Bombay High Court
Smt. Manoramabai W/O Vishwanath vs Smt. Pramila Vijay Phansalkar on 18 February, 2011
Author: D. G. Karnik
Bench: D. G. Karnik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE SIDE JURISDICTION
WRIT PETITION NO. 2124 OF 1994
1 Smt. Manoramabai W/o Vishwanath ]
Limaye, age about 76 yrs. occ.Household ]
since deceased through legal heirs and ]
legal representatives : ]
1/A) Shri Arun Vishwanath Limaye, ]
age 60 yrs., R/at. Padmakunj,
ig ]
Bhandarkar Institute Road, Pune-04 ]
]
1/B) Shri Waman Vishwanath Limaye, ]
age 64 years, Occ. Retired, R/at 856, ]
Shivaji Nagar, Bhandarkar Institute Rd.]
Pune-411004. ]
]
]
2 Shri Waman Vishwanath Limaye, ] ... Petitioners.
age about 57 yrs, Occ. service ] (org.defendants-tenants)
1 & 2 residing at 856, Bhandarkar
Institute Road, Shivaji Nagar, Pune-04 ]
V/s.
Smt. Pramila Vijay Phansalkar, ] .... Respondent.
age about 44 yrs. Occ. Advocate, r/at ] (org.Plaintiff-landlady)
856, Bhandarkar Institute Rd., Shivaji ]
Nagar, Pune 411004. ---
Ms. Gauri Godse for the Petitioners..
Mr. V.S.Gokhale for the Respondents.
-----
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WITH
WRIT PETITION NO. 1477 OF 1995
Smt. Pramila Vijay Phansalkar, ] .... Petitioner.
age about 47 yrs. Occ. Advocate, r/at ] (org.Plaintiff-landlady)
856, Shivajinagar, Bhandarkar Institute Rd. ]
Pune -411004.
V/s.
1 Smt. Manoramabai W/o Vishwanath ]
Limaye, age about 77 yrs. occ.Household ]
since deceased through legal heirs and ]
legal representatives : ]
1/A) Shri Waman Vishwanath Limaye, ]
age 65 years, Occ. Retired, R/at 856, ]
Shivaji Nagar, Bhandarkar Institute Rd.]
Pune-411004. ]
1/B) Shri Arun Vishwanath Limaye, ]
age 60 yrs., R/at. Padmakunj, ]
Bhandarkar Institute Road, Pune-04 ]
]
2 Shri Waman Vishwanath Limaye, ] ... Respondents.
age about 59 yrs, Occ. service ] (org.defendants-tenants)
1 & 2 residing at 856, Shivajinagar, ]
Bhandarkar Institute Road, Pune-04 ]
---
Mr. V.S. Gokhale for the Petitioner.
Ms. Gauri Godse for the Respondents.
---
CORAM : D. G. KARNIK, J.
DATE : 18th FEBRUARY, 2011.
ORAL JUDGMENT :
1 These two cross writ petitions arise out of a Judgment and Order dated 19 February, 1994 passed by the 3rd Additional District Judge, Pune, ::: Downloaded on - 09/06/2013 16:52:04 ::: spb/-
3 wp2124-94-1477-95.sxw confirming a decree of eviction passed against the tenant in a suit of the landlady.
2 In view of the fact that these are cross petitions, for the sake of convenience, the parties are hereinafter referred to as "landlady and tenant".
3The landlady filed a suit against the tenant and her son, bearing civil suit no. 327 of 1985, in the Small Causes Court at Pune for eviction interalia on the grounds of damage to the suit property, permanent construction, nuisance and annoyance. The trial court held that the construction made by the tenant did not amount to a permanent construction and also did not cause any loss or damage to the property.
The trial court, however, held that the tenant was guilty of a conduct which amounted to nuisance and annoyance to the landlady and passed a decree for eviction on the ground of nuisance and annoyance. Aggrieved by the decision, tenant and her son filed an appeal being civil appeal no.
701 of 1990 against the decree of eviction passed against her on the ground of nuisance and annoyance. The landlady filed a cross-objection contending that the decree for eviction ought to have been passed also on the ground of permanent construction and damage to the property.
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4 wp2124-94-1477-95.sxw 4 By a judgment and order dated 19 February, 1994, the appellate court confirmed the findings of the trial court on all counts. The appellate court confirmed the findings of the trial court that the alterations made in the suit premises by the tenant were not of a permanent nature and also held that the alterations did not cause any damage to the property so as to entitle the landlady for a decree for eviction under section 13(1)(a) of teh Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short the "Rent Act"). The appellate court also confirmed the finding of the trial court that the tenant had caused nuisance and annoyance to the landlady and confirmed the decree for eviction of the tenant.
5 Aggrieved by the decree for eviction, the tenant and her son have filed writ petition no. 2124 of 1994. Aggrieved by the order of the Appellate Court, refusing to pass a decree on other two grounds of permanent construction and damage to the property, the landlady has filed writ petition no. 1477 of 1995. Both these petitions are being disposed of by this common judgment.
6 The premises at house no. 856, Shivajinagar, Bhandarkar Institute Road, Pune is a two storeyed building. It was constructed by Dr. Sitaram ::: Downloaded on - 09/06/2013 16:52:04 ::: spb/-
5 wp2124-94-1477-95.sxw Vishnu Sathe, the father of the landlady, in the year 1930. The landlady is in occupation of the ground floor while the entire first floor is in occupation of the tenant. The first floor consists of one hall, four rooms and a gallery. There is a Mori in one of the rooms. There is no independent latrine either on the ground floor or on the first floor. However, in one corner of the plot there are common latrines and they were used by the landlady as well as the tenant in common. Flooring of the first floor is made up with wooden planks except at the place of Mori where it is of shahabad stones. Husband of the present tenant had taken the suit premises on rent from the father of the landlady some time in the year 1943 or thereabout. Initially the rent agreed was Rs.75/- per month.
However, on an application made by the tenant, the rent was reduced to Rs.53.70/- per month. During his life time, Dr. Sitaram Sathe, the father of the landlady had filed a suit for eviction of the present tenant's husband but that suit was dismissed and as stated earlier, the rent was reduced from Rs.75/- to Rs.53.70/- per month. Since the decision of that suit, the tenant's husband and after him his widow continue in possession of the suit premises as a statutory tenant.
7 On 12 September, 1984, the tenant had a fall in the compound of the suit building which resulted into a fracture of her left leg. She was ::: Downloaded on - 09/06/2013 16:52:04 ::: spb/-
6 wp2124-94-1477-95.sxw hospitalized and was surgically operated on 18 September 1984 and remained in the hospital till 4 October, 1984. On account of the surgical operation, the tenant was unable to walk down the stairs and she was advised not to use Indian type of latrine which is situated in a corner of the plot on the ground floor. The tenant's son therefore approached the landlady for permission to construct a western style commode in the tenanted premises itself. The landlady replied that she would consider the request after consulting her Architect. The landlady then visited the suit premises alongwith her Architect, who opined that the building was very old and its flooring was of wooden planks and, therefore, a commode cannot be fixed in the suit premises without causing damage to the property. So, the landlady refused the permission for fixing the commode in the suit premises. The tenant thereafter approached the Pune Municipal Corporation and obtained a permission from the Municipal Corporation for fixing the commode in one of the bed rooms sans the permission of the landlady. By its letter dated 7 January, 1985, the Corporation granted the permission for fixing the commode. On 12 January, 1985, the tenant and her son brought building material for making a latrine in one of the bed rooms and fixing of a commode therein. The landlady filed a suit for injunction (R.C.S.No.91/1985) but before the injunction could be obtained, the tenant completed the construction of the latrine and fixing ::: Downloaded on - 09/06/2013 16:52:04 ::: spb/-
7 wp2124-94-1477-95.sxw the commode by 14th January, 1985. As a result, the landlady's suit became infructuous and was withdrawn. Thereafter, the landlady filed the suit bearing suit no. 327 of 1985 from the decision in which the present petition arises for eviction of the tenants. As stated earlier, the trial court decreed the suit. On appeal, the appellate court confirmed the decree on the ground of nuisance and annoyance. Aggrieved tenant is before us.
8It is not disputed that since the time of letting, there was no provision of a latrine/ water closet in the suit premises and a common latrine /water closet was situated in a separate small structure in a corner of the plot on the ground floor. It is not disputed that the tenant had carried out construction of the WC in the suit premises. In the written statement, the tenant pleaded that on account of her fall, which resulted into a fracture to her left leg, she was unable to use Indian type commode and was advised to use a commode type latrine. According to her the commode was fixed in a Mori which already existed on the first floor.
Construction of the WC is thus not disputed. It is also not disputed that for the purpose of construction of the english type commode, a hole was required to be made in the outer wall of the building for the outlet of the commode. A separate chamber was also made in the ground and the discharge from the commode was let in the said chamber which was then ::: Downloaded on - 09/06/2013 16:52:04 ::: spb/-
8 wp2124-94-1477-95.sxw connected to the existing drainage system of the building. Both the courts below have concurrently held that fixing of the commode did not amount to a permanent construction. Counsel for the tenant also submitted that construction of an English type commode is not a permanent construction and in support of his contention, he relied upon following decisions :
1. Suka Ishram Chaudhari vs. Jamnabai Ranchodas Gujarathi & Ors. , AIR 1972 BOMBAY 273.
2. Pitambardas Kalyanji Bakotiya vs. Dattaji Krishnaji, 1981 Mh. L.J. 290,
3. Alisaheb Abdul Latif Mulla vs. Abdul Karim Abdul Rahman Mulla, 1981 Mh.L.J. 734 and
4. Om Prakash vs. Amar Singh , AIR 1987 Supreme Court 617.
9 In the aforesaid cases, the courts have laid down the points and matter to be considered for deciding whether a construction is a permanent construction or that it amounts to an alteration in the suit premises. One of the tests laid down is to consider whether the alleged permanent construction tends to make changes in the accommodation on a permanent basis. A temporary construction made on a temporary basis that does not ordinarily harm a structure of the building and can be easily ::: Downloaded on - 09/06/2013 16:52:04 ::: spb/-
9 wp2124-94-1477-95.sxw removed without causing damage to the building is not regarded as a permanent structure or an offending alteration. Intention of the party is also relevant. Whether the party intended to make a construction of a permanent nature or not is also relevant. Counsel for the tenant calling upon me to follow these tests submitted that on a complaint being made by the landlady , the Municipal Authorities had removed the commode on 24th June, 1985. In the process of removal no damage was caused to the property and the commode could be removed easily without causing any damage to the property. Taking this into consideration the decision of the two courts below that the construction was not a permanent construction, in my opinion, is a possible view and does not require any interference in exercise of an extra ordinary jurisdiction under Article 227 of the Constitution of India.
10 As regards the nuisance and annoyance, it is the case of the landlady that the commode was constructed in the bedroom and not in the Mori. Certified copy of the original plan of the building was produced by the landlady at Exh. 82. A copy of map was also filed by the Pune Municipal Corporation at Exh.79, showing the location of the commode fixed. The map shows that the commode was fixed near the Mori and not in the Mori. The courts below have also recorded a finding that the ::: Downloaded on - 09/06/2013 16:52:04 ::: spb/-
10 wp2124-94-1477-95.sxw commode was fixed in the room (used as a bedroom) and not in the Mori.
The learned counsel for the tenants was unable to point out any contrary material on record. The plans also show that the commode was fixed in a room which is above the kitchen and dining room of the premises in occupation of the landlady on the ground floor. The Court Commissioner was appointed to inspect the premises on an application made by the landlady immediately after filing of the suit. The Court Commissioner visited the site in the presence of the parties and also noted that the commode is fixed in the room just above the dining place of the landlady.
The Commissioner also recorded that there was seepage of water on the ground floor below the commode. The Commissioner poured a bucket of full of water around the place where the commode was fixed and after a few minutes went to the ground floor for inspection of the dining room and noticed that water was leaking in the dining room of the landlady.
The Commissioner's report was admitted in evidence and undoubtedly it is admissible under section 26 Rule 10 (2) of the Code of Civil Procedure.
The landlady examined herself and deposed that because of fixing of the commode and the alterations made at that time, water started leaking and seeping in the kitchen and dining room of the landlady. The presence of leaking water in the kitchen and dining room was a source of nuisance and annoyance. Two courts below have also held that this continuous ::: Downloaded on - 09/06/2013 16:52:04 ::: spb/-
11 wp2124-94-1477-95.sxw seepage of dirty water from and around the commode, in the kitchen and dining room of the landlady, amounts to a nuisance and annoyance. In my view, this is not only a possible but imminently a probable finding of fact and there is no perversity in the finding. The finding of fact concurrently recorded by the two courts below in this regard cannot be interfered with in exercise of the extraordinary jurisdiction under Article 227 of the Constitution of India.
11 Learned counsel for the tenant relied upon the decision of this court in the case of Kashinath Shankar Gambhire vs. Sudha Gopal Patil 2001 (1) Mh.L.J.672 and contended that this seepage of water cannot be regarded as a nuisance. She invited my attention to paragraph 6 of the decision, which reads as follows :
"6. The nuisance for which an action would lie under section 13(1)(c) is incapable of any legal definition. Nuisance ordinarily means that which annoys or hurts or that which is offensive. It includes any act, omission or conduct which causes or is likely to cause inconvenience, hurt, damage or which may interfere with the enjoyment of the life or property. Anything done which unwarrantly affects the rights of others, endangers life or health, gives offence to the senses, violates the law of decency or ::: Downloaded on - 09/06/2013 16:52:04 ::: spb/-
12 wp2124-94-1477-95.sxw obstructs the comfortable and reasonable use of property amounts to nuisance. The question whether a particular act, omission or thing is nuisance or annoyance actionable in law depends on surrounding circumstances. The alleged act or omission, the mode of committing it and the consequences flowing therefrom, amount to nuisance or not all times would be the question dependent on facts and circumstances of the case. However, one thing is certain that in order to attract the ground of eviction under section 13(1)(c) invariably it needs to be satisfied that the alleged nuisance is of gross and unusual character, frequent and persistent and that it would not be possible for the affected person or persons to lead normal life and it is such that one cannot ordinarily expect in household. Initiating legal process by filing suits or defending the litigation by a party cannot amount to a nuisance or annoyance, a ground for eviction contemplated under section 13(1)(c)."
In my view the decision does not in any way support the case of the tenant.
As held in the aforesaid decision, actionable nuisance under section 13(1)
(c) is incapable of a perfect legal definition. Nuisance, ordinarily, means an act which annoys or hurts or that which is offensive. Nuisance actionable under section 13(1)(c) includes any act, omission or conduct which causes or likely to cause inconvenience, hurt, damage or which may ::: Downloaded on - 09/06/2013 16:52:04 ::: spb/-
13 wp2124-94-1477-95.sxw interfere with the enjoyment of the life or property. Anything which unwarrantly affects the rights of the landlady or other occupants or endangers life or health, gives offence to the senses, violates the law of decency or obstructs the comfortable and reasonable use of property amounts to actionable nuisance. Whether a particular act, omission or conduct is such as would amount to nuisance is required to be decided by common sense and the sense of a prudent and reasonable man living in the society and not according to any fanciful or imaginary concepts of decency or behaviour affecting rights of others or endangering their life or health. In a metropolitan city like Pune people have certain notions of life and manner of living. An elderly landlady spending most of her time at home is facing an offensive discharge or leakage from water closet or commode into her kitchen and dining room in her premises immediately below, would certainly consider it to be an offence to the senses and violative the concept of decency and cleanliness. A passive discharge in a latrine below not caused on account of any act or omission on the part of the tenants has to be distinguished from an active discharge resulting from the act of the tenant such as making of a new or opening of a new latrine and water closet right above the kitchen and the dining room of the landlady or other occupants.
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14 wp2124-94-1477-95.sxw 12 So considered, the finding of nuisance and annoyance recorded by the two courts below is unimpeachable. Consequently, there is no merit in either of the writ petitions. Both the writ petitions are accordingly dismissed. Rule in both the petitions is discharged with no orders as to costs.
13 After this decision was pronounced in the open court, the learned counsel for the tenant prays that the stay for execution of the decree which was granted by the court earlier, be continued for some time to enable the petitioner to take appropriate steps. It is accordingly directed that the interim order of stay to the execution of the decree granted by this court earlier shall remain in force for a period of four weeks from today.
[D.G. KARNIK, J.] .....
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