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Madras High Court · body

2001 DIGILAW 1381 (MAD)

K. Natarajan v. C. Murugesan

2001-11-21

PRABHA SRIDEVAN

body2001
ORDER: The tenant is the revision petitioner. 2. Notice of motion was ordered on 3.5.2001 and on 6.11.2001, the matter was argued by both the counsel. 3. The petition property originally belongs to one Samundeeswariammal. The petitioner was a tenant under her. The respondent was bequeathed this property by Samundeeswariammal, his aunt under a will dated 16.9.1985. After the death of the testatrix, on 24.11.1988, the respondent filed O.P. No.377 of 1989 and this Court granted probate of the will. Therefore, he became the landlord of the petition premises and the petitioner continued to be the tenant. The aforesaid facts are not in dispute. 4. The respondent filed R.C.O.P. No.1392 of 1990 for eviction under Secs.10(2)(1), 10(2)(ii)(b), 10(2)(iii) and 10(2)(v) of the Tamil Nadu Buildings (Lease and Rent Control) Act, hereinafter referred to as “the Act”. The case of the respondent is that the petitioner was paying the rents by cheque from July, 1989 to January, 1990. Thereafter, he committed default for the period February, 1990 to May, 1990 and hence he is liable to be evicted on the ground of wilful default. The tenancy was a non-residential one and the original landlady gave the petitioner, the premises on lease only to carry on the business of selling stainless vessels. About four months prior to the filing of the petition, the petitioner had converted the user of the property and is having an aluminium furnace to melt aluminum and make them into ingots. No consent was obtained for change of user of the property. Therefore, the tenant was liable to be evicted on the ground of change of user. The smoke emanating from the aluminium furnace caused nuisance to the neighbours and other tenants and for this reason also, the petitioner is liable to be evicted. The aluminium furnace had been installed and the manufacture of ingots is being done without obtaining licence from the authorities and therefore, the petitioner’s activity is illegal and for this reason also, he is liable to be evicted. On these allegations, the respondent filed the above R.C.O.P. 5. The petitioner on the other hand, in his counter, challenged the maintainability of the eviction petition. He denied there was any default. According to the petitioner, the respondent had received the rent for the month of May, 1989 only on 29.11.1989 and for June, 1989 only on 8.1.1990 and therefore, he had accepted such payments. The petitioner on the other hand, in his counter, challenged the maintainability of the eviction petition. He denied there was any default. According to the petitioner, the respondent had received the rent for the month of May, 1989 only on 29.11.1989 and for June, 1989 only on 8.1.1990 and therefore, he had accepted such payments. All of a sudden, he had issued notice calling upon the petitioner to pay the rent from July, 1989 to January, 1990. Immediately, this was paid by pay-order. The respondent refused to receive the rent payable for the month of February, 1990 and when the petitioner called upon the respondent to furnish the name of the Bank and the account number, along with the rent for the month of February and March, 1990, the cover was returned with endorsement “No such person”. Therefore, the petition itself lacks bona fides. The respondent also filed O.S. No.3916 of 1990 for a permanent injunction restraining the carrying on of aluminium manufacture. I.A. No.8082 of 1990 for interim injunction was dismissed and the C.M.A. was also dismissed. The business of aluminium manufacture is being carried on for the last 15 years. The petitioner was neither carrying on any illegal activity, nor did he commit acts of waste. The petition for eviction had been filed only to harass the tenant and is therefore liable to be dismissed. 6. The learned Rent Controller found that there was no wilful default, there was no change of user, there was no act of waste, but ordered eviction on the ground of nuisance. The respondent had examined himself and an employee of the Corporation Health Department as witnesses and filed about 36 exhibits. The petitioner had examined himself, a neighbour and an Engineer to prove that there was no nuisance and no act of waste and had also marked 8 exhibits. In any event, the tenant aggrieved by the order of eviction on the sole ground of nuisance, filed R.C.A. No.1012 of 1994. Pending appeal, the respondent filed M.P. Nos.233 of 2000 and 620 of 1999. The former was a petition under Sec.11(4) of the Act and the latter was for reception of additional documents. The additional documents were the evidence of P.W.1 in O.S. No.3916 of 1990 as also the evidence of the revision petitioner, the judgment debtor. Pending appeal, the respondent filed M.P. Nos.233 of 2000 and 620 of 1999. The former was a petition under Sec.11(4) of the Act and the latter was for reception of additional documents. The additional documents were the evidence of P.W.1 in O.S. No.3916 of 1990 as also the evidence of the revision petitioner, the judgment debtor. The Rent Control Appellate Authority allowed the two miscellaneous petitions and ordered eviction on three grounds namely, change of user, nuisance and act of waste, while confirming the order of the Rent Controller regarding wilful default. Against this, the resent revision has been filed. 7. Mr.V.Raghavachari, learned counsel for the petitioner submitted that the C.M.P. for receipt of additional evidence ought not have been ordered straight-away. The Court ought to have been satisfied that the provisions of O.41, Rule 27, C.P.C. applied to the given situation. When no reason was given as to why these documents were not produced before the Rent Controller, the Appellate Authority erred in allowing the application. He also pointed out that the judgment in O.S. No.3916 of 1990 is not conclusive of the existence of either nuisance, act of waste or change of user in view of the provisions of the Indian Evidence Act. According to the learned counsel, when the case of the petitioner was that, right from the beginning, the tenant had been permitted to carry on the business of aluminium manufacture, the question of change of user does not arise. As regards nuisance, he would submit that nuisance can only be proved by examining the occupants in the premises since that is what the Section envisages and when the respondent has not chosen to examine any of the occupants, nuisance cannot be held to be proved. He also relied on several decisions to show what acts amount to nuisance. According to the learned counsel appearing for the revision petitioner, the authorities below had erred in placing reliance on the Commissioner’s report which was marked in the Civil Suit and arriving at the conclusion that there was act of waste when R.W.3 who is himself an Engineer had clearly deposed that there was no act of waste. The learned counsel also pointed out to the conduct of the respondent who had refused to accept the rents paid to him by sending it to the address at 294, Anna Salai, which was returned as “No such person”. The learned counsel also pointed out to the conduct of the respondent who had refused to accept the rents paid to him by sending it to the address at 294, Anna Salai, which was returned as “No such person”. That was the very address from which the respondent had sent the notices and it was the address given in the petition as his address for service. It was clear from all these that the respondent was bent on getting rid of the tenant by fair means or foul. Learned counsel also pointed out that Sec.10(2)(v) entitles a landlord to obtain orders of eviction on the ground of nuisance only if it is proved that the acts and conduct of the tenant were nuisance to the occupiers of other portions in the same building or buildings in the neighbourhood. In the present case, the respondent had examined only himself and an officer of the Corporation Health Department. Therefore, the nuisance that has to be proved under the Act had not been established. He also submitted that there was absolutely no evidence to show that the petitioner had committed or caused to commit acts of waste which were likely to impair the value or utility of the building. He further submitted that injustice had been caused by the Appellate Authority failing to consider that the petitioner had examined three witnesses on his side. As a matter of record, it was shown that the Appellate Authority had referred to the witnesses thus: According to the learned counsel, this was sufficient to set aside the order of the Appellate Authority. He also pointed out to paragraph 8 where there are several dots after the words and this also would demonstrate that the Appellate Authority had intended to say something further and the judgment was incomplete. This was another circumstance that warranted setting aside of the order of eviction. The learned counsel relied on the following decisions: (1) Pandian, K.S. v. G.Rukmani Bai, (2001)1 C.T.C. 356 ; (2) Mahavir Singh v. Naresh Chandra, (2001)1 S.C.C. 309 ; (3) Rafat Ali v. Sugni Bai, (1999)1 S.C.C. 133 ; (4) Venugopal v. Ravichandran, (2001)2 M.L.J. 771 ; (5) Saroja, R. v. N.Lokanataha Kanthan, (2000)1 L.W. 356 . 8. The learned counsel relied on the following decisions: (1) Pandian, K.S. v. G.Rukmani Bai, (2001)1 C.T.C. 356 ; (2) Mahavir Singh v. Naresh Chandra, (2001)1 S.C.C. 309 ; (3) Rafat Ali v. Sugni Bai, (1999)1 S.C.C. 133 ; (4) Venugopal v. Ravichandran, (2001)2 M.L.J. 771 ; (5) Saroja, R. v. N.Lokanataha Kanthan, (2000)1 L.W. 356 . 8. Mr.T.V.Krishnamachari, learned counsel for the respondent on the other hand would submit that the Appellate Authority’s order cannot be set aside since it does not suffer from any illegality except insofar as the ground of wilful default had been rejected. He submitted that though the respondent had not filed any revision against the rejection on the ground of wilful default, it is open to the respondent to urge in this revision, that ground is also available for the landlord. He submitted that even assuming that the covers enclosing rent had been returned with the endorsement “No such person” the petitioner had remedy under the Act by invoking Sec.8. Therefore, the refusal of the landlord to receive rent cannot absolve the tenant of the liability to pay rent. In the instant case, it was admitted that the petitioner had never paid rent promptly whereas the Act calls upon the tenant to pay or tender the rent within 15 days after the expiry of the time fixed in the agreement of tenancy or by the last day of the month next following the one for which it is paid. Therefore, it was clear that the tenant had committed wilful default in payment of rent. As regards change of user, the learned counsel would submit that when the landlord claims that there is a change of user, the tenant should prove that there was an agreement which allowed him to use the premises for the purpose of which it was actually used. In the absence of any contract with the respondent or his aunt, the original landlady, the petitioner cannot claim that he was permitted to conduct the business of aluminium manufacture in the premises. The learned counsel pointed out that the area where the petition premises is situate is predominantly a residential area. Therefore, only such business can be permitted in this area which will not cause injury or affect the neighbours or residents in the locality. The learned counsel pointed out that the area where the petition premises is situate is predominantly a residential area. Therefore, only such business can be permitted in this area which will not cause injury or affect the neighbours or residents in the locality. No permission was granted by the landlord to the petitioner to do aluminium manufacture, and what was worse, this business was being carried on without obtaining due licence from the authorities. The learned counsel submitted that the case that the petitioner was carrying on his business for the past 15 years was patently false. The petitioner has changed the nature of business about four months prior to the petition and immediately, there were complaints and the respondent had also intimated to the Corporation that this activity is being carried on without a licence and the authorities also took steps to seal the premises. Therefore, on the ground of nuisance too, he was liable to be evicted. As regards waste, the learned counsel pointed out to the Advocate Commissioner’s Report which was filed in the suit O.S. No.3619 of 1990 which was marked as Ex.P-11. He pointed out to Ex.P-11 which would show that the open space was temporarily covered by A.C. sheets and that the floor was in a damaged condition and also that along with the report, the petitioner’s brother’s statement had also been filed. This was correctly taken note of by the rent control authorities. As regards nuisance, the learned counsel submitted that there was no need for the respondent to examine any other tenant since it is his case that he is unable to live in the first floor of the petitioner premises because of the illegal business of the petitioner causing nuisance and health hazard to the respondent. He also pointed out that the very fact that the petitioner was carrying on the business of aluminium manufacture without obtaining licence only goes to show that the activity is illegal. The learned counsel also submitted that there was no objection to the marking of Ex.P-11 and it is not open to the counsel for the petitioner to object to it now. The learned counsel also submitted that there was no objection to the marking of Ex.P-11 and it is not open to the counsel for the petitioner to object to it now. As regards act of waste, learned counsel submitted that the premises was not intended to be used for aluminium manufacture and it is undeniable that the petitioner had altered it to fix the furnace for making ingots which had materially impaired the value and utility of the building and therefore, acts of waste had also been proved. As regards the reception of additional evidence, he submitted that the documents that were marked pending the appeal, were the evidence of the respondent and the petitioner in the civil suit and also the judgment and decree. Since these were obtained only subsequently, there was no error in the order receiving these exhibits which related to proceedings between the same parties on almost the same issues. He relied on the following decisions: (1) Majestic Leather Ware v. Govind Chetty, (1999)3 M.L.J. 398 : (2000)1 L.W. 474 ; (2) Balambal v. Devasenathipathi, (1998)1 M.L.J. 177 : (1988)1 L.W. 398 ; (3) S.N.Vairavelu v. P.Sundaram, (2001)2 M.L.J. 796; (4) M/s.Velmurugan Engineers v. A.Kaliappan, (1998)2 M.L.J. 472 : (1998)2 L.W. 666 ; (5) Vijayakumar v. Ravindran, (1997)3 C.T.C. 476 ; (6) Poorman’s Depot Registration Firm vs. Krishnan, (1997)2 M.L.J. 467 : (1997)2 C.T.C. 467; (7) Sainabai Ammal v. Krishnamurthy, (2000)1 L.W. 445 ; (8) Natarajan, C. v. Anandammal, (1989)1 L.W. 29 ; (9) K.Venkataramani v. S.Aravamuthan, (1981)1 M.L.J. 516 . 9.Wilful default: In K.Venkataramani v. S.Aravamuthan, (1981)1 M.L.J. 516 , it was held that while there is no doubt that the revisional jurisdiction is invoked by a person aggrieved by the order of the Appellate Authority, the scope of the exercise of revisional power is not merely restricted to the particular ground on which the decision is rested, but extends to the correctness, legality or propriety of any decision or order and would include the power to examine the correctness or otherwise of a finding adverse to the respondents. In that case, the question of bona fide requirement was held against the landlord who however obtained the order of eviction on the ground of wilful default. In that case, the question of bona fide requirement was held against the landlord who however obtained the order of eviction on the ground of wilful default. It was held in that decision that in the revision filed by the tenants, it was open to the landlords to canvass the correctness of the finding even on the question of bona fide requirement and claim that the order of eviction should be granted on that ground also. (ii) Following this decision, the question of wilful default will also be examined. The rent controller rejected the plea of wilful default on the ground that when the rent sent by the petitioner under Ex.R-1 etc. was returned with endorsement “No such person”, the default cannot be wilful. According to the rent controller, the petitioner had done all that was within his power to pay the rent and resorting to Sec.8(5) was only optional and not mandatory. The Appellate Authority confirmed the finding of the Rent Controller merely on the basis that the landlord had not filed an appeal. (iii) In Majestic Leather Ware v. Govind Chetty, (1999)3 M.L.J. 398 : (2000)1 L.W. 474 , this Court has held that the liability to pay rent is an obligation on the part of the tenant and if the landlord refused to receive rents, there are remedies proved under the Act enabling the tenant to send a registered notice and thereafter to initiate proceedings under Sec.8(5) of the Act. In that case also, the tenant did not do so. On the other hand, he was in the habit of paying the rents in lump sum. The learned Judge held that default was wilful. (iv) In M/s.Velmurugan Engineers v. A.Kaliappan, (1998)2 M.L.J. 472 : (1998)2 L.W. 666 , the tenant gave a notice to the landlord who refused to receive the rent and asked him to name a Bank and followed it by filing a petition under Sec.8(5). This petition was returned by the Rent Controller and the tenant did not pursue the remedy further and thereafter, the tenant did not pay the rent even though the landlord issued notice. This Court held that the default was wilful. (v) In Vijayakumar v. Ravindran, (1997)3 C.T.C. 476 , the default in payment of rent even after adjustment of alleged deposit of advance was held to be wilful default. This Court held that the default was wilful. (v) In Vijayakumar v. Ravindran, (1997)3 C.T.C. 476 , the default in payment of rent even after adjustment of alleged deposit of advance was held to be wilful default. (vi) In Saroja, R. v. N.Lokanataha Kanthan, (2000)1 L.W. 356 , non-payment of rent until petition under Sec.11(4) was ordered was held to be wilful default. (vii) In Poorman’s Depot Registration Firm vs. Krishnan, (1997)2 M.L.J. 467 : (1997)2 C.T.C. 467, the irregularity in payment of rent was held to be wilful default. The learned Judge noted that the tenant did not establish by taking necessary steps even assuming that the landlord refused to receive the rent. (viii) There are several decisions in which it has been held that mere default in payment of rent is not wilful default. Supine indifference and callousness in payment of rent will make the default, wilful default. According to the petitioner herein, though there is a default, it was not wilful, but for the bona fide reasons spelt out above. Even in Ex.P-4, which is the reply notice, the tenant admits the delay in payment, but attributes it to severe loss in his business. The reply notice issued by the counsel for the petitioner runs thus: “The delay in payment of rent was due to severe loss in my client’s business which fact was well known to your client. Having full knowledge of my client’s loss, your client was very patiently cooperative with my client. My client also assured your client that he will settle the entire rental dues before the end of February which was also accepted by your client.” It is clear from this notice that the tenant had been in default of payment of rent. The fact that his business was running at a loss does not make the situation better. In the reply Ex.P-8, the respondent’s counsel denied that the default was due to business loss or that the respondent was acquiescing in the delay in payment of rent. In Ex.P-8, which is dated 23.2.1990, the respondent has brought to the notice of the petitioner that there is change of user for which no consent has been given by the landlord. This was received by the petitioner as seen by the acknowledgment card Ex.P-9. In Ex.P-8, which is dated 23.2.1990, the respondent has brought to the notice of the petitioner that there is change of user for which no consent has been given by the landlord. This was received by the petitioner as seen by the acknowledgment card Ex.P-9. Ex.R-5, dated 23.4.1990 is the notice sent by the petitioner to the respondent in which it is alleged that when the rent for February, 1990 was sent to the respondent by money order, it was refused and that the respondent asked him to vacate the premises and therefore, the rent for the months of February and March, 1990 were sent by pay order along with Ex.R-5. There is no whisper in this notice regarding the use of the premises for manufacturing aluminium for over 15 years. Even assuming that the case of the petitioner is true and the respondent agreed to receive the rents belatedly for the month of May, 1989, June, 1989 etc., the petitioner ought to have known atleast after the above notices were issued that the respondent will not insist on prompt payment of rent. In Pandian, K.S. v. G.Rukmani Bai, (2001)1 C.T.C. 356 , this Court has held that when once the tenant is in default, and the landlord terminates the tenancy or chooses to file the eviction petition, there is no provision in the Act which would enable the tenant to pay the arrears either before filing of the petition or immediately after receiving the notice from the rent controller so as to raise a presumption that there is no wilful default. In this case, much was made of the fact of the refusal of the landlord to receive the rent at the Anna Salai address. The learned counsel for the petitioner would submit that even though the respondent was residing in the same address, he wilfully refused to receive the rent, but the Act takes care of a situation where the landlord deliberately refused to receive the rent and that is whey Sec.8(5) has been introduced. It is clear in this case that the tenant had not chosen to avail of the protection given by the Act to prove that there is no default. Therefore, he is liable to be evicted on the ground of wilful default. It is clear in this case that the tenant had not chosen to avail of the protection given by the Act to prove that there is no default. Therefore, he is liable to be evicted on the ground of wilful default. 10.Change of user: The learned counsel objected to the reception of the judgment and decree in O.S. No.3916 of 1990 on the ground that it is not in accordance with the provisions of the Indian Evidence Act. No doubt, the Indian Evidence Act states that judgment in prior proceedings between the same parties is not conclusive proof of the facts alleged. They are relevant. In the plaint filed by the respondent herein, he sought for injunction on the ground that the petitioner should not and his case was that their business was being carried on only in the four months prior to the filing of the suit. The suit was decreed. Therefore, this may be a relevant factor in considering whether there is a change of user. It is the case of the petitioner that he had been carrying on this business for 15 years. But, as we have observed already, to the notice dated 23.2.1990 Ex.P-8, where it was alleged that only recently the building was being used for a different purpose other than for which it was let, and that a big pit had been dug up for melting old aluminium vessels and for producing aluminium ingots, there was denial. To this complaint given by the respondent, the Commissioner Corporation had issued orders for closure of trade. The Appellate Authority’s finding is that it is not in dispute that the tenancy agreement between the parties is only oral. It is the case of petitioner that he was given permission to do aluminium business by the original landlady and that he does not have any record for it now. Nowhere in the evidence has the petitioner been able to show that he obtained consent from Samundeeswariammal to do aluminium casting business. It is no doubt true that the Court placed reliance on the evidence of the petitioner and the respondent in the civil suit, but the Appellate Authority also considers the evidence on the side of the respondent which shows his futile attempts to restrain the petitioner from continuing the aluminium factory. It is no doubt true that the Court placed reliance on the evidence of the petitioner and the respondent in the civil suit, but the Appellate Authority also considers the evidence on the side of the respondent which shows his futile attempts to restrain the petitioner from continuing the aluminium factory. They are Ex.P-14 addressed by the respondent to the police authorities referring to the acts of waste and the business being conducted without licence and without his consent, his complaint Ex.P-15 to the H-1 police station. Ex.P-16 his petitioner dated 10.7.1990 to the Inspector of Police, Law and Order, Ex.P-17 the receipt of the complaint, Ex.P-18 the registered letter to the Commissioner, Corporation of Madras dated 14.7.1990 with copy marked to the Divisional Fire Officer and Inspector of police law and Order. Ex.P-19 letter written by the Fire department to the Commissioner, Corporation of Chennai requesting the Corporation to take steps to restrain its business in the interest of public and the letter Ex.P-20 to the Divisional Fire Officer dated 11.7.1990 addressed by the respondent to the Inspector of Police Law and Order. This letter is very important. With regard to the case registered against the petitioner, it appears that the Sub-Inspector had made enquiries and the petitioner had stated that he had in his possession, the written agreement consenting to the business of casting aluminium. He had also stated in that letter that till date, the petitioner had not produced this agreement. Ex.P-25 is again a letter written by the respondent to the Commissioner, Corporation of Madras seeking their help for closing the "trade under Sec.379 of the MCMC Act. Thereupon, the premises also appears to have been sealed. Ex.P-36 is a letter written by the petitioner wherein he has stated that he has stopped the aluminum business because the permission of the corporation was not obtained. But even in this letter there is no reference to the consent that is alleged to have been obtained by the petitioner for carrying on the business in the premises. Ex.P-36 is a letter written by the petitioner wherein he has stated that he has stopped the aluminum business because the permission of the corporation was not obtained. But even in this letter there is no reference to the consent that is alleged to have been obtained by the petitioner for carrying on the business in the premises. The petitioner’s stand that there is an agreement which is referred to in the letter addressed by the respondent to the Commissioner Corporation referred to above is found in Ex.P-35 addressed by the petitioner to the police authorities wherein he has stated: If this were true, the petitioner would have produced the Government and demonstrated to the Court beyond doubt that he had the landlord’s consent for carrying on the business and there was no change of user, but as commented by the Appellate Authority, inspite of the frantic efforts made by the respondent to contract all the statutory departments, the petitioner turned a deaf ear and therefore, the Appellate Authority held that these allegations made by the respondent stand proved. This is what the applicable authority says: Therefore, the grounds urged by the learned counsel for the petitioner that the Appellate Authority had found that change of user was proved merely on the basis of the evidence recorded in the civil suit may not be correct. The Appellate Authority had enough materials before it to come to this conclusion and it is also evident that the Appellate Authority had taken into account all the exhibits referred to above for arriving at this conclusion. There is no reason to interfere with the same. 11.Acts of waste: The Appellate Authority held that in the present case, the issues of change of user, acts of waste and nuisance are all inter-connected with each other and that therefore, the rent controller who found that nuisance was proved had erred in his appreciation of evidence with regard to acts of waste and change of user. Both the counsel placed before the Court, several authorities regarding what is Act of waste. (ii) Venugopal v. Ravichandran, (2001)2 M.L.J. 771 was a case where the tenant removed mangalor tiles and fixed zinc sheets with the knowledge and consent of owner. Both the counsel placed before the Court, several authorities regarding what is Act of waste. (ii) Venugopal v. Ravichandran, (2001)2 M.L.J. 771 was a case where the tenant removed mangalor tiles and fixed zinc sheets with the knowledge and consent of owner. This Court rejected the allegation that the tenant had committed act of waste in changing the roof without acceptable evidence, that the removal of mangalore tiles and fixing zinc sheets in a portion of premises had impaired materiality the value and utility of the building. (iii) In Rafat Ali v. Sugni Bai, (1999)1 S.C.C. 133 , the Supreme Court held that concurrent finding of fact regarding default in payment of rent and that his acts of waste and conduct amount to nuisance should not be interfered with. In the said judgment, it was held that on such acts of waste which would be in a reasonably substantial degree impair the value of the building will amount to acts of waste. In that case also, the supreme Court found on facts that until the petitioner was filed, there was no reference to acts of waste. In that case, an Advocate Commissioner had been appointed and both the fact finding Courts found that the items of damage were in the trivial and will not affect the building. (iv) In S.N.Vairavelu v. P.Sundaram, (2001)2 M.L.J. 796, the tenant had removed the lower part of a door and erected a platform. This was held to be an act of waste. In the present case, the landlord had filed, a petition on 5th June, 1990. On 23.2.1990 by Ex.P-8 he had complained to the petitioner that the petitioner had dug up a pit and put upon oven for smelting aluminium and had broken and removed a major portion of the asbestos roofing. These acts are not denied. An Advocate Commissioner was appointed in the civil suit as well as the R.C.O.P. The petitioner’s counsel’s complaint is that the lower Court erred in accepting the evidence of the Advocate Commissioner’s report filed in the civil suit when examining that Advocate Commissioner as a witness and therefore, was contrary to Sec.33 of the Indian Evidence Act. An Advocate Commissioner was appointed in the civil suit as well as the R.C.O.P. The petitioner’s counsel’s complaint is that the lower Court erred in accepting the evidence of the Advocate Commissioner’s report filed in the civil suit when examining that Advocate Commissioner as a witness and therefore, was contrary to Sec.33 of the Indian Evidence Act. According to the Engineer’s report marked as Ex.R-7 through R.W.3 Engineer, the compressor that was used in the building would not have any impact or bearing on the walls and that the petition premises has no blackening and therefore there was no act of waste. But the main grievance of the respondent is that the petitioner has broken open and Court out two furnaces one on the southern side and one on the eastern side to let out the smoke. The presence of smoke is seen from Ex.P-26 which is marked through P.W.2, the Corporation Officer, where there is reference to the heavy smoke caused by the petitioner’s unauthorised business. The following sentences are relevant: "The party was already prosecuted and convicted two times, but the party is still running the trade without licence after repeated prosecution. This comes under primary residential zone where this trade is not permissible. During melting aluminium scraps, there is heavy smoke and thereby it causes smoke nuisance to the nearby residents. The trade is to be closed and sealed to prevent running the trade." This order is signed by the Zonal Officer, the Health Officer, the Commissioner, Corporation and other authorities. Therefore, in what is a primarily residential area, the petitioner had done such acts as would facilitate his aluminium casting business. There is no dispute that the tenancy is only non-residential. The purpose was for selling stainless steel vessels which would not cause any damage to the building, but the evidence let in by the respondent supports his case. It is true that there may not be any cracks but when the premises has been changed to facilitate the unauthorised user, there can be no doubt that these acts will definitely impair the value and utility of the building. Hence, the finding of the Appellate Authority is confirmed. 12.Nuisance: As regards nuisance, what is a public nuisance and what is a private nuisance was dealt with in Rafat Ali v. Sugni Bai, (1999)1 S.C.C. 133 . Hence, the finding of the Appellate Authority is confirmed. 12.Nuisance: As regards nuisance, what is a public nuisance and what is a private nuisance was dealt with in Rafat Ali v. Sugni Bai, (1999)1 S.C.C. 133 . The learned counsel for the petitioner would submit that the tenant can be evicted only if he is guilty of acts which constitute nuisance to the occupiers of other portions in the same building. References was made to the language of Sec.10(2)(4) of the Act. Learned counsel submitted that while the petitioner had examined R.W.2 who is a neighbour to support his case that no nuisance was proved, the respondent has not chosen to examine any neighbour. Therefore, the respondent cannot be said to have proved acts of nuisance. The following extracts from the above judgment were quoted: "In Halsbury’s Laws of England (Vol.34 of the 4th Edn. at p.102) the essentials of the common law of nuisance are mentioned as under: "309. Both unlawful act and damage necessary: In order to constitute a nuisance there must be both (1) an unlawful act, and (2) damage, actual or presumed. Damage alone gives no right of 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 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: age, 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 following passage in para 312 of the same volume in Halsbury’s Laws of England is worth extracting in this context; 312. Damage essential: age, 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 Sec.10(2) of the Act that what is envisaged therein is only private nuisance and not public nuisance. This can be discerned from the words "nuisance to the occupiers of other portions in the same building or buildings in the neighbourhood". Perhaps in a wide sense any industrial activity may create some sound while activities are in operation. Such sound may be uncomfortable to those who are oversensitive 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." (ii) In Balambal v. Devasenathipathi, (1998)1 M.L.J. 177 : (1988)1 L.W. 398 , this Court held that though initially it was felt that the landlord cannot object to the running of flour mill, constant hammering in the premises would amount to acts of nuisance. Eviction was ordered on this ground even though the landlord had let out the premises only [Italics supplied] for the purpose of running flour mill. In this case, it has been held that the premises was not let out for manufacturing aluminium ingots. The communication Ex.P-26 of the authorities referred to above shows nuisance and it is the respondent’s case that he occupies the first floor and therefore he suffers consequences of the heavy smoke. The petitioner has not challenged the case of the respondent that he also occupies the first floor of the petition premises. When questioned, the learned counsel for the respondent submitted that though the respondent had given 294, Anna Salai as his address, he has specifically pleaded in the petition himself that he is in occupation of the first floor of the petition premises. When questioned, the learned counsel for the respondent submitted that though the respondent had given 294, Anna Salai as his address, he has specifically pleaded in the petition himself that he is in occupation of the first floor of the petition premises. This is in fact found to be correct, as seen from para 11 of the petition: "Petitioner is unable to live in the first floor because of the illegal business of the respondent which is causing nuisance and health hazard to the petitioner." This has not been controverted. Therefore, the fact that it affects the occupants of other portions in the same building has also been proved and the decision in Rafat Ali v. Sugni Bai, (1999)1 S.C.C. 133 is also applicable to this case since the respondent has made out that the act complained is an unlawful act and it constitutes damage and the documentary evidence which are the letters of the authorities, the Commissioner, Corporation, the Fire Department all point out to the fact that the petitioner is carrying on an act which is not permitted and without sanction of the authorities. It causes damage to the occupants namely the respondent herein and therefore, the concurrent findings regarding nuisance also stands confirmed. 13. For the above reasons, the tenant is liable to be evicted on all the four grounds and the C.R.P. is dismissed with costs of Rs.1,000. C.M.P. No.8024 of 2001 is closed.