K NATARAJAN Vs. C MURUGESAN

JUDGEMENT

(1.) THE tenant is the revision petitioner.

(2.) NOTICE of motion was ordered on 3.5.2001 and on 6.11.2001, the matter was argued by both the counsel.

(3.) MR.V.Raghavachari, learned counsel for the petitioner submitted that the C.M.P. for receipt of additional evidence ought not have been ordered straight-away. The Court ought to have been satisfied that the provisions ofO.41, Rule 27, C.P.C. applied to the given situation. When no reason was given as to why these documents were not produced before the Rent Controller, the Appellate Authority erred in allowing the application. He also pointed out that the judgment in O.S. No.3916 of 1990 is not conclusive of the existence of either nuisance, act of waste or change of user in view of the provisions of the Indian Evidence Act. According to the learned counsel, when the case of the petitioner was that, right from the beginning, the tenant had been permitted to carry on the business of aluminium manufacture, the question of change of user does not arise. As regards nuisance, he would submit that nuisance can only be proved by examining the occupants in the premises since that is what the Section envisages and when the respondent has not chosen to examine any of the occupants, nuisance cannot be held to be proved. He also relied on several decisions to show what acts amount to nuisance. According to the learned counsel appearing for the revision petitioner, the authorities below had erred in placing reliance on the Commissioner's report which was marked in the Civil Suit and arriving at the conclusion that there was act of waste when R.W.3 who is himself an Engineer had clearly deposed that there was no act of waste. The learned counsel also pointed out to the conduct of the respondent who had refused to accept the rents paid to him by sending it to the address at 294, Anna Salai, which was returned as "No such person". That was the very address from which the respondent had sent the notices and it was the address given in the petition as his address for service. It was clear from all these that the respondent was bent on getting rid of the tenant by fair means or foul. Learned counsel also pointed out that Sec.10(2)(v) entitles a landlord to obtain orders of eviction on the ground of nuisance only if it is proved that the acts and conduct of the tenant were nuisance to the occupiers of other portions in the same building or buildings in the neighbourhood. In the present case, the respondent had examined only himself and an officer of the Corporation Health Department. Therefore, the nuisance that has to be proved under the Act had not been established. He also submitted that there was absolutely no evidence to show that the petitioner had committed or caused to commit acts of waste which were likely to impair the value or utility of the building. He further submitted that injustice had been caused by the Appellate Authority failing to consider that the petitioner had examined three witnesses on his side. As a matter of record, it was shown that the Appellate Authority had referred to the witnesses thus: