NARPATCHAND A BHANDARI Vs. SHANTILAL MOOLSHANKAR JANI

JUDGEMENT

(1.) In this appeal by special leave, the summary rejection by the Bombay High Court of an application filed under Art. 227 of the Constitution, for setting aside an eviction order made by the Court of Small Causes at Bombay - the trial court, under clause (c) of sub-sec. (1) of S. 13 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, to be referred to a 'the Act' and upheld by the appellate Division Bench of the same court -- the appellate court, is questioned.

(2.) Sudarshan Building No. 2, Shivaji Park Road No. 3, Bombay-28 is a storeyed building comprised of a large number of flats occupied by different tenants. Flat No. 10 in the Second Floor of that building (to be referred to as 'the premises) was in occupation of the appellant-defendant ever since the year 1952 as its tenant under Kherodkar, the owner of the whole of that building. In the year 1958, when Kherodkar mortgaged with possession the said building in favour of respondents-plaintiffs, the defendant and other tenants in different flats of that building became tenants under plaintiffs (usufructuary mortgagees) and continued as such tenants on payment of monthly rents to them. But, by a quit notice dated July 3, 1967 the plaintiffs determined the monthly tenancy of the defendant respecting the premises in his occupation and sought to recover from him the possession of the premises by instituting a suit in the Court of Small Causes at Bombay on the very ground on which his tenancy was terminated, that is, that the defendant had been guilty of conduct which was a nuisance or annoyance to the adjoining or neighbouring occupiers. That was a ground which entitled the landlord under clause (c) of sub-sec. (1) of S. 13 of the Act, to recover possession of the premises from the tenant. That ground had been based on plaintiffs' allegations of threats of murder posed by the defendant to the neighbouring occupiers; abuses hurled at neighbouring occupiers by his sons; whistling at neighbouring occupiers by the defendant's sons; spitting against the walls and in the common staircase area of the building by the defendant's sons; obstructions offered by the defendant, his wife, sons and servants to the neighbouring occupiers to reach the common terrace of the building by a staircase and removal by them of aerials of radios of the tenants in the other flats of the building, which had been fixed above the common terrace; obstructions offered to the landlords and their workers to inspect the common terrace; unauthorised erection by the defendant in the common terrace area certain machinery and running it during nights causing disturbance to sleep of neighbouring occupiers and also unauthorised use by the defendant of the water in common over-head storage tanks in the common terrace area for his business purposes depriving other tenants of the normal use of such water. The defendant, however, resisted the claim for recovery of possession of the premises, made in that suit by filing a written statement thereto, denying the allegations of nuisance and annoyance levelled against him, his wife, sons and servants and urging that those allegations, even if established, did not constitute the ground of nuisance or annoyance envisaged under clause (c) of sub-sec. (1) of S. 13 of the Act, as a ground for recovery of possession of premises from a tenant. It was also urged therein by the defendant that the around for recovery of possession of premises from a tenant under clause (c) thereof was not available to plaintiffs, for they being usufructuary mortgagees of the building were not 'landlord' within the meaning of that expression in sub-sec. (1) of S. 13 of the Act as would entitle them to recover possession of premises from a tenant. In so far as the common terrace, the defendant's unauthorised use of which was complained of by the plaintiffs, the defendant urged therein that he being a tenant of that terrace in addition to the premises, was entitled to put it for the use of his choice and prevent other tenants in the building from its common use. It was further urged therein that the suit having been instituted by the plaintiffs to pressurise the defendant and extract from him higher rent for the premises was vitiated by mala fides. The trial court which tried the suit, on an appraisal of the oral and documentary evidence adduced by the parties, recorded its findings on issues arising for its determination in that suit in favour of the plaintiffs and against the defendant. Consequently, it decreed the suit of the plaintiffs for recovery of possession of the premises from the defendant. The appellate court before which the decree of the trial court was appealed against by the defendant, on its re-appraisal of the evidence, affirmed the findings of the trial court and dismissed the appeal. Feeling aggrieved by the decree of the trial court and its affirmation by the appellate court, the defendant impugned the same by filing a writ petition under Art. 227 of the Constitution before the High Court of Bombay, but that writ petition was rejected by the High Court in limine. The defendant has questioned in this appeal by special leave, the correctness of the decree of the trial court made against him for recovery of possession of the premises by the plaintiff, the decree of the appellate court affirming the decree of the trial court and the order of the High Court rejecting his writ petition.

(3.) In support of the appeal, three contentions were raised before us by Shri B. K. Mehta, the learned senior counsel for the appellant-defendant. But those contentions were strongly refuted by Shri U. R. Lalit, the learned senior counsel for respondents-plaintiffs. Taking into consideration the serious nature of the contest, we shall examine the merit in everyone of the contentions, rather in detail.