KASHINATH KAUL Vs. SHAMDAS TIRATHDAS VASWANI

JUDGEMENT

(1.) THESE two Writ Petitions can be disposed of by a common judgment. Writ Petition No. 1218 of 1987 is filed by the tenant who complains of a decree passed by the lower Appellate Court, viz. the Extra Joint District Judge, Pune against the respondents-plaintiffs-landlords on the ground of nuisance. Writ Petition No. 2404 of 1987 is filed by the landlords who make a grievance of the failure of the lower Appellate Court to pass an eviction decree against the tenant on the ground that the decree had violated the provision contained in Section 12(1)(b) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter for the sake of brevity referred to as "the Bombay Rent Act"), and further that the tenant had either changed the user of the premises or had used the premises for business purposes in violation of the express term of the tenancy. As a matter of fact, the term relied on was the term under which licence was given to the tenant. The term of the licence must be regarded, in the instant case, as a term of the tenancy, so runs the argument.

(2.) THE discussion of the lower Appellate Court pertaining to nuisance is to be found in paragraph 14 onwards of the judgment where it deals with point No. 2 viz. re-annoyance or nuisance by the petitioner-defendant-tenant in Writ Petition No. 1218 of 1987 and respondent in Writ Petition No. 2404 of 1987 (hereinafter for the sake of brevity referred to as "the tenant") to the neighbours and the respondent-plaintiffs-landlords in Writ Petition No. 1218 of 1987 and petitioners in Writ Petition No. 2404 of 1987 hereinafter for the sake of brevity referred to as "the landlords"). I have been taken through the plaint, the evidence led on behalf of the landlords which is that of Shamdas Tirathdas Vaswani who was the husband of the owner of the premises as also of one lady by name Laxmi Kalyanpur who was witness No. 2 on behalf of the landlords. I have also considered Exhibit No. 81 which is an application made on 7th February, 1974 by the said Laxmi Kalyanpur and one H. Lulla to the Commissioner of Police, Pune, complaining of the conduct of the tenant. I have also gone through the evidence of the tenant in this connection. The tenant in his examination-in-chief stated that he did not know the said Laxmi Kalyanpur. In his examination-in-chief he denied that he or his wife (original Respondent No. - Defendant No. 2) has acted in a manner as to cause nuisance to the adjacent occupiers (not of the building owned by the landlords) but adjacent occupiers (not of the building owned by the landlords) but neighbours. Curiously, in cross-examination not one question was asked about this aspect of the matter. The whole evidence of Laxmi Kalyanpur and what was recorded in the application Ex. No. 81 was not put to the tenant. If that be so, his failure to cross-examine the tenant on the point must lead to a conclusion against the landlords in this behalf. Even apart from this, the trial Court relying upon the Gujarat High Court judgment set out in detail, has arrived at the proper conclusion in the matter of nuisance. One instance or one incident cannot bring the conduct of the tenant within the concept of 'nuisance' as provided under the Bombay Rent Act.

(3.) ACTUALLY the landlords came to Court on so many grounds hoping that at least one would stick against the tenant. Indeed, with so many grounds of eviction taken in the plaint the result was that not one of them was attended to properly.