Research › Search › Judgment

Rajasthan High Court · body

2018 DIGILAW 319 (RAJ)

Krishna v. Liyakat Ali

2018-01-23

ALOK SHARMA

body2018
JUDGMENT Alok Sharma, J —Under challenge is the judgment and decree dated 4-5-2006 passed by the Additional District Judge No.4 Jaipur City, Jaipur allowing the regular first appeal filed by the respondent-defendanttenant (hereinafter 'tenant') under Section 96 CPC against the judgment and decree dated 3-12-2004 passed by the Additional Civil Judge (Junior Division) West, Jaipur City, Jaipur and dismissing the appellant-plaintiff-landlord's (hereinafter 'landlord') suit. 2. The second appeal was admitted on 18-10-2006 on the following substantial questions of law:- 1. Whether "nuisance" as defined under Section 13(1) (d) of the Rajasthan premises (control of Rent and Eviction) Act should be continuous nuisance to incur the liability of eviction? 2. Whether the findings of the courts below with regard to the reasonable and bona-fide necessity are perverse? Heard Mr. MM Ranjan for the landlord and Mr. R.K. Agarwal for the tenant. 3. Mr. M.M. Ranjan in the course of arguments submitted that another substantial question of law also arises in this second appeal which is as to whether the findings of the First Appellate Court reversing that of the trial court on the issue of material alteration as defined under Section 13(1) (d) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter 'the Act of 1950') are perverse. 4. The tenanted premises were let out by the landlord to the tenant on 1-3-1976 for the commercial purpose of running a steel fabrication shop. A suit for eviction came to be filed in 1995 on the grounds of bonafide and reasonable necessity of the landlord, nuisance allegedly created by him, material alteration of the tenanted premises at his instance, as also on the ground of the tenanted premises being in a dilapidated condition unfit for human habitation. 5. On the pleadings of parties and competing evidence on record laid at the instance of landlord and the tenant respectively, the trial court decreed the suit on the ground of nuisance created by the tenant as also for reason of material alteration of the tenanted premises by him and on finding that the tenanted premises were in dilapidated condition unfit for human habitation. Other grounds agitated in support of the suit were held by the trial court to have not been made out. 6. Other grounds agitated in support of the suit were held by the trial court to have not been made out. 6. In an appeal at the instance of the tenant filed under Section 96 CPC against the judgment and decree dated 3-12-2004 passed by the trial court, the findings of the trial court both on nuisance created by the tenant and material alteration of the tenanted premises by him and the tenanted premises being unfit for human habitation have been set aside. The Landlord's cross appeal against the judgment and decree dated 3-12-2004 to the extent of rejecting the eviction suit on the ground of bonafide and reasonable necessity was dismissed. 7. The landlord is therefore obviously aggrieved. Hence this second appeal. 8. Mr. M. M. Ranjan, the landlord's counsel, submitted that Section 13(1) (d) of the Act of 1950 does not require that nuisance created by the tenant should be continuous and persistent for an order of eviction of the tenant being passed on that ground. It was submitted that the trial court finding the tenant's unthinking littering of metal pieces on the way to the landlord's premises in the course of steel fabrication, and placing steel rods, the raw material for the fabrication, on the way also obstructing such free access including to the private temple of the landlord visited by worshipers, had rightly directed the tenant's eviction. It was submitted that excessive noise from the fabrication of steel doors and windows all through night and day established by the evidence on record was also rightly found to tantamount to nuisance affecting the lives of the landlord, and those in the neighbourhood. The finding of nuisance by the trial court has been wrongly set aside by the first appellate court reading into Section 13(1) (d) of the Act of 1950 the requirement of the nuisance being persistent and consistent. 9. Mr.M.M. Ranjan further submitted that the courts below also failed to appreciate that the landlord's bonafide and reasonable requirement for tenanted premises was made out, that conclusion on this score against the appellant landlord are perverse, and hence on this count too this second appeal deserves to be allowed. 9. Mr.M.M. Ranjan further submitted that the courts below also failed to appreciate that the landlord's bonafide and reasonable requirement for tenanted premises was made out, that conclusion on this score against the appellant landlord are perverse, and hence on this count too this second appeal deserves to be allowed. He submitted that the two substantial questions of law as framed in this second appeal be decided in the landlord's favour, the judgment of the first appellate court be set aside, as of the trial court on the issue of the landlord's bonafide and reasonable necessity and the suit for eviction be decreed, Mr. M.M. Ranjan submitted. 10. Per contra, Mr. R.K.Agrawal appearing for the tenant submitted that this court in the case of Kalyan Sahai Vs. Narangi Bial, 1987 2 RajLR 499 has construed Section 13(1) (d) of the Act of 1950 has held that for making out a case of nuisance by the tenant warranting his eviction, several test must invariably be satisfied. 11. They are that (a) nuisance alleged must be of gross character, (b) it must be of an unusual character, (c) it must be frequent and persistent, (d) it must be one which ordinarily is not expected from a reasonable prudent man (of house hold) , and (e) it must be one which creates hinderance or it is not possible for the neighbours to lead normal life peacefully for reason thereof. Mr. R.K. Agrawal, submitted that it is an admitted fact that the tenanted premises were let out for the commercial purpose of fabrication of steel witndows and doors, and thus there was a reasonable expectation if not an implied agreement that noise resulting from the business activity would follow. Noise from steel fabrication as an incident of business permitted was not an unexpected event which could in the first place at all tantamount to nuisance. Mr. R.K. Agarwal then submitted that there was no evidence on record that litering of pieces of steel in the course of fabrication of steel doors and windows and downloading of steel bars, the raw material for the permitted business was gross, not in the normal course of business. Further there was no evidence that it was regular and persistent. Mr. R.K. Agarwal then submitted that there was no evidence on record that litering of pieces of steel in the course of fabrication of steel doors and windows and downloading of steel bars, the raw material for the permitted business was gross, not in the normal course of business. Further there was no evidence that it was regular and persistent. In fact except for the generality of allegations in the plaint and mechanical reiteration thereof by the landlord's witnesses, there was no specific evidence to show the extent or frequency of the alleged litering by the tenant or the obstruction caused thereby nor of the tenant's refusal on being required, to remove the alleged offending pieces of metal/ rods. Mr. R.K. Agrawal submitted that nuisance under 13(1) (d) of the Act of 1950 having been construed by an earlier judgment of this court as obtaining only when it is continuous and persistent, and pleadings and evidence on this count lacking no substantial question of law as framed was warranted. But having yet been framed, it has to be answered against the landlord. And it be so done in this appeal, he submitted. 12. I am of the considered view that Section 13(1) (d) of the Act of 1950 having been construed by this court in the case of Kalyan Sahay to entail proof of persistency and frequency of the alleged nuisance, the first appellate court has not committed any illegality or for that matter any perversity in setting aside the judgment of the trial court on that count as neither frequency nor persistence was pleaded and/ or proved. The holding by the first appellate court that no case of nuisance as a ground of the tenant's eviction was made out cannot therefore be open to challenge in this second appeal. 13. As far as the other substantial question of law as framed by this court is concerned i.e. whether the findings of the two courts below with regard to bonafide and reasonable necessity are perverse, I am of the considered view that on the evidence on record the said substantial question of law has to be also answered against the appellant landlord. Perversity is a concept in law is an impossible conclusion to which no prudent man could at all come on the obtaining evidence, Mr. Perversity is a concept in law is an impossible conclusion to which no prudent man could at all come on the obtaining evidence, Mr. M.M. Ranjan has not been able to satisfy this court as to which of the landlord's evidence the courts below in their concurrent finding on bonafide and reasonable necessity of the landlord not being made out overlooked. Contrarily, I find that all of the landlord's evidence has been considered and in the context of tenant's defence evidence, on appreciation the trial court has held against the landlord. No perversity on that finding is even remotely made out. The trial court as also the first appellate court have taken into consideration the competing evidence on record of the landlord and the tenant and concluded that the landlord had various options to satisfy his propagated need of reasonable and bonafide necessity of constructing a Satsang Bhawan and Dharamshala for the benefit of worshipers and pilgrims to his private temple. The two courts below have held that no evidence was laid by the landlord to establish as to why the land/ premises admittedly available with him in the vicinity as against the tenanted premises were not suitable for the satisfaction of his propogated resonable and bonafide need. I am of the considered view that in the underlying evidence on record the conclusion of the trial court as affirmed by the first appellate court that the landlord did not have any reasonable and bonafide for tenanted premises are based on appreciation of evidence and cannot be faulted with. Resultantly the substantial question of law as framed on the question of the alleged perversity of findings of the trial court as affirmed by the first appellate court on the aforesaid issue has to be answered against the landlord. It is so. 14. With regard to the contention of Mr. M.M. Ranjan with regard to the alleged perversity in the finding of the first appellate court on the issue of material alteration and the tenanted premises being unfit for human habitation, I am of the considered view that it is without any force. It can not be disputed that the first appellate court has the jurisdiction to address all legal and factual issues as may arise in an appeal. It can not be disputed that the first appellate court has the jurisdiction to address all legal and factual issues as may arise in an appeal. That jurisdiction of the first appellate court confers upon it the power of reappreciating and reweighing the evidence on record before the trial court and evaluate the legality and validity of the trial court's conclusion on any issue. In the instant case, albeit the trial court found that material alteration had been carried out by the tenant in demolishing the "pucca construction" rented out to him by the landlord and replacing it by a tin shed structure and the tenanted premises were also otherwise unfit for human inhibition, the first appellate court taking into consideration the uncontroverted evidence with regard to roits in the City Jaipur in the year 1989 in which the tenanted premises occupied by the tenant (one belonging to minority community) , was vandalised, substantially destroyed and damaged, has held that the demolition/ damage could not be attributed to him and material alteration to his count found to warrant his eviction. The first appellate court found that the evidence of the landlord himself did not deny the roits as he only stated that he was not aware of the fact that in roits of 1989 the tenanted premises were damaged by roiters. The appellate court thus held that the factum of roits in 1989 not being denied was thus proved on the tenant's evidence and in any event there was no occasion to believe that the tenant could have himself substantially pulled down the tenanted permanent structure and damaged it, to replace it by a temporary structure with a tin roof to carry on his business of steel fabrication. The first appellate court in coming to such a conclusion has exercised its jurisdiction of reappreciation of evidence on record, probabilities of the case as also the presumptions of human conduct, as also the ordinary course of things and held that the demolition/ damage of the "pucca" tenanted shop and replacing it by a tin strcture could not be attributed to the tenant but to riots of 1989. I am of the considered view that the conclusion/ finding of the first appellate court being based on appreciation of evidence, probabilities and presumptions, law permits to take a reasonable and possible view which does not even remotely entail any perversity. I am of the considered view that the conclusion/ finding of the first appellate court being based on appreciation of evidence, probabilities and presumptions, law permits to take a reasonable and possible view which does not even remotely entail any perversity. This substantial question of law on this count, as submitted by Mr. M.M. Ranjan in the course of arguments does not arise in the instant case. 15. In the facts of the case, I am therefore disinclined to interfere with the impugned judgment and decree dated 3-12-2004 passed by the first appellate court in quashing and setting aside judgment and decree dated 4-5-2006 passed by the trial court and dismissing the landlord's suit. 16. The second appeal is dismissed.