Rajasthan High Court - Jaipur
Purshottam Dass Through L.Rs. vs Kashi Prasad Jain Through L.Rs. on 26 August, 2003
Equivalent citations: RLW2004(1)RAJ49, 2003(4)WLC563
JUDGMENT Goyal, J.
1. This First Appeal under Section 96 of the Civil Procedure Code (in short C.P.C.) is preferred against the judgment and decree of learned Additional District Judge No. 7, Jaipur City, Jaipur dated 16.3.1993, in Civil Suit No. ' 81/88, whereby decree of eviction from the suit premises was passed in favour of the plaintiff landlord Shri Kashi Prasad (here-in-after referred to as the plaintiff) against the defendant tenant Shri Purshottam Das (here-in-after referred to as 'the defendant' (now both deceased).
2. The relevant facts for decision of this appeal are that the plaintiff filed a suit in the Court of District Judge, Jaipur City, Jaipur, on 26.7.1984, with the averments that northern flat in the Plot No. A-11 at Jaipur, was given on monthly rent of Rs. 375/- to the defendant on 1.6.1976, which was enhanced to Rs. 450/- from 1.1.1978. The plaintiff sought eviction on the following grounds :-
(i) that the defendant committed default in payment of rent for more than six months i.e. from February 1979;
(ii) that the premises are required reasonably and bonafide by the plaintiff;
(iii) that the defendant has sub-let a part of the premises to one Abdul Rajjak without permission by way of the amended plaint:-
The following two grounds of eviction were added by way of emended plaints :-(iv) that the defendant has created nuisance, and (v) that the defendant has changed the use of the premises.
3. The "defendant denied all the allegations in his written statement. It was pleaded by him that the plaintiff has got four flats in Plot No. A-l 1 and earlier tenants have already vacated other flats in this plot and thus the plaintiff has got suitable accommodation. It was also pleaded that the plaintiff several times asked him to enhance the rent upto Rs. 1.000/- but he did not agree.
(4). On the basis of the pleadings of the parties following issues were framed:-
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5. The plaintiff apart from himself, examined P.W. 2 serva Shri Girraj Prasad Agarwal, P.W. 3 Chandra Ranka, P.W. 4 Shanker Lal and P.W. 5 Upendra Kumar. The defendant tenant examined himself as D.W. 1, D.W. 2 Sharad Sahu, D.W. 3 Abdul Rajjak, D.E. 4 Harish Kumar Gupta and D.W. 5 Rajiv Krishna.
6. Having heard learned counsel for the parties, learned Additional District Judge No. 7, Jaipur City, Jaipur, decided all the issues except Issue No. 4 in favour of the plaintiff and decreed the suit for eviction and arrears of rent. However, Issue No. 1 was partly decided in favour of plaintiff that default in payment of rent was proved not from February 1979 as pleaded but from October, 1983.
7. I have heard learned counsel for the parties and gone through the entire evidence oral as well ad documentary.
8. Now the question arises as to whether the findings of the trial court on Issue Nos. 1, 2, 3 and 5 to 7 are justified or calls for any interference by this Court ?
9. On the point of default in payment of rent, the contention put forward by learned counsel for the defendant is that this issue was wrongly decided in favour of plaintiff because the case of the plaintiff was not found proved that rent is due from February 1979. Thus, a new finding of default in payment of rent from October 1983 was impermissible. Section 13 (1) (a) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (In short the Act,) provided that one of the grounds of eviction would be where the tenant has neither paid nor tendered the amount of rent due from him for six months. Admittedly, the suit was filed on 26/7/1984. The rent was found due from October, 1983. The rent of fact has not been disputed by either party in this appeal. Hence, it was rightly decided by the trial court that the tenant committed default in payment of rent for a period of more six months.
10. It was next submitted that the defendant had deposited the entire amount of rent as determined under Section 13(3) of the Act but no benefit of first default as provided under Section 13 (6) of the Act was given. Learned counsel for the plaintiff contended that it is essential for the appellant to show that he continued to deposit monthly rent during pendency of appeal also and unless and until he proves this face, he is not entitled to any benefit as provided under Sub-section (6) of Section 13 of the Act. He placed reliance upon one judgment of the Hon'ble Apex Court reported in Shiv Dutt v. Ganga Devi (1). In reply, it was submitted that during the pendency of suit and this appeal, rent was and is being regularly deposited and there is no such objection on behalf of the plaintiff.
11. Having considered the said submissions in the light of the judgment of the Hon'ble Apex Court in Shiv Dutt's case (supra), it is clear that the plaintiff had no where raised this objection that the defendant ever failed to pay or deposit monthly rent during the pendency of this appeal. Therefore, the defendant was and is entitled to benefit to first default as provided under Sub-section (6) of Section 13 of the Act. However, the trial court did not record any such finding. Further, it is made clear that excess rent amount deposited in compliance of the order of the trial court passed under Sub-section (3) of Section 13 of the Act, would be adjusted as provided under Section 13 (8) (b) of the Act.
12. As regards reasonable and bonafide requirement, Section 13 (1) (h) of the Act, provides that the landlord may obtain a decree of eviction where the premises are required reasonably and bonafide by him for the use or occupation of himself or his family. In para 3 and 6 of the plaint, it is pleaded that the plaintiff was at Jaipur upto July.1978. Thereafter, he was transferred to Banswara and again to Jaipur in June, 1983. He alongwith his wife, two sons and four daughters is residing in a portion consisting of one garage and two rooms situated in other side. He is a gazetted officer and the accommodation available to him is not suitable. In reply, it was pleaded that the plaintiff was in possession of same premises when the suit premises were let-out to him in 1976 and now the flat situated in souther in side of the suit premises has already been vacated by another tenant. One other flat in the same plot was rented out by the plaintiff to one Rajendra Katara-much after the defendant was' inducted as a tenant. According to defendant, the plaintiff wanted to enhance the rent and on his refusal to do so, he filed the present suit and his need for the suit premises is not reasonable and bonafide.
13. Before adverting to the evidence and rival submissions made by learned counsel for the parties, it would be appropriate to refer the judgments relied upon by both sides. Learned counsel for the defendant placed reliance upon following judgments :-
(i) In S.J. Ebenezer v. Velayudhan and Ors. (2), it was held by Hon'ble Apex Court that while considering the question of bona fides, - what is necessary to bear in mind is that mere desire on the part of the landlord is not enough. The desire must be tested objectively and not subjectively. The burden also lies upon the landlord to establish that the genuinely requires the accommodation.
(ii) In Amarjit Singh v. Smt. Khatoon Quamarain (3), it was held that reasonably suitable accommodation has to be considered from the angle of providing habitant only and not comfort to landlord. It was also held that in case of eviction Court should take cognizance of events taking place subsequent to filing suit.
(iii). In Maqboolunnisa v. Mohd. Saleha Quaraishi (4), the facts were that during pendency of the proceedings in trial court, a shop adjacent to the demised premises also measuring 10'xl5' was vacated by another tenant and the landlady did not amend the pleading to assert that the vacated shop was not sufficient for her son's business. At the trial, it was stated by the landlady that by breaking the wall between the suit shop and shop vacated, the entire area could be converted into a big shop to enable her son to carry on his business. In view of these facts, it was held that such evidence should not have been allowed as it was beyond the pleadings and even otherwise "desire" to have a very large shop cannot be equated with a "genuine bona fide need" to have the premises.
(iv) In M.S. Zahed v. K. Raghavan (5), it was held that requirement ' must not only be bona fide but also be reasonable.
(v) In B. Kandasamy Reddiar v. Gomathi (6). Hon'ble Apex Court held that subsequent events should also be considered and in case the landlady required additional accommodation after institution of the suit, it is necessary for the court to consider question of hardship to the tenant.
(vi) In Deena Nath v. Pooran Lal (7), it was held that if in recording a finding of the fact the Court does not bear in mind the statutory provisions, such finding can be set-aside in second appeal, even if concurrently made by lower courts. It was also held that statutory requirement is that there must be an actual pressing need, not a mere whim or fanciful desire and it must be in prescient and also landlord must not be in possession of any other reasonably suitable accommodation of his own in the town or city concerned.
(vii) in Chhogalal v. Bhanwarlal (8), this court held that where the real motive of the landlord was not to use suit premises but to remove the tenant with expectation to re-let the suit premises on a higher rent, the requirement cannot be said to be bona fide.
On the other hand learned counsel for the plaintiff relied upon following judgments :-
(i) In Rena Drego v. Lalchand Soni (9), it was held that landlady having six members of family and occupying a flat of two rooms, her need for additional accommodation was bona fide and it cannot be contended that hardship to tenant would be more than the hardship which landlady is now facing due to shortage of place particularly in view of large number of members of her family.
(ii) In Bhairab Chandra Nandan v. Randhir Chandra Dutta (10), it was held that landlord wanted additional accommodation for three unmarried grown up sons and one daughter. Grown up sons cannot be huddled in one room on factors of privacy and convenience and thus need was bona fide.
(iii) In Jagannath Bhatia v. IIIrd Additional District Judge, Bereilly (11), it was held that in case landlord is a man of status and he needs additional accommodation for safe custody of car, servants and proper living of family members, need cannot be said to be fanciful.
(iv) In H.T. Primlani v. Shanta Malhotra (12), it was held that garages and servant quarters are not meant to be used for living purpose.
(v) In M.L. Prabhakar v. Rajiv Singal (13), it was held that family of landlord could not be expected to move into premises occupied by their servants and the suitability had to be seen from the convenience of the landlord and this family members and on the basis of the totality of the circumstances including their profession, vocation, lifestyle, habits and background.
(vi) In Meenal Eknath Kshirsagar v. Traders and Agencies (14), it was held that it is for the landlord to decide how and in what manner he should live. Landlord is the best judge of his residential requirement. If landlord desired to beneficially enjoy his own property when the other property occupied by him as a tenant or on any other basis is either insecure [B] or inconvenient it is not for the courts to dictate him to continue to occupy such premises.
(vii) In Dr. Saroj Kumar Das v. Shri Arjun Prasad Jogani (15), it was held that alternative accommodation available with the landlord but not suitable for his residence, landlord is entitled to eject tenant and mere availability of alternative accommodation will not be a ground to refuse decree for eviction.
(viii) In Gaya Prasad v. Pradeep Srivastava (16), it was held that landlord should not be penalised for the slowness of the legal system. Crucial date for deciding the bona fides of the requirement of landlord is the date of his application for eviction. Subsequent developments during pendency of eviction petition occurring because of slowness of process of litigation itself and made use of by sitting tenants cannot be made the basis for denying the landlord relief when the litigation as last reaches final stage. It was clarified that subsequent events may in some situations to be considered but the same should not be used to penalise the landlord where litigation drags on for no fault of his.
(ix) In Sarla Ahuja v. United India Insurance Company Ltd. (17), it was held that tenant cannot dictate how landlord should adjust himself without getting possession of the tenanted premises.
(x) In Ragavendra Kumar v. Firm Prem Machinery and Co. (18). It was held that landlord is the best judge of his bona fide requirement for residential or business purpose.
(xi) In Oriental Fire and General Insurance Co. Ltd. v. Hukamchand Jain (19), it was held that sons and daughters of landlord living outstation but visiting landlord off and on, landlord is bound to provide accommodation to them.
(xii) In O.P. Soni v. Om Kumar (20), it was held on plea of the tenant that landlord only wanted to increase the rent and there was nothing on record to support this plea, it is desperate plea raised by most of the tenants. Without any evidence or material to support such plea, it cannot be entertained on the basis of a mere assertion.
(xiii) in Akhileshwar Kumar and Ors. v. Mustaqim and Ors. (21), it was held that once landlord proves his bona fides to the objective satisfaction of the court of the facts, the choice of accommodation which would satisfy his requirement should be left to landlord's subjective choice and the court cannot impose its own choice.
14. Learned counsel for the defendant referred the entire evidence of the parties and contended that at the time of institution of the suit, the plaintiff was residing in a garage and two rooms situated at south east corner of main building and thereafter, southern flat of the suit premises was vacated by the tenant Sh. Taj Karan Mittal and the plaintiff shifted to this flat and thus plaintiff's need is no more reasonable and bona fide. It was also contended that the ground floor of south east flat which was let out to Sh. Rajendra Katara was also vacated after filing the suit and one garage and two rooms were in the occupation of the plaintiff at the time of filing the suit as pleaded in para 6 of the plaint. According to learned counsel for the defendant, the entire portion shown in red colour in the site plan of the building submitted in this court along with application under Order 41 Rule 27 C.P.C. is in possession of the plaintiff. It was also submitted that during pendency of the suit and this appeal, parents of the plaintiff had expired, all the four daughters of the plaintiff were married and out of two sons of the plaintiff, elder son Pradeep Kumar is residing at Banswara and younger son Hemendra is residing with the plaintiff and thus now only three persons, namely plaintiff, his wife and their younger son are residing in the entire portion as shows in the site plan and thus the accommodatipn now available with the plaintiff is more than sufficient for them. It was also argued that story of two servants was never pleaded and it was introduced by the plaintiff during trial and further none of the servant was examined and thus the trial court wrongly relied upon this evidence.
15. Per contra, learned counsel for the plaintiff contended that at the time of filing the suit, the plaintiff was residing in the southern flat of the suit premises. He next submitted that Shri Rajendra Katara occupied servant quarter for some time and on availability of suitable accommodation, he vacated the servant quarter. It was next submitted that separate two portions in all consisting of four rooms in the back of the main building are the servant quarters and these quarters were offered to the defendant but he declined the offer. He submitted that when the defendant himself denied the offer on the ground that these servant quarters are not suitable for his residence, then how the same can be suitable for the landlord who retired as Chief Accounts Officer of the State of Rajasthan. It was also submitted that at present the plaintiff's family consists of himself, his wife, two sons, elder son's wife and one nephew Himanshu and they occupy only two bedrooms and one drawing room; that out of his four daughters, two are married in Jaipur, third in Bikaner and fourth in Karauli; that his daughters, with their family members and his brother Arun alongwith other relatives come and stay with them, thus the requirement of the plaintiff is both reasonable and bonafide. Next submission was that the defendant Purshottam Das expired in January 1996; his elder son Ram Krishna has shifted to Indore and only his wife, younger son Rajiv Krishna and his wife were residing in the suit premises and at present, they are living in Plot No. S.B. 7, Subhash Nagar, Jaipur.
16. I have considered the rival submissions, the evidence of the parties and the judgments relied upon and find no good ground to interfere with the decision of the trial court on this issue. It is correct to say that the plaintiff was residing in garage and two rooms situated in the back of the suit premises at the time when the suit premises were let out to the defendant. This submission of learned counsel for the plaintiff that he was residing in the southern side flat at that time cannot be accepted in view of the specific plea made in para 6 of the plaint, although it is not in dispute that now the plaintiff is occupying southern side flat which was vacated by Sh. Tej Karan Mittal after filing the present suit. The question is as to whether the accommodation available in southern flat is sufficient for the plaintiff ? On perusal of the entire evidence of the parties, the answer to the said question comes negative. Now it is well proved on the basis of the evidence and subsequent events during pendency of the suit and the appeal that the plaintiff is residing with his wife, his two sons, wife of elder son and one nephew Himanshu. The objection raised by learned counsel for the defendant that no such plea was added by way of amendment that plaintiff's nephew Himanshu is residing with him, the admission of the defendant, in this regard cannot be taken into consideration, cannot be accepted as the defendant himself had filed an application under Order 41 Rule 27 C.P.C. containing subsequent events which took place during pendency of the suit and the appeal and has urged this Court to take such subsequent events into consideration. Learned counsel for the plaintiff did not object to take into consideration the subsequent events as contained in application under Order 41 Ruler 27 C.P.C. It was rightly submitted that each and every subsequent event cannot and should not be expected to be incorporated in the plaint or written statement by way of amendments, particularly in case which was instituted about 27 years ago. It is not in dispute that D.W. 1 Purushottam Das himself admitted in cross-examination that plaintiff's nephew Himanshu resides with the plaintiff. Thus, looking to the members of the family of the plaintiff residing with him and a number of close relatives visiting him, the present accommodation available with the plaintiff cannot be said to be sufficient. Another submission on behalf of the defendant that plaintiff apart from the southern flat has got other sufficient accommodation in the back of the main building and thus, need of the plaintiff is neither bonafide nor reasonable, is also not acceptable. It is significant to say here that according to the plaintiff, this accommodation in the backside is meant for the servants and occupied by his two servants namely Ramavtarand Gautam was offered to the defendant but he declined the same on the ground that this is not suitable to the landlord. A landlord can not be compelled to reside in back portion meant for servants as held by Hon'ble Apex Court in cases of H.T. Primlani and ML. Prabhakar (supra). The plaintiff Kashi Prashad clearly stated before the trial court that both the servants were employed in the year 1986 after two years of filing of this suit. Further, mere non-examination of the servants is no ground to discard the other evidence of the plaintiff. At the cost of repetition, it is significant to say that during cross- examination, the alternative accommodation in the backside of the main building on the ground that the same is not suitable for him. Thus it is not correct to say that need of the plaintiff is not bona fide and reasonable. It is not a case of mere desire of the plaintiff. It is also not acceptable that the real motive of the plaintiff was to enhance the rent as there is no such supporting evidence. Plaintiff's plea that rent was enhanced only once from Rs. 375/- to Rs. 450/- was also rejected by the trial court. As held by Hon'ble Apex Court in Deena Nath's case (supra) that there must be actual need, not mere whim or fanciful desire, it must be in praesenti and also landlord must not be in possession of any other reasonably suitable accommodation, the need of the plaintiff does not seem to be a mere whim or fanciful desire but it was rightly held by the trail court that he is in actual need of the suit premises and it holds good even in praesenti. Further, grown up sons and other members of the landlord's family can not be huddled in one or two rooms on factors of privacy and convenience as held in Bhairab Chandra Nandan's case (supra). The suitability has to be judged from the convenience of the landlord and his family members on the basis of the totality of the circumstances including their profession, vocation, lifestyle, habits and background and the tenant cannot dictate as to how landlord should adjust himself without getting possession of the tenanted premises. Thus, on the basis of the aforesaid discussion, I find no reasonable ground to interfere with the decision on this issue.
17. Next issue is with regard to comparative hardship. On the basis of the submissions made on the issue of reasonable and bona fide need, it was contended that in view of entire accommodation shown in red portion of site plan submitted in this Court available to the plaintiff, if the decree of eviction is affirmed, the defendant would suffer more hardship in comparison to that of plaintiff as the defendant has got no other accommodation of his own. Learned counsel for the plaintiff argued that according to the statement of the defendant himself alternative accommodation is available but on higher rent and thus no greater hardship would be caused to the defendant only on the ground of paying higher rent, inconvenience and some expenditure in shifting. No doubt, there is not such evidence that the defendant has got accommodation of his own, but this fact was admitted by the defendant himself in his statement that he can get alternative accommodation on rent at Jaipur but on higher rent. He further stated that another hardship would be that by shifting somewhere else, his friends and relatives would face hardship in coming over to the new place. It was also admitted by him that his elder son Ram Krishna is now carrying on business at Jaipur and he has got agency of electrical goods and has got rented shops in Shastri Nagar Shopping Centre, Jaipur. His another son is also carrying on business of distribution of english films. D.W. 5 Rajiv Krishna is the son of the defendant. He stated that his elder brother Ram Krishna is residing in a rented house situated in Subhash Nagar Colony, Jaipur.
18. In view of the above evidence, the decision of the trial court on this point also does not call for any interference. The alternative accommodation available in this plot of the plaintiff was offered to the defendant but he declined the same as stated hereinabove. Hon'ble Apex Court in Om Parkash v. Bhagwan Das (22), held that comparative hardship would be to the landlord when the tenant denied alternative accommodation offered by the landlord. It is also clear that the financial position of the defendant is good as his sons are carrying on their business. Elder son of the defendant has already got other residential accommodation though on rent. Admittedly the suit premises are in possession of the defendant for the last more than 27 years and mere inconvenience in shifting and payment of higher rent would not cause greater hardship to the tenant in comparison to the landlord. A landlord having six members of family and occupying a flat of two rooms and one drawing room, it cannot be contended that hardship to tenant would be more than the hardship is being faced by the landlord.
19. As far as the point of partial eviction is concerned, although no issue was framed and as such no finding was given by the trial court, but both plaintiff Kashi Prasad and the defendant Purushottam Das admitted in their statements that partial eviction from the suit premises would not serve their purpose. Learned counsel for the parties also did not raise any objection with regard to this point while making their submissions in this appeal. Thus, it is obvious that partial eviction would not serve purpose of either party.
20. The other grounds of eviction are sub-letting, creation of nuisance and inconsistent use of the premises. Section 13 (1) (e) of the Act provides that where the tenant has assigned, sub-let or otherwise parted with the possession of, the whole or any part of the premises without the permission of the landlord, the tenant is liable to in eviction. It is pleaded in para 10 of the plaint that the defendant has sublet a part (passage and Veranda) of Auto-Rikshaw No. NRND 9686 at monthly rent of Rs. 100/-, The defendant denied all these allegations in the written statement.
21. According to learned counsel for the defendant, there is no reliable evidence of sub-letting and D.W. 3 Abdul Razzak categorically denied the fact of sub-letting to him. He referred the evidence of the parties on this issue. He placed reliance upon Dev Kumar (Died) Through LRS. v. Swaran Lata (Smt) and Ors., (23) and Resham Singh v. Raghbir Singh and Anr., (24). It was submitted on behalf of the plaintiff that it is difficult for the landlord to prove sub-letting by direct evidence or whether sub-tenant had paid monthly consideration. Reliance is placed upon Bharat Sales Ltd. v. Life Insurance Corporation of India (25). P.W. 1 Kashi Prasad-plaintiff in his statement supported the contents of the plaint. He further stated that auto-riksha is being parked in the passage of the suit premises and is being used by Abdul Razzak for his residence. He also got exhibited two photographs Ex. 6 and 7 showing the said tempo stationed inside the said premises. In cross-examination, he stated that is was Abdul Razzak who disclosed these facts to him. It was next stated by P.W. 1 that the defendant is a fat man but he pleaded ignorance that on account of fitness the defendant has hired this tempo for this auto-riskshaw is parked in veranda by Abdul Razzak. In cross-examination, he stated that it was Abdul Razzak who told him that he pays monthly rent of Rs. 100/- to the defendant. The defendant Purshottam Das stated before the trial court that he did not sub-let any part of the suit premises to Abdul Razzak. According to his statement, he often travels by autorikshaw driven by Abdul Razzak and for that this autorikshaw is stationed there for some time. It was further stated by him that he parks his autorikshaw there in the night as he goes to temple in the morning and also goes to purchase vegetables etc. and he pays about Rs. 100/- to 120/- p.m. to Shri Abdul Razzak. D.W. 2 sharad and D.W. 3 Abdul Razzak have supported the statement of D.W.I
22. In view of the above evidence, it is difficult to accept this plea of subletting or that the tenant had parted with possession of any part of the suit premises. No such conclusion can be drawn from the photographs Ex. 6 & Ex.7 In Dev Kumar's case (supra), the Hon'ble Apex Court held that to prove sub- letting, parting of the possession by the tenant and exclusive possession of sub-tenant is essential and burden of proof lies on the landlord. Similar view was taken by the Hon'ble Apex Court in Pritam Singh's case (supra). The Hon'ble Apex Court in M/s Bharat Sales Limited's case (supra) held that it is difficult for the landlord to prove the subrletting by direct evidence or whether sub-tenant had paid monthly consideration and the Court has to draw its own inference upon the facts of the case. There is no reliable evidence on the record to prove that D.W. 3 Abdul Razzak is residing in any part of the suit premises and simply on the basis of this fact that Auto-Rikshaw was found stationed there, no such conclusion can and should be drawn that part of the premises was sub-let to Sh. Abdul Razzak. As stated hereinabove, D.W. 3 Abdul Razzak has denied any subletting or his possession over any part sub-letting or his possession over any part of the suit premises. Thus, decision of the learned Trial Judge on this issue cannot be upheld.
23. The relevant provisions of law with regard to nuisance and change in use of the premises are contained is Section 13( 1) (d) of the Act, which provide that where the tenant has created a nuisance or has done any act which is inconsistent with the purpose for which he was admitted to the tenancy of the premises or which is likely to effect adversely and substantially the landlords interest therein.
24. It is pleaded in Para 7 (ka) of the amended plaint that the suit premises were let out only for residential purpose, but the defendant has started commercial activities of share brokerage in the name and style of 'Harsh Investments and Consultants' without permission of the plaintiff. In Para 7 (Kha) of the amended plaint, it is pleaded that a number of persons visit suit premises from morning to evening for purchase and sale of the shares and 'fish market like atmosphere' has been created and further on account of parking of car and tempo by the defendant infront of garage of the plaintiff, it has become impossible for the plaintiff alongwith his family members to reside there and thus the defendant has created a nuisance. In written statement, all these allegations were denied. It was pleaded that the defendant had no concern with Harsh Investments and Consultants and he never undertook any commercial activities in the suit premises and thus questions of change is use of suit premises and Creating nuisance do not arise at all.
25. It was contended and rightly so by counsel for the defendant that only on account of coming and going of some persons in suit premises in connection with share business and mere parking of tempo and car infront of garage of the plaintiff as pleaded in the plaint do not amount to any nuisance. The findings of the learned trial court based on the above facts cannot be affirmed that any such actionable nuisance has been caused. There is no such evidence that any such noise is being created so as to make it difficult for the plaintiff to reside there. In Rafat Ali v. Sugni Bani and Ors. (26), it was held that every inconvenience or noise can not become actionable nuisance and to prove nuisance to be actionable, substantial or significant damage must be proved. In S. Suresh and Ors. v. Isabal Thomas and Anr. (27), it was held that the tenant was running workshop long before people came to reside in the neighborhood and there was no evidence of sound or smell due to painting work conducting in workshop and thus no case of nuisance was made out. The submissions in this regard made by counsel for the landlord that on account of commercial activities, a number of persons visit this place and it creates inconvenience and nuisance to the plaintiff and his family members can not be accepted. In Manohar Lal Mulwani v. The Punjab State Co- operative Bank (28), it was held by Punjab and Haryana High Court that the tenant was carrying on canteen in demised premises and he installed exhaust fan which threw smell and smoke and it amounts t nuisance. In Hiralal and Ors. v. Sanwal Das Jain (29), it was held by M.P. High Court that the tenant encroached upon land which was not let out to him tethering a cow there and this act in itself amounts to nuisance and further the tenant also put up a loom carpet and thus the tenant was guilty of nuisance. But the facts relating to nuisance in the instant case are not such to hold that any such nuisance was created to afford a ground of eviction. The findings of the trial court on the issue of nuisance are not based on any evidence. In the instant case, there is no such evidence that there is any noise or sound which constantly cause inconvenience to the plaintiff and his family members and no substantial or significant damage has been proved by the plaintiff.
26. Last ground of eviction is that of change is use of suit premises. As pointed out earlier, the landlord has to plead and prove that the tenant has done any act which is inconsistent with the purpose for which he was admitted to the tenancy of the premises. Admittedly, the suit premises were let out for residential purpose. It is the case of the plaintiff that the defendant has started commercial activities of share brokerage and this use is inconsistent with the residential purpose. Learned counsel for the defendant submitted that there is no oral as well as documentary evidence to prove the said change in the use of the premises. According to learned counsel, there is no evidence to prove that the sign boards were affixed by or on behalf of the defendant and thus mere photographs of the sign boards are not sufficient to hold that the defendant has changed the use of the premises. It was also submitted than Ex. 8 & 9 both telephone bills, Ex. 10 bill said to be issued in the name of Pinkcity by M/s Harsh Investments and Consultants and other bills Ex. 11 & 13 have not been proved at all. According to him, there is no evidence that these bills were issued on behalf of M/s Harsh Investments and Consultants as a single person has not been examined to state that he purchased or self shares through this firm. It was also submitted that not a single photograph of any person visiting this house for any commercial transaction has been filed. Reliance is placed upon Atul Castings Ltd. v. Bawa Gurvachan Singh, (30), wherein it was held that the landlord must plead and then establish unauthorized change of user by proper evidence and the tenant cannot be expected to lead negative evidence to prove that there was no change of user. Another judgment relied upon is Panchu and Ors. v. Jaswant Mal Sand and Ors. (31), wherein it was held that in suit premises for residence, installation of a 'Gota Machine" only in corner of one room does not amount to change in user. Learned counsel for the plaintiff submitted that there is no reason to interfere with the finding of the trial court. In Hiralal's case (supra) Madhya Pradesh High Court held that where tenant installs one loom for manufacturing and sale of carpets in a residential house, it is both nuisance and change in user and the tenant is liable to eviction.
27. On careful consideration of the above submissions in the light of the evidence available on the record and the judgments cited hereinabove, I find no ground to interfere with the decision of the trial court on this point. P.W.I Kashi Prasad stated that the defendant is carrying on share business in the name and style of M/s Harsh Investments and Consultants in the suit premises and has got two telephone connections. It was also stated by him that Ex. 1 & Ex. 2 are photographs of sign-boards of M/s Harsh Investments and Consultants displayed on the suit premises. It was also stated by him that Ex. 10 bill in the name, of Pinkcity issued by this firm is in the name of M/s Harsh Investments and Consultants. As per the statement of the plaintiff, Ex. 11 and Ex. 13 bills in the name of M/s Harsh Investments and Consultants are in the hand writing of D.W. 5 Rajiv Krishan who is son of the defendant and both the bills carry address of the suit premises and telephone number of the defendant and Ex. 12 is an envelope in the name of M/s Harsh Investments and Consultants issued by one Sh. P.N. Malpani. It is correct that no such evidence has been produced on behalf of the landlord that they saw the defendant affixing the sign boards and further no person has been examined to say that he purchased or sold shares through M/s Harsh Investments and Consultants but only on this ground, the oral as well as documentary evidence produced by the landlord cannot be discarded and particularly in view of the statement of the defendant himself who stated before the trial court that he does not remember as to whether share business in the name of M/s Harsh Investments and Consultants is being carried on in the suit premises. He further stated that he has no concern with such firm. The above statement of the defendant himself goes a long way to support the case of the plaintiff on this point, otherwise the defendant should have categorically denied that any such business activities are going on in the suit premises. He further admitted that Harsh is his grand-son and in crossexamination he repeated the earlier statement that he has no concern either with Pinkcity or with M/s Harsh Investments and Consultants. It is important to say that D.W. 5 Rajiv Krishna son of the defendant no where stated that Ex. 11 & Ex. 13 bills are not in his hand writing while it was the case of the plaintiff that these two bills are in the hand writing of Rajiv Krishna. In view of such positive evidence, there is no ground to interfere with the decision of the trial court on this issue.
28. In the result, this appeal fails and is hereby dismissed with costs.