LAXMIBEN MAVJIBHAI Vs. SHANKARBHAI MULUBHAI

JUDGEMENT

(1.) This landlords' revision application under Sec. 29(2) of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 is against concurrent judgment of two Courts below whereby the Courts have refused the decree of eviction in favour of the landlords and against the respondent-tenant.

(2.) In order to properly appreciate the submissions made by Miss V. P. Shah, learned Counsel for the landlords, the relevant facts giving rise to the present revision application are stated hereinafter briefly : (i) The landlords instituted Reg. C. S. No. 1089 of 1971 which came to be renumbered as Rent Suit No. 638 of 1977 on the establishment of the Court of Small Causes at Surat. The suit was filed for recovery of possession of the premises bearing No. 1598 situated in Ward No. 8 in Gopipura, Surat inter alia contending that the defendant-tenant was a tenant of two rooms on the ground floor of the said building at a monthly rent of Rs. 20.00 and Rs. 4.00 per month towards municipal taxes. That he was in arrears of rent from 1-5-71 for a period of 4 months, that the front room was being used by the tenant for carrying on his business of cycle repairing and rear room was used for residence with his family. (ii) It was contended that the defendant-tenant was liable to be evicted firstly on the ground that he has erected on the premises permanent structure without the consent of the landlords in writing. It was contended that the defendant-tenant has constructed a loft and had inserted wooden beams in the walls for putting up the loft. It was also alleged that he has put rolling shutters in place of wooden door and for that purpose he has damaged the front wall. It was further alleged that the defendant had inserted nails with big joints in the wall as well as in the weather-sheds for the purpose of displaying tyres and tubes. These various acts committed by the defendanttenant amounted to making permanent structure in the suit premises without obtaining consent in writing of the landlords and therefore, the defendanttenant was liable to be evicted under Sec. 13(1)(b) of the Bombay Rent Act. (iii) Another ground pressed into service by the landlords for seeking eviction of the tenant was that the defendant-tenant has been guilty of conduct which amounted to nuisance or annoyance to the adjoining or neighbouring occupiers and that therefore, he was liable to be evicted under Sec. 13(1)(c) of the Bombay Rent Act. It was alleged that the parsal or backyard at the back of the premises was not leased to the defendant and yet he was keeping his cot in the parsal and causing nuisance and annoyance to the landlords. He was also keeping his kits and other household articles. He was also keeping his water-heater and also using fire-wood and cow-dung cakes for the purpose of heating water which created lot of smoke and not only blacken the walls but caused damage to the walls. The defendant was requested time and again not to make use of parsal or backyard for the aforesaid purpose but he used filthy language abusing the landlord and assaulted him on number of occasions and as many as 21 criminal complaints and Chapter cases came to be filed for such conduct of the defendant. That the defendant was, therefore, liable to be evicted on the ground that his conduct amounted to nuisance and annoyance to the neighbouring occupiers. On the aforesaid grounds the landlords sought decree of possession against the tenant as well as decree for arrears of rent of Rs. 96.00. (iv) The petitioners-landlords also instituted one another suit being R. C. S. No. 385 of 1972 which came to be renumbered as Rent Suit No. 680 of 1977 against the defendant-tenant for declaration and permanent injunction declaring that the defendant-tenant had no right to use parsal or backyard for any purpose and for permanent injunction restraining the tenant from putting cow-dung cakes, articles, water-heater, cycles, cot, etc., in the backyard and from cleaning and washing clothes, cycles in the chowk at the backyard. (v) Both the suits were consolidated and common evidence was led. The Court of Small Causes at Surat by common judgment and decree, dated 10-4-1978 dismissed the Rent Suit No. 638 of 1977 for possession and fixed standard rent at the rate of Rs. 24.00 p.m. inclusive of municipal taxes and only passed decree for arrears of rent for an amount of Rs. 96.00. As regards decree for possession the suit of the landlords was dismissed. However, the trial Court decreed the suit of the landlords being Rent Suit No. 680 of 1977 and granted declaration that the defendant has no right to put his articles like cot, water-heater and cycles in the backyard or parsal of the suit premises and further granted permanent injunction restraining the defendant from obstructing the passage of the plaintiffs and other tenants for going to latrine and putting articles like cot, waterheater, cycles, etc., in the backyard and restrained the defendant from cleaning or washing cycles and clothes in the chowk. (vi) Being aggrieved by the judgment and decree passed by the trial Court in Rent Suit No. 638 of 1977 whereby the trial Court refused decree for possession in favour of landlords, the landlords preferred Reg. Appeal No. 130 of 1978 in the Court of Extra Asstt. Judge, Surat. However, against the judgment and decree of declaration and permanent injunction passed in favour of landlords and against defendant, the defendant-tenant did not prefer any appeal. The judgment and decree of the trial Court, therefore, in Rent Suit No. 680 of 1977 had become final and declaration as well as injunction granted by the trial Court against defendenat-tenant were not the subject-matter of appeal before the lower appellate Court nor could they be challenged in this revision application by the tenant. (vii) The Extra Asstt. Judge, Surat by judgment and decree, dated 6-10-1980 dismissed the Regular Civil Appeal No. 103 of 1978 and confirmed the decree passed by the trial Court thereby dismissing the suit of the landlords for possession of the suit premises and confirmed the decree passed by the trial Court.

(3.) Being aggrieved by the aforesaid findings and concurrent decree of the two Courts below the landlords have preferred this revision application.