Back
1995 Supreme(Guj) 263
Gujarat High Court
Judgename :S.D.Shah
LAXMIBEN MAVJIBHAI - Appellant
Versus
SHANKARBHAI MULUBHAI - Respondent
C.R.A. 268 of 1981
Decided On : 06/22/1995
Headnote:(a) Bombay Rents, Hotel & Lodging House Rates Control Act, 1947 - Sec. 13(1) (b) - Permanent structure as ground for eviction - Partition wall, door, kitchen stand & other minor alterations in premises do not amount to permanent structure - Minor alterations removable without serious damage to premises are permissible - Tenant placing rolling shutters with consent of landlord - Held, it cannot provide ground for eviction.Merely by reason of construction of partition wall, door or lattice work of the filling of kitchen stand or such other alterations made in the premises which can be removed without serious damage to the premises it would not amount to making of a permanent structures. Ramovability of structure without seriously damaging the premises is the test provided by the legislature which is well accepted by this court. It gives liberty to the tenant merely to put up a partition wall, a door or lattice or to fill in the kitchen stand or such other alterations. Such minor alterations which could be removed without serious damage to the premises are permissible and can not be considered to be erection of a permanent structure within the meaning of clause (b). In my opinion, it will not be permissible for this court to pass decree of eviction on the ground that the defendant-tenant has placed rolling shutters and has thereby made permanent construction. It is, thus clear that placing of rolling shutters was with the consent of the plaintiff-landlord and in fact plaintiff-landlord got rolling shutters fixed in other part of the groundfloor premises through very Labhshanker Parmanand. This construction or alteration therefore can not provide a ground for eviction of the tenant, plaintiff-landlords having consented to such alteration being made.[Paras 9 & 11](b) Bombay Rents, Hotel & Lodging House Rates Control Act, 1947 - Sec. 13(1)(c) - Annoyance - Two conditions for its establishment - Tenant using backyard portion as bath room, placing cot for sleeping purpose, storing goods and burning wooden pieces & dung cakes - Held, it amounts to annoyance and (ii) Repeating conduct more than 20 times and pleading guilty in criminal proceedings - Held, it makes out strongly case of annoyance.In order to attract the provisions of this clause the landlord has to establish :(i) the offending conduct of the tenant or any person residing with the tenant.(ii) that such conduct was causing annoyance or nuisance to the adjoining or neighbouring occupier.It shall have to be held that persistent conduct of the defendant-tenant in using the osri, parsal or backyard portion as well as bath room by placing his cot or charpoy for sleeping purpose, by storing his goods or articles in such open place, by keeping his water heater and using the same by burning wooden pieces and/or cow dung cakes resulting into emission of black smoke would undoubtedly result into annoyance to the neighbouring occupiers including the other tenants and landlord himself. The conduct of the tenant in persisting to commit the same conduct requiring the landlord to file every time criminal complaint or chapter case and ultimately before the criminal court by pleading guilty and by giving assurance of better behaviour or conduct in future and assurance of not repeating such conduct in future and once again persistently committing such conduct more than 20 times would, in my opinion, very strongly make out a case of nuisance or annoyance to the neighbouring occupiers who happen to be landlord in the present case. When the tenant has persistently and stubbornly acted not only in breach of his duty but also in breach of assurances given by him to the criminal courts and has repeated the conduct which has caused tremendous and unbearable pain and mental torture to the landlord for which he was required to file as many as 20 complaints his conduct squarely falls within the meaning of "nuisance" and "annoyance" and he is liable to be evicted.
[Paras 14, 17, 19 & 23]
( 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
