GANPAT SHANKAR PAIGUDE Vs. VITHABAI NARAYANRAO ADHAV

JUDGEMENT

(1.) BY this petition filed under Article 227 of the Constitution of India, the petitioner challenges the order dated 21.8.1984 passed by the Assistant Judge, Pune, in Civil Appeal No.270/1983. That civil appeal was filed by the petitioner challenging the judgment and decree dated 4.9.1982 passed by the Additional Small Causes Judge, Pune, in Civil Suit No.2615/1979. That suit was filed by the respondent claiming therein that she is owner of C.T.S.No.622/B situate at Narayan Peth, Pune and that the petitioner is a tenant of one room in the suit house. The landlady sought a decree of eviction against the tenant mainly on the ground that the tenant has caused nuisance and annoyance to the neighbouring occupiers. The trial Court recorded finding in favour of the landlady and decreed the suit and directed the tenant to vacate the suit premises. In the appeal filed by the tenant, the appellate court confirmed the finding recorded by the trial court against the tenant and dismissed the appeal. It is these two or orders passed by the subordinate courts which are challenged in the present petition.

(2.) LEARNED counsel appearing for the petitioner, Shri Shah, urged that the only act attributed to the petitioner-tenant which, according to the courts below, amounts to causing nuisance and annoyance to the neighbouring occupiers is that the petitioner has kept some articles in the passage in front of his room. In the submission of Shri Shah, it was the case of the landlady herself that the passage was to be used in common by the three tenants and the landlady. Therefore the petitioner admittedly had a right to use the passage. In the submission of Shri Shah, the only conduct of the tenant that may amount to annoyance and nuisance would be the tenant doing an act which will exclude others who have a right in common with him to use the passage. In the submission of Shri Shah, perusal of the deposition of the landlady shows that she has nowhere even claimed that the petitioner at any point of time excluded either the landlady or the other tenants from using the passage in front of his room. In the submission of Shri Shah, both the courts have not at all looked into the deposition of the landlady and merely on the basis of some statements made by the petitioner in his deposition, recorded finding against the tenant. In the submission of Shri Shah, it is for the landlady to prove that any of act of the tenant amounts to nuisance or annoyance to the landlady. The only act attributed to the petitioner is that he had kept some articles in the Osari. However, inspite of putting these articles in the passage, it is not the case of the landlady that the others who were entitled to the common use of the passage were prevented from using the passage. Shri Shah further contended that the petitioner has filed an affidavit in this Court on 12.11.1984 stating that he had removed the articles which he had placed in the passage and since 1984 the petitioner has been using the passage as such and for no other purpose. Therefore, in the submission of Shri Shah, in the face of this statement made in the affidavit and in the absence of any counter affidavit being filed by the landlady disputing the correctness of the statements in the affidavit, it will be unjust to evict the petitioner from the suit premises which is a one room tenement only.

(3.) NOW , examining the record of the case in the light of the rival submissions, I find that it was the case of the landlady that 3 tenants and the landlady had a right to use the passage. The deposition of the landlady was recorded in the year 1982 and the act which is attributed to the tenant, namely, putting his articles in the passage, had taken place before the suit was instituted. In paragraph 4 of the deposition recorded in the year 1982, the landlady has made the following statements: