Act on the  ground of ceasing to occupy, may be affected by it.   But,  there is a decree for eviction on the ground of the conduct  of the tenant which has resulted in causing nuisance and  annoyance to the adjoining or neighbouring occupiers of  the main building of which the suit premises is a part, in  terms of Section 13(1)(c) of the Act and if that part of the

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decree does not suffer from any infirmity, there will be no  reason to interfere with the decree for eviction as a whole.

9.              Counsel for the tenant argued that the relevant  finding is based solely on the finding that the premises  was originally let out for a residential purpose.   We are  not in a position to agree.  It is true that that aspect was  also kept in mind by the court while entering the finding  on causing nuisance to neighbours and other occupiers.   But, the finding is based on the effect of installation and  working of machinery by the tenant, the blocking of an  ’Ota’ (passage) by putting up a tin sheet partition and the  dumping of articles in the passage and in the open space  in the premises.  These aspects are relevant and the effect  of these acts are relevant considerations while entering a  finding on nuisance under Section 13(1)(c) of the Act.    The argument on whether the photographs relied on by  the landlord to prove the dumping, were duly proved does  not impress us.  Similarly, the attempted explanation of  the tenant that the goods did not belong to him but to  relatives, has been rightly rejected by the trial court and  the appellate court.   Therefore, we see no reason to  interfere with the decree for eviction under Section 13(1)(c)  of the Act.   

10.             In that view, no useful purpose would be served  by directing the appellate court to reconsider the question  of eviction under Section 13(1)(a) of the Act, even if the  claim thereunder requires to be reconsidered (we do not  pronounce on it).  The decree for eviction under Section  13(1)(c) of the Act would survive.  In such a situation, we  see no reason to interfere with the decree for eviction as a  whole.

11.             Thus, we confirm the decision under appeal and  dismiss this appeal.  The tenant is given a time of nine  months from this date to vacate the premises on his filing  the usual undertaking before this Court with a period of  three weeks from today.   However, there will be no order  as to costs.