ZENOLIA NAIR Vs. HASMUKHRAI HARJIVAN BIBOI

JUDGEMENT

(1.) * * * *

(2.) Mr. B. R. Shah then urged that during the hearing of the appeal before the learned appellate Judge the petitioner tenant requested the learned Judge to take notice of the fact that the animal in question has been disposed of by the petitioner and therefore no cause for annoyance has remained. He made a grievance that the learned Judge wrongly disallowed this plea on the ground that it was a question of adducing additional evidence. Mr. Shah pointed out that this was not a question of adducing additional evidence but it was a question of taking notice of subsequent event which Courts always do in order to do justice between the parties and to avoid multiplicity of proceedings. To this extent Mr. Shah is right.

(3.) But then the question posed before us is whether in a case falling under first part of sec. 13(1)(c) of the Act can a plea be allowed to be taken at the appellate stage relating to abandonment of the conduct amounting to nuisance or annoyance ? While endeavouring to answer to this question I must say that the answer to this question is strictly confined to the provision of the first part of sec. 13(1)(c) which deals with the conduct amounting to nuisance or annoyance. This answer will not govern the question of taking notice of subsequent events in respect of grounds falling under other clauses of sec. 13(1) of the Act. Mr. Shahs argument was that the words used in the first part of sec. 13 are which is a nuisance or annoyance. He laid stress on the verb is used in the present tense. His submission was that this question has to be examined whenever there is occasion for the Court to reach the satisfaction contemplated by sec. 13(1) of the Act on the existence of which alone the Court will get jurisdiction to pass a decree for eviction in cases covered by the Act. The question is whether in a case governed by the first part of sec. 13(1)(c) the satisfaction to be reached is the satisfaction as regards the conduct as existing at the date of the suit or the satisfaction about the existence of that conduct subsequent to the passing of the decree for eviction. Now the object of sec. 13)(1)(c) is to see that the tenant forfeits protection granted to him by the Act if he has been guilty of a conduct which is a nuisance or annoyance. In such a case the landlord will become entitled to a decree for possession. The phrase has been guilty of conduct indicates existence of the conduct at a particular period of time before the institution of the suit. The phrase refers to conduct in the past which has continued upto the date of the filing of the suit or till a reasonable period before the filing of the suit. Thus the language of the section does not support the contention of Mr. Shah the Legislature having contemplated a particular type of pasconduct as sufficient for forfeiting the protection granted by the Statute to a tenant. This conclusion is further supported by the purpose behind the clause in question. This purpose is to ensure to the neighbours or occupiers of adjoining properties ordinary comfort of human existence and reasonable peace of mind (to quote the words of Bowen I. J. in Tod-Heatly v. Benham 40 Ch. D. 80). Thus the protection given to the tenant by the Act is made subject to his obligation towards his fellow beings in the neighbourhood; and that obligation is that he must behave in a decent manner in the sense that he should not be guilty of a conduct which may amount to material interference with the ordinary comfort of human existence or which reasonably troubles the mind and pleasure of ordinary sensible inhabitants of the adjoining or neighbouring premises-a conduct which brings about disturbance of reasonable peace of mind of such adjoining or neighbouring occupiers. If the object of the provision is to protect the adjoining or neighbouring occupiers from such a conduct this salutory provision will be rendered meaningless if the tenant guilty of such conduct fights out a suit for eviction based on the ground falling under the first part of sec. 13(1)(c) with all vehemence at his command before the trial Court and when faced with a decree for eviction improves the conduct and tells the appellate Court that he is no longer guilty of that conduct in the sense that the nuisance or annoyance has abated. Such a man during the trial of the suit will persist in his conduct amounting to nuisance or annoyance and persist in disturbing or interfering with the physical comfort as well as mental peace of adjoining or neighbouring occupiers. when faced with a decree for eviction he can tell the appellate Court to forget the past and allow him to continue in the premises. This cannot be the object of the provision in question. If this plea is allowed at the appellate stage when the tenant is faced with a decree for eviction the salutory provision of this clause intended to protect the peace of mind and comfortable existence of neighbours would be rendered meaningless. _ The verb is is used only in order to show that the conduct amounts to nuisance or annoyance. The more material words are has been guilty of conduct. Therefore that conduct must exist upto the date of institution of the suit or within a reasonable time before the suit and must amount to nuisance or annoyance. That is the only reasonable meaning which can be given to the phrase has been guilty of conduct which is nuisance or annoyance to the adjoining or neighbouring occupiers read as a whole. On this ground therefore I would hold that the learned appellate Judge was right in not taking notice of the subsequent event in this case. Application dismissed.