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Himachal Pradesh High Court · body

2000 DIGILAW 293 (HP)

RAM LUBHAYA v. MALTI NEGI

2000-11-10

C.K.THAKKER

body2000
JUDGMENT C.K. Thakker, C.J Oral: - This revision is preferred by the petitioner landlord being aggrieved and dissatisfied with the order passed by Rent Controller (4), Shimla, on June 30, 1993, in case No. 24/2 of 1987/85 and partly confirmed and partly set aside by Appellate Authority (1), Shimla, on March 21, 1996, in Appeal Nos.62-S/14 of 1993 and 72-S/14 of 1993. 2. The petitioner herein was the original landlord and the respondent was the original tenant before the Rent Controller. The petitioner filed an application being case No.24/2 of 1987/85 against the respondent in the court of the Rent Controller (4), Shimla, under Section 14 of the Himachal Pradesh Urben Rent Control Act, 1971 (hereinafter referred to as "the Act") for possession of suit premises on three grounds. Firstly, there was change of user by the tenant inasmuch as she used the rented premises for a purpose other than for which it was let out; secondly, the tenant had committed acts which have impaired materially the value or utility of the residential premises; and, thirdly, the tenant was guilty of causing private nuisance and the acts committed by her had materially affected health, comfort and convenience of the petitioner as well as neighbours residing in the building in question. 3. The case of the petitioner was that the suit premises were let to respondent for residential purpose. She had, however, converted the same into non-residential by commercialising a part there of. Before change of user she had not taken written consent of the landlord. One of the rooms was converted into a temple and she was receiving donations from devotees. Thus, she had used a part of the premises as a source of permanent income. It was also her case that she had committed acts which had materially impaired value or utility of the premises and damaged permanently water pipes, other fittings and fixtures which had endangered safety of the entire building. Moreover, the tenant was guilty of causing nuisance. Several devotees used to visit the temple daily and inspite of repeated requests by the petitioner, she had not stopped nuisance. She was creating sounds by chanting Bhajans and Kirtans and by using loud - speakers. On all these grounds, the petitioner prayed an order of eviction against the respondent. 4. Moreover, the tenant was guilty of causing nuisance. Several devotees used to visit the temple daily and inspite of repeated requests by the petitioner, she had not stopped nuisance. She was creating sounds by chanting Bhajans and Kirtans and by using loud - speakers. On all these grounds, the petitioner prayed an order of eviction against the respondent. 4. The application was resisted by the tenant by filing a reply and raising objections - preliminary as well as on merits. It was her case that the petitioner wanted her to vacate the premises. Neither she consented to vacate, nor she agreed to increase rent. Hence, with a view to harass her, several actions were taken by the petitioner. He stopped water supply and the tenant had to apply to the Municipal Corporation for an independent water connection which annoyed the landlord. It was also contended that there was no change of user as alleged by the petitioner nor the premises were used by coverting into temple as averred by the petitioner. She had also not caused any nuisance nor materially impaired the value or utility of the premises in question. Since there was no reason on the part of the petitioner to initiate proceedings, the application was liable to be dismissed. 5. On the basis of the averments made by the petitioner and controverted by the respondent, necessary issues were framed by the Rent Controller relating to change of user, nuisance and acts of waste. So far as change of user and impairment to the property are concerned, the Rent Controller held that in the light of the evidence led by both the parties, it cannot be said that the allegations levelled by the petitioner stood established and hence, no order of eviction could be made in favour of the petitioner on either of the two grounds. 6. Regarding nuisance, however, the Rent controller was of the view that the said ground was established by the landlord on the basis of evidence on record. According to him, it was proved by the petitioner that in the temple, made by the respondent in the disputed premises, several devotees used to come daily and the numbers increased during religious festivals. He also observed that Kirtans and Jagratas used to be performed by the tenant in the said temple. According to him, it was proved by the petitioner that in the temple, made by the respondent in the disputed premises, several devotees used to come daily and the numbers increased during religious festivals. He also observed that Kirtans and Jagratas used to be performed by the tenant in the said temple. It was proved from the evidence of the petitioner as well as his witnesses that as Bhajans were displayed on the loud speaker, it could be said that there was nuisance to the landlord and he was entitled to possession on that ground. He also observed that from testimony of witnesses of the petitioner, it was also established that some of the tenants had to vacate the premises occupied by them because of nuisance caused by the respondent. It was argued before the Rent controller that no notice was served upon the tenant by the landlord regarding nuisance caused by her or a complaint was filed with the sub Divisional Magistrate or Police. It was also contended that no devotees were examined by the petitioner, who had visited the temple to prove factum of causing of nuisance. The Rent Controller, however, observed that on the basis of evidence adduced by the parties, it was proved that Bhajans and Kirtans were being performed and loud speakers were being used in of the rooms of the suit premises. The Rent Controller, therefore,-held that "it is established that temple is there and it has made a public temple by the respondent. The user of loud speaker and the crowd of devotees definitely caused nuisance to the neighbourers and other tenants." 7. Being aggrieved by the order passed by the Rent Controller, two appeals were filed, one by the tenant against a finding recorded against her on Nuisance. Another appeal was filed by the landlord against findings on two issues, namely, change of user and impairment of the value of utility of the suit premises. The appellate authority allowed the appeal filed by the tenant holding that it was not proved that nuisance was caused to the landlord or to the neighbours and, hence, the finding recorded by the Rent Controller, was liable to be set aside. The appellate authority allowed the appeal filed by the tenant holding that it was not proved that nuisance was caused to the landlord or to the neighbours and, hence, the finding recorded by the Rent Controller, was liable to be set aside. The appellate authority .however, dismissed the appeal filed by the landlord and confirmed the finding recorded by the Rent Controller on issues of non-user as well as impairment of value or utility to the suit property. 8. Being aggrieved by the order passed by the Appellate Authority, only one revision application, being Civil Revision No.247 of 1997 was filed by the landlord on June 27, 1996. On September 1, 1997, the case was called out but nobody was present and it was dismissed in default. CMP No. 440 of 1997 was filed for restoration and recalling the order. On October 28, 1997, the earlier order was recalled. On November 28, 1997, the petition was admitted. It is called out for final hearing today. 9. I have heard Mr. O.P. Sharma, learned counsel for the petitioner and Mr. R.K. Bawa, learned counsel for the respondent. 10. It .may be stated at this stage that an application. (CMP No.340 of 2000) is filed by the petitioner-landlord in the present revision under Order 41, Rule 27 of the Code of Civil Procedure, 1908 permitting the petitioner to lead additional evidence, which is a deposition of the respondent-tenant recorded in HMA case No.40-S/3 of 1979 titled Ashok Kumar v. Saroj Kuntari on May 8, 1980. It was stated in the application that the petitioner could not produce the statement either in the trial court or before the appellate court, as it was not within his knowledge at the relevant time. According to him, the statement is relevant and necessary for the just decision in the matter. 11. The application is objected by the learned counsel for the respondent-tenant, inter alia, on the ground that the provisions of Order 41, Rule 27 of the Code would apply only to the appellate court and not to a revisional court. It was also submitted that except bald assertions by the landlord, there is nothing on record as to how he was not aware of the said statement and when he came to know about the deposition. Mr. Bawa, learned counsel, therefore, submitted that the application deserves to be rejected. 12. Mr. It was also submitted that except bald assertions by the landlord, there is nothing on record as to how he was not aware of the said statement and when he came to know about the deposition. Mr. Bawa, learned counsel, therefore, submitted that the application deserves to be rejected. 12. Mr. Bawa also raised another preliminary objection that the Rent Controller decided two issues against the petitioner-landlord. Aggrieved by the said order, the petitioner preferred an appeal, which also came to be dismissed. On nuisance, the order passed by the Rent Controller was challenged by the respondent-tenant and her appeal was allowed. It was, therefore, obligatory on the part of the petitioner- landlord, to prefer two revision applications if he wanted to challenge the findings recorded in favour of the respondent-tenant on all the three points. Since only one revision application is filed, it is not open to the petitioner-landlord to challenge the findings recorded by the Rent Controller and confirmed by the appellate authority in favour of the tenant. 13. I have considered the rival submissions of the parties. In my opinion, the revision petition must succeed in part. Apart from the preliminary objection raised by Mr. Bawa, learned counsel for the tenant that the petitioner ought to have preferred two revision applications (which appears to be well founded,) even on merits, it cannot be said that the orders passed by the Rent Controller and confirmed by the appellate authority on two issues, namely,(i) change of user and (ii) impairment to the suit property deserve interference. The finding recorded by both the authorities are findings of fact based on evidence. Ordinarily, concurrent findings of fact are not open to interference in exercise of revisional jurisdiction of this court under sub section (5) of Section 24 of the Ac! Unless such finding is based on no evidence, is otherwise uncalled for or Perverse. In my opinion, in the facts and circumstances, it cannot be said that no such finding could have been recorded by the authorities below and hence to that extent, the order passed by the Rent Controller and confirmed by the Appellate Authority needs no interference. 14. Regarding nuisance, however, the grievance voiced by the learned counsel for the petitioner-landlord is well founded. 14. Regarding nuisance, however, the grievance voiced by the learned counsel for the petitioner-landlord is well founded. The Rent Controller on the basis of evidence led by the parties held that one of the rooms of the suit premises was used as temple by the respondent-tenant. Bhajans and Kirtans were being played and loud speaker was used, devotees were visiting that room and it had resulted in nuisance to the landlord as veil as the neighbours. It was also observed that from the evidence of PW1 Kama Sharma, PW3 Ashok Kumar and PW5 A.K. Verma, it was proved that at least one of the reasons for vacating the premises was nuisance caused by the tenant. When an appeal was filed by the tenant against the finding recorded by the Rent Controller, the Appellate Authority considered the evidence and reversed the finding recorded by the Rent Controller. 15. In paragraph 11 of the order impugned in the present revision, the Appellate Authority observed that the tenant was in possession since 1978. The amount of rent of the demised premises was found inadequate by the petitioner-landlord. He wanted to increase the rent. Under the Act, however, he could not be allowed to arbitrarily increase the rent. Since the tenant refused to vacate the demised premises, the petitioner had coined cock and bull story of nuisance. 16. In my opinion, the learned counsel for the petitioner is right in contending that the above observations have been made by the Appellate Authority without there being any material on record. A suggestion was put to the landlord in the cross-examination that he wanted to increase the rent, which was denied by him. Moreover, the tenant herself was examined as RW1 but neither in her examination-in-chief nor in cross-examination, there was a whisper regarding increase of rent. Hence, the observations by the Appellate Authority that the petitioner wanted to increase the rent and since he was not successful and the tenant refused to vacate the premises cock and bull story was coined, are without any basis. 17. Similarly, the appellate authority stated that "admittedly", the respondent-tenant had to seek separate water connection as supply of water in the demised premises had been interfered by the landlord. It is, no doubt, true that it was the case of the tenant that water supply was disturbed by the landlord. But the landlord had denied the said suggestion. 17. Similarly, the appellate authority stated that "admittedly", the respondent-tenant had to seek separate water connection as supply of water in the demised premises had been interfered by the landlord. It is, no doubt, true that it was the case of the tenant that water supply was disturbed by the landlord. But the landlord had denied the said suggestion. Nowhere the landlord either in his examination-in- chief or in cross-examination admitted that he had interfered supply of water to the demised premises. It, therefore, cannot be said that it was admitted by him that there was interference of water supply to the tenant. 18. It was also observed by the appellate authority that PW1 Kamal Sharma, PW-3 Ashok Kumar and PW-5 V.K. Sharma left the premises of the petitioner. It further observed that "the possibility of PWs 1,3 and 5 having left the premises of the petitioner because of some consideration paid to them could not at all be ruled out." With respect to the Appellate Authority, there is no material whatsoever to draw such inference. All the three witnesses were cross-examined by the counsel of the tenant. No such suggestion, however, was made to that effect. It was, therefore, not open to the Appellate Authority to observe that there was possibility of PWs 1,3 and 5 having left the premises because of some consideration paid to them. The above observation, in my opinion, has been based on conjectures or surmises and, hence, cannot be approved. 19. It was also stated by the Appellate Authority that PW-5 shifted his residence elsewhere as he got "better accommodation." There is nothing on record as to on what ground the said statement was made by the appellate authority. In cross-examination, no such question was put to the witness that the accommodation to which he had shifted was better than the one occupied by him in the premises of the petitioner. 20. The Appellate authority further observed that if there was nuisance by the respondent-tenant, it could have been proved by examining other tenants since several tenants were there as also by calling devotees as witnesses who, it was alleged, used to visit the temple. The said view also cannot be upheld. It was open the Appellate Authority either to believe the evidence of witnesses who were examined or not to believe them by recording proper and valid reasons. The said view also cannot be upheld. It was open the Appellate Authority either to believe the evidence of witnesses who were examined or not to believe them by recording proper and valid reasons. But the evidence of witnesses could not have been discarded only on the ground that other tenants or devotees were not examined. 21. One of the grounds which weighed with the Appellate Authority was that no complaint was made to the Sub Divisional Magistrate by the landlord. I am unable to appreciate the above reasoning of the Authority. If the case of the petitioner -landlord was that nuisance was caused to him or to other occupiers, it was open to him to invoke the provisions of Section 14 of the Act praying for eviction of the tenant. And it was incumbent on the authority to consider the same and pass an appropriate order There was, therefore, no necessity of making complaint to the Sub Divisional Magistrate. Non-filing of such complaint either to the Sub Divisional Magistrate or to someone else, therefore, cannot affect the case of the petitioner if his case is otherwise covered by Section 14 of the Act. 22. It was strenuously contended by Mr. Bawa that with a view to harass the respondent-tenant, proceedings were initiated. For that he placed reliance on the fact that out of three witnesses examined by the petitioner, PW-1 and PW-5 left the rented premises in 1981 whereas PW- 3 vacated in 1982. The petition for eviction was instituted only on November 26, 1985. Had there been nuisance or noise as alleged by the petitioner, he would not have waited for such a long time for institution of proceedings against the tenant. He also submitted that even though the appellate authority decided the appeals in March, 1996, only one revision petition was filed in March, 1996. For sufficient long time, it was not moved by the landlord. So much so that the revision was dismissed for default in September, 1997 and an affective order of admission was passed in November, 1997. Thus, an order of admission was made by this court after about one and a half year. It was, therefore, submitted that even the petitioner was not various because it was not a case of nuisance. 23. Thus, an order of admission was made by this court after about one and a half year. It was, therefore, submitted that even the petitioner was not various because it was not a case of nuisance. 23. He also submitted that once a finding is recorded by the Rent Controller and confirmed by the Appellate Authority that there was no change of user and one of the rooms of the demised premises was not remarked as a temple, the finding recorded by the Rent Controller that there was nuisance as the rooms was used as temple was not in accordance with law and the appellate authority has rightly set aside the said finding. According to the counsel, both the findings are inter-dependent and must go together, viz. there was no change of user and the room was not used as a temple. He, therefore, submitted that even if no proper reasoning has been given by the Appellate Authority for setting aside the order passed by the Rent Controller on the point of nuisance, this court may not interfere with the said order since the final conclusion arrived at by the Appellate Authority is in consonance with law. 24. He also submitted that except a bald statement that other tenants had vacated because of nuisance caused by the respondent-tenant, no material has been placed on record nor evidence was led to substantiate the allegation and hence the finding recorded by the appellate authority deserves to be confirmed. 25. In my opinion, when several findings have been recorded by the Appellate Authority without there any material or evidence on record and which have certainly a bearing on the final conclusion to be recorded by it, it would be in the interest of justice if the order passed by the Appellate Authority is set aside by directing it to pass an appropriate order after considering the evidence on record and considering relevant materials and by ignoring irrelevant or nonexistent facts and circumstances. 26. Since I am setting aside the order passed by the Appellate Authority and remanding the matter for fresh disposal in accordance with law, I do not wish to pass any order nor to express any opinion on application of the petitioner for leading additional evidence. It is open to the petitioner-landlord to make such application if he so advised, before the Appellate Authority. It is open to the petitioner-landlord to make such application if he so advised, before the Appellate Authority. It is also open to the respondent-tenant to raise all objections against such application. As and when the matter will come up for hearing, it be decided by the Appellate Authority on its own merits. 27. So far as the finding regarding change of user and impairment of the value or utility of the suit property is concerned, the findings recorded by the Rent Controller and confirmed by the Appellate Authority are not disturbed. 28. For the foregoing reasons, the revision petition is partly allowed. The findings recorded by the Appellate Authority on the ground of nuisance are set aside and the case is remanded to the Appellate Authority for fresh disposal in accordance with law. CMPNo.340of2000: 29. In view of the disposal of the revision petition, this application is also disposed of.