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2001 DIGILAW 236 (KAR)

CELINE MARY v. ALICE NAIDU

2001-03-12

R.GURURAJAN

body2001
GURURAJAN, J. ( 1 ) THESE Revision Petitions are filed by Mrs. Celine Mary, the landlady (Petitioner in HRRP No. 1704/94) and Mrs. Alice Naidu, the tenant-petitioner (in HRRP No. 11/95) challenging the order dated 5. 8. 94 passed by the Rent Control Judge in HRC No. 10494/90. ( 2 ) I would be referring to the parties as per their rankings be fore the Trial Court. ( 3 ) THE landlady Celine Mary filed a petition seeking for eviction under Section 21 (1) (d) and (h) of the KRC Act (Act for short ). The trial Judge allowed the petition in so for as eviction under Section 21 (1) (d) is concerned and dismissed the petition in so for as Section 21 (1) (h) is concened. The finding on Section 21 (1) (h) is challenged by the landlady in HRRP No. 1704/94 and the finding relating to section 21 (1) (d) is challenged by the tenant on the following facts. ( 4 ) THE landlady filed a petition under Section 21 (1) (d) and (h) of the Act in HRC No. 10494/90. It is stated in the petition that the respondent is a tenant residing in the first floor portion of the building bearing no. 101, 7th cross, Williams Town Extension, Bangalore, on a monthly rental of Rs. 100/ -. The said premises was allotted to the tenant by Rent and Accommodation Controller, Bangalore, on 30. 9. 80. Husband of the tenant deserted her as he got frustrated with her attrocities and her immoral way of living. After the husband of the tenant left her she continued to live in the schedule premises with her son aged 15 years. She is employed in Airforce, HAL, bangalore. She has been creating nuisance to heighbouring fenants in the locality and also to the tenant residing at ground floor portion. Aggrieved by her nuisance complaint have been lodged, at the jurisdictional police station by the landlady and the other neighboring tenants of the locality. A joint complaint has also been forwarded to the police Commissioner for action. Copies of these complaints are filed with the petition. With these grounds eviction was sought under section 21 (1) (d) of the Act. ( 5 ) THE landlady also sought for eviction under Section 2 (1) (h) of the Act by contending that she requires premises for her bonafide use and occupation. Copies of these complaints are filed with the petition. With these grounds eviction was sought under section 21 (1) (d) of the Act. ( 5 ) THE landlady also sought for eviction under Section 2 (1) (h) of the Act by contending that she requires premises for her bonafide use and occupation. Her family consists of herself her husband Sri lourduswamy and four children viz. , Noel Narina, Paul Raj, Rufina sophia, and Maray Kala. Her first daughter is married to Jon Edward in 1987 and he is working in Indian Overeas Bank, Thiruvanamal branch, Tamilnadu. This daughter has given birth to a child aged 9 months now, and daughter is employed in AG's office, Bangalore. The family of the daughter is presently accommodated in 3/6,. Mosque road cross, Bangalore 5, the son of the landlady aged 29 years is a air conditioning Engineer, and yet not married since their is paucity of accommodation. Landlady's second daughter is aged 22 years, and is of a marriageable age. Last daughter of the petitioner is studying in Dayanand Sagar college, in Electronic Engineering II year and she has no proper place for study. The present accommodation is highly insufficient for them and therefore sought for eviction of the premises by the tenant. The said claim of the landlady was contested by the tenant. Tenant alleged that the petition is filed with a sinister motives and to seek vengence against her at the instance of a tenant residing at ground floor one Mr. Robin chandra Kumar. Sri Robin Chandra Kumar is not in good terms with her. He has quarrelled with her with regard to sharing of water in the premises. According to her she would be put to greater hardship if eviction is ordered. ( 6 ) WITH these pleadings parties went for a trial before the Court. On be half of the petitioner 4 witnesses have been examined in addition to filing of 24 documents. Tenant examined one witness and filed no documents. The trial Judge framed as many as 5 issues for consideration. He answered the first 2 issues in affirmative. 3rd point is answered in negative. First point is with regard to relationship between parties. The Said point has been answered in favour of the landlord. The same is not challenged before me. Tenant examined one witness and filed no documents. The trial Judge framed as many as 5 issues for consideration. He answered the first 2 issues in affirmative. 3rd point is answered in negative. First point is with regard to relationship between parties. The Said point has been answered in favour of the landlord. The same is not challenged before me. Second point is with regard to eviction under Section 21 (1) (d) (nuisance committed by the tenant ). The ground for eviction under Section 21 (1) (h) of the act is rejected by the trial Judge. ( 7 ) MR. P. B. Appaiah, learned Counsel for the petitioner-land lady attacked the finding with regard to eviction under Section 21 (1} (h) of the Act. He invited my attention to the pleadings and the details of the schedule premises and contended that on the facts of this case it cannot be said that the petitioner/landlady is not right in seeking eviction of the tenant from the premises. In so far as nuisance issue is concerned he contended that the learned Judge is right in ordering eviction in the light of the pleadings, documents and the complaints. ( 8 ) PER contra Sri HB Datar, learned Senior Counsel argued that no case is made out for eviction under Section 21 (1) (h) of the Act. According to him providing accommodation to a married daughter cannot be termed as a ground for eviction under Section 21{1) (h) of the Act. He also referred to the findings of the trial Judge on this ground. In so far as nuisance is concerned he argued that nothing has been mentioned in the petition in detail and therefore the said pleas is not available to landlady. ( 9 ) ALTER hearing the Counsels I have perused the impugned order. Petitioner-landlady admittedly has sought for eviction on the ground of nuisance in terms of Section 21 (1) (d) of the Act. In the petition it is stated the tenant is a nuisance to the residents in the locality and also to the neighboring owners. Complaints have been filed with regard to the conduct of the tenant on account of her act of nuisance. Joint complaint also is given in this regard as I see from the pleadings. In the petition it is stated the tenant is a nuisance to the residents in the locality and also to the neighboring owners. Complaints have been filed with regard to the conduct of the tenant on account of her act of nuisance. Joint complaint also is given in this regard as I see from the pleadings. In response to the said pleadings the tenant nowhere in the objection statement says anything with regard to the allegation of nuisance. Only averment is that of vengence against her at the instance of a neighbouring tenant. There is not even a denial with regard to the nuisance committed by her. The complaints, are also not disputed. Petitioner landlady in her evidence has referred to the nuisance in her examination in chief. She has also referred to the various complaints given in this regard. She states that the tenant plays music in the night, spits on the tenants in the ground floor, she throws urine in the passage; she throws wast food in the passage where the tenant in the ground floor passes. Complaint is also lodged in this regard. Her evidence is supported by the neighbouring tenant Robin Chandra Kumar. He has stated that the tenant is throwing waste material and dust into his premises when people are passing through his premises. She eats betel nuts and spits in to his premises. She passes urine In the hole in the floor which comes to his premises. She pours water in to the hole so that it comes to his premises. She dances in the night creating sound in the floor, he also referred to various complaints. ln cross examination he has denied having given a false complaint, Complaints have also been marked. As against this piece of evidence respondent-tenant has examined herself. In para 22 she admits in unmistakable term that she has been a nuisance to them and they have given police complaints she however admits that she gives nuisance to Robin chandra Kumar and that he has given complaint against her. Her only defence is the nuisance is on account of water problem. ( 10 ) THE trial Judge after taking into consideration these evidences on record has ruled in para 26 that the allegations of nuisance are supported by the evidence of PW3. Her only defence is the nuisance is on account of water problem. ( 10 ) THE trial Judge after taking into consideration these evidences on record has ruled in para 26 that the allegations of nuisance are supported by the evidence of PW3. In the light of her own admission the trial Judge ruled that the respondent tenant has committed and act of nuisance causing inconvenience to other tenant. This finding is supported by material on record. After appreciation of material on record he has come to this conclusion. This finding cannot be said to be capricious or arbitrary requiring my interference. The only contention of Mr. Datar, learned Senior Counsel however is that the pleadings are vague. No doubt the landlady has not averred in detail in the petition with regard to nuisance but has mentioned in the complaint. However, the tenant nowhere in her objection statement denies nuisance. Even before the trial Court she admits nuisance. In the light of these pleadings, evidence and admission it cannot be said that the tenant was unaware of an allegation made against her. Therefore, the case cannot be thrown out on the ground of want of pleadings only as urged by the Counsel. When the tenant knows the allegations made against her and accepts the same, it cannot be said that the petition is to be thrown out for want of pleadings. This contention is therefore rejected. Section 21 (1){d) of the Act reads as under:"21 (1) (D); that the tenant or any person residing with the tenant has been guilty of conduct which is a nuisance or annoyance to the adjoining Or neighbouring occupiers, or has been convicted of using the premises or allowing the premises to be" used for immoral or illegal purposes" ( 11 ) NUISANCE is always a matter of fact, it is those who suffer would understand the difficulties and hardship faced by them. Spitting, urinating, and watering etc. by a tenant from the first floor certainly is an act of. . nuisance. It would certainly cause annoyance, embarrassment and difficulty to the others/the various acts referred to her in the evidence and the complaints would certainly lead to the only conclusion of nuisance in terms of the act. The expression nuisance and annoyance have nowhere been defined in the Act. . nuisance. It would certainly cause annoyance, embarrassment and difficulty to the others/the various acts referred to her in the evidence and the complaints would certainly lead to the only conclusion of nuisance in terms of the act. The expression nuisance and annoyance have nowhere been defined in the Act. According to shorter Oxford dictionary 'nuisance means anything injurious or abnoxious to the community or to the individual as a member of it, for which some legal remedy may be found. Literally, it means anything that causes annoyance or that works hurt or injury, harm or prejudice to an individual or the public or anything wrongfully done or permitted which injures or annoys another in the legitimate enjoyment of his legal rights. It may be an interference in the enjoyment of the property or an interference with one's personal comfort. To put it in short, anything done which unwarrantly affects the rights of the others, endangers life or health, gives offence to the senses, violates the laws of decency or obstructs the comfortable and reasonable use of property may amount to nuisance. ( 12 ) THE Punjab High Court in the case of NAIDER MAL vs UGARSA IN JAIN has ruled that no precise rule can be laid down as to the degree of inconvenience or discomfort that would be nuisance. But to constitute nuisance the injury cause must be real and not fanciful or imaginary. It must not be such as results only in trifling inconvenience. ( 13 ) THIS Court in the case of JOSEPH D' SOUZA vs STATE OF MY SORE and another has ruled as under:"the burden of proving that the tenant is guilty of conduct which is a nuisance or annoyance, is always on the landlord. It cannot be decided by any abstract consideration of the thing itself. The Judge must consider the evidence before htm and in particular, the circumstances of time, place and character of annoyance or nuisance, and its impact on the reasonable enjoyment of the adjoining or neighbouring occupiers. " ( 14 ) AGAIN this Court in the case of GOPAL VAMAN vs KRISHNA JITATYA RAO has ruled:"anything done which unwarrantably affects the rights of others, endangers life, or health, gives to the senses, violates the laws of decency or obstructs the comfortable and reasonable use of property may amount to nuisance. " ( 14 ) AGAIN this Court in the case of GOPAL VAMAN vs KRISHNA JITATYA RAO has ruled:"anything done which unwarrantably affects the rights of others, endangers life, or health, gives to the senses, violates the laws of decency or obstructs the comfortable and reasonable use of property may amount to nuisance. Annoyance also more or less means the same thing as nuisance. What is nuisance or annoyance is a question of fact depending on the facts and circumstances of each case. " ( 15 ) IN the case on hand the act committed by the tenant as rightly held by the Trial Court violates the laws of decency or obstructs the comfortable and reasonable use of property. No exception can be taken. In the circumstances the learned trial judge is right in ordering eviction of the premises. If such nuisance acts are not prohibited by courts of law the right under Section 21 (1) (d) of the Act would be frustrated. ( 16 ) THE learned Judge however in the order has rejected the ground of eviction under Section 21 (1) (h) of the Act. ( 17 ) PETITIONER admittedly has sought for eviction on the ground of insufficient accommodation. Evidence has been led with regard to her requirement. According to her she needs the premises on account of her daughter and son in law going away for work and she wants to take care of her grand child. The first daughter is admittedly married and working in AG's office and her husband is in hosur working in a Bank. The landlady is admittedly residing at at 3/6, Mosque road cross, Bangalore-5. The present premises in which she is living is highly insufficient and if present premises for which eviction is sought is available to her it would be great relief to her. The learned Judge after noticing the evidence on record and in the light of the judgments, has rejected the pleas of the landlady. ( 18 ) THIS Court in the case of Jayadevamma and Spl. Deputy commissioner, Bangalore, in Writ Appeal No. 626/81 dated 26. 8. 82 ruled that in the absence of any material to show that the married daughter is dependent upon the landlady, the married daughter, her husband and their children cannot be considered to be dependents of the landlady. ( 18 ) THIS Court in the case of Jayadevamma and Spl. Deputy commissioner, Bangalore, in Writ Appeal No. 626/81 dated 26. 8. 82 ruled that in the absence of any material to show that the married daughter is dependent upon the landlady, the married daughter, her husband and their children cannot be considered to be dependents of the landlady. ( 19 ) THIS Court in the case of K. S. APREMEYA IYENGAR vs h. S. RAMASWAMY" has ruled that under Section 21 (1) (h) of the act, a landlord could, in an appropriate case, seek an order for eviction, even if the premises are not required by him personally, but are required for the members of his family or of those who are economically dependent on him. ( 20 ) THIS Court in the case of GOPAL vs KUPPUSWAMY has held that:"the scope of Section 21 (1) (h) of the Act is sufficiently wide to take within its field persons economically dependent on the landlord alongwith those who are within the enumeration of the members of the family. A daughter is one of the members of the family- There is no reason why the daughter should be understood in a narrow sense, to mean only an unmarried or widowed daughter or a daughter who is always dependent on her parents. Hence, a landlord can apply to evict the tenant to provide accommodation for the married daughter". ( 21 ) IN the light of these judgments it is clear to me that in the absence of any special circumstances and in the absence of any dependency of the daughter on parents the need of the landlady cannot be said to be a reasonable need. Moreover there is also another premises available in the very same building and the landlady has not chosen to evict that tenant, and only she has sought for eviction of this premises admittedly which is away from the present place for the use of her daughter. In the circumstances material evidence is lacking with regard to both reasonable and bonafide requirement of the landlady. It cannot be said that the trial judge has committed any error requiring my interference. Moreover in view of my allowing the petition under Section 21 (1) (d) of the Act lanodlady gets eviction order of the premises occupied by the tenant. In the circumstances material evidence is lacking with regard to both reasonable and bonafide requirement of the landlady. It cannot be said that the trial judge has committed any error requiring my interference. Moreover in view of my allowing the petition under Section 21 (1) (d) of the Act lanodlady gets eviction order of the premises occupied by the tenant. ( 22 ) HAVING accepted the case of eviction of the tenant I must also find out as to whether the tenant is to be evicted immediately or to be granted some time for eviction. The petition was filed in the year 1990, and eviction order was passed in during 1994, six years have elapsed. Tenant still continues to be in possession. The landlord has suffered 10 long years of nuisance, and she can no longer suffer any further nuisance on the facts of this case. ( 23 ) IN the circumstances taking into consideration the difficulties of getting an alternative accommodation in the City of Bangalore, I deem it proper to grant time till 31. 5:2002 to the tenant to vacate and handover possession. However, the said grant of time is subject to the tenant filing an undertaking by way of an affidavit agreeing to pay the rentals regularly without default; not to create any nuisance either to the petitioner or to the neighbours; not to create a charge or subtenancy and finally agreeing to vacate and handover the possession on 31. 5. 2002 without insisting on any execution of this order, if any such undertaking is filed with the above conditions within four weeks from today, the tenant would get an extension of time to vacate till the said date 31. 5. 2002. If no undertaking is filed then tenant is directed to vacate and handover possession on 31,5. 2001 itself. ( 24 ) IN the result both the petitions stand dismissed but without any order as to costs. --- *** --- .