Bombay High Court
D.V. Panse (Major) And Anr. vs Laxminarayan Khar And Anr. on 9 August, 2002
Equivalent citations: 2003(1)BOMCR714, (2003)2BOMLR536, 2002(4)MHLJ873
Author: A.M. Khanwilkar
Bench: A.M. Khanwilkar
JUDGMENT A.M. Khanwilkar, J.
1. These writ petitions, under Article 227 of Constitution of India, take exception to the judgment and decree passed by the 7th Additional District Judge, Pune, dated 30th October 1995 in Civil Appeal No. 53 of 1990. The respondents in Writ Petition No. 786 of 1976 and petitioners in Writ Petition No. 1685 of 1997 are the landlords in respect of the premises forming part of house No. 4, Nehru Marg, Ghorpadi, Pune (hereinafter referred to as the "landlords"). The petitioners in Writ Petition No. 786 of 1996 and respondents in Writ Petition No. 1685 of 1997 were inducted in the suit premises as "tenants" by the former landlord (hereinafter referred to as the "tenants"). The landlords purchased the suit property whereafter the tenancy was attorned in their favour. The landlords filed the subject suit in the Court of Small Causes, Pune being Civil Suit No. 1560 of 1986 for possession of the suit premises on the ground of default, conduct of the tenants amounting to nuisance and annoyance and for reasonable and bona fide requirement. The said suit was contested by the tenants. The trial Court by judgment and decree dated 8th November 1989 was pleased to decree the suit in favour of the landlords. The trial Court answered the issue of nuisance and annoyance in favour of the landlords and directed the tenants to hand over vacant and peaceful possession of the premises to the landlords. The trial Court however negatived the other grounds pressed into service on behalf of the landlords. In the circumstances the tenants preferred an appeal being Civil Appeal No. 53 of 1990 thereby challenging the finding and conclusion in respect of ground of conduct amounting to nuisance and annoyance.
2. Besides the said appeal, on the issue of standard rent, since it was decided against the tenants by the trial Court, the tenants filed revision application in that behalf. However, the Appellate Court was pleased to dismiss the appeal preferred by the tenants being Civil Appeal No. 53 of 1990 and confirmed the view taken by the trial Court on the issue of conduct of the tenants amounting to nuisance and annoyance of the landlords. The Appellate Court has dismissed even the Revision Application on the issue of standard rent preferred by the tenants.
3. Accordingly, Writ Petition No. 786 of 1996 filed by the tenants takes exception to the findings recorded by the two Courts below on the issue of conduct of the tenants amounting to nuisance and annoyance to the landlords; whereas the landlords have filed separate writ petition being writ petition No. 1685 of 1997 thereby challenging the findings and conclusion reached by the Appellate Court in respect of issue of disclaimer of title as well as the view taken by both the Courts in relation of ground of reasonable and bona fide requirement.
Accordingly, both these writ petitions arise out of one suit between the same parties in respect of the suit for possession filed by the landlords against the tenants, therefore, both these petitions can be disposed of together by this common judgment. It is relevant to note that the ground of default is not advisedly put in issue before this Court.
4. Before I advert to the ground of conduct of the tenants amounting to nuisance and annoyance, I would think it appropriate to first deal with the petition filed by the landlords being Writ Petition No. 1685 of 1997 challenging the findings and conclusion in respect of issue of bona fide requirement and also in relation to the disclaimer of the title.
5. Insofar as the question of disclaimer of the title is concerned, the Appellate Court has dealt with the said aspect of the matter and has rightly taken the view by placing reliance on the principle deduced from the decision in Lena Pareira reported in 1997 Mah.L.J. 761 that, since the landlords plaintiffs did not specifically plead the ground of disclaimer of title for eviction, that ground cannot be pressed into service. To my mind, the Appellate Court has rightly negatived that ground of disclaimer of title.
6. Insofar as the question of reasonable and bona fide requirement is concerned, both the Courts below have concurrently found against the landlords. The findings of fact recorded by the two Courts below is that the plea as set up by the landlords for possession on the ground of reasonable and bona fide requirement was unsubstantiated. That finding has been reached on analyzing the relevant materials on record. In exercise of writ jurisdiction under Article 227 of the Constitution of India, it is not possible to overturn the concurrent findings of fact returned by two Courts below in that behalf. The findings of fact so recorded by the two Courts below are based on pleadings and evidence that was available on record and it is not possible to even remotely suggest that there is manifest error much less any error so as to warrant inference by this Court. In the circumstances writ petition filed by the landlords being Writ petition No. 1685 of 1997, is devoid of merits and, the same is, therefore, dismissed.
7. Reverting to the issue of conduct of the tenants amounting to nuisance and annoyance to the landlords, the main argument of Mr. Jahagirdar for the tenants is that, the assertions in the pleadings and the proved facts are inadequate to decisively find that the events pressed into service on behalf of the landlords amounted to nuisance and annoyance. He submits that causing of nuisance and annoyance to any person is a relative term and it would depend on the facts of each case. He therefore, submits that, conduct of both the parties will have to be looked into to ascertain as to whether the conduct of the tenants amounted to causing nuisance or annoyance to the landlords. He further submits that in the matters pertaining to properties the person in occupation, in this case, the tenants, is entitled to assert his right and the fact that he failed to establish his right so asserted cannot be branded as having caused nuisance or annoyance. These are the contentions raised on behalf of petitioners to get over the concurrent findings of facts recorded by the two Courts below on the issue of nuisance and annoyance.
8. I shall first advert of the argument that pleadings were inadequate to return a finding on the issue of nuisance and annoyance against the tenants. Insofar as the issue of nuisance and annoyance is concerned, assertion is made in that behalf in the plaint in para 7 onwards. In para 7, it is stated that the defendants conduct is that of continuous harassment. The landlords have asserted that they purchased the property from the erstwhile owner and that was not liked by the tenants who were in occupation of the suit premises as they wanted to become owner of the property. It is asserted that since aspiration of the defendants was not fulfilled, the tenants adopted a non co-operative and harassing attitude against the landlords and his family members. The plaint also adverts to the various instances which according to the landlords have caused them nuisance and annoyance. In para 9 of the plaint it is asserted that the defendants are always behaving in rude manner and with high handedness with the plaintiffs and his family members as well as the neighbouring occupiers. In para 10 it is averred that defendant and his wife are in habit of filing false police complaints against the plaintiffs and his family members and because of their contacts in the Police Department some arrest warrant was also issued in the name of the defendants' son even though the defendants' son was neither accused nor complainant but a mere witness in some case. This was done only to enable them to make false complaint against the plaintiffs. In para 11 it is alleged that the defendants on 4-4-1982 assaulted the plaintiffs servant. In para 12 it is alleged that the defendant No. 1 erased the name of the plaintiff displayed on the front pillar and painted his own name. Further, in para 13 it is alleged that the defendants always unauthorisedly entered into the garden belonging to the plaintiffs and cut the trees and destroyed the earthen pots and plants. That the defendants has also tampered with the electric connection of the plaintiffs, has taken the electric connection in plaintiffs garden and unauthorisedly used the plaintiffs place and destroyed plants and consumed electricity. In para 14 it is alleged that defendants threatened plaintiffs servants in respect of which police complaint has been filed against him. In para 15 it is alleged that the defendant and his wife constantly abused plaintiff and his family members. It is further alleged that the plaintiffs belongs to very respectable family and the conduct of the defendants and his wife of abusing the family members of the plaintiffs especially female members had caused nuisance and annoyance. In para 16 it is alleged that in various ways the defendant is harassing the plaintiffs and his family members and his act is that of nuisance to the plaintiffs and others hence the suit has been filed. In para 17 it is alleged that the defendants are in possession of 2 rooms, kitchen and sanitary block on the ground floor and have no right whatsoever with regard to any other portion of the suit building and this fact has been conceded by the defendants in their notice dated 16-5-1985. In para 18 it is alleged that the defendants started abusing the plaintiffs and especially plaintiffs' daughters and other lady members. It is further alleged that the defendants have blocked the passage by parking their vehicles in the middle and that the defendants move around in the garden and give threat to the gardeners, and destroy the earthen pots. In para 19 it is further alleged that the defendants also move around in the porch of the plaintiff and damage plaintiffs' and their relatives cars. The plaintiffs had filed criminal complaint in that behalf. In para 20 it is alleged that the defendants use innovative methods to create terror and panic in the suit premises, by moving around illegally and freely in the area which is not in their possession as tenant and also harass the other occupants of the suit building.
9. Broadly, on these assertions, the matter proceeded before the trial Court. Both the parties adduced evidence in support of their respective contentions. The trial Court on analyzing the materials on record has returned finding that defendants were tenants only in respect of two rooms - kitchen and sanitary block. The trial Court has further opined that garden premises towards East and South and the passage towards West East was not let out to the defendants but in spite of that they were moving around in the open portion and obstructing the relatives and family members of the landlords from enjoying that portion of the property with which they had no concern. The trial Court has further opined that defendant nos. 1 and 2 used to abuse the plaintiffs' daughter openly. Besides the defendants also made certain remarks against the plaintiff that he was a big cheater and a liar. According to the trial Court, even this amounted to causing nuisance and annoyance to the plaintiffs. The trial Court has adverted to the other evidence as is seen from the discussion in para 30 of its judgment that the defendants had made false and misleading statements to the Station Commander Pune in letter dated 14-7-1988 (Exh. 163). The trial Court has further observed that sending such false communication contending half truth information was only for the purpose of causing harassment. Accordingly, the trial Court has held that such a letter to an officer of Station Commander Headquarter Pune would amount to causing nuisance and annoyance to the landlords who are the legal owners of the property. It is relevant to note that the landlord is a retired Major. Besides in para 31 of the judgment the trial Court has adverted to several false complaints between the parties and which compelled the landlords to visit the Police station on number of occasions and attend those cases. The trial Court therefore opined that this amounted to causing nuisance and annoyance to the landlords. It is mainly on the abovesaid premise the trial Court answered the issue in favour of the landlords and against the tenants.
10. In appeal the Appellate Court has analyzed the materials on record and reaffirmed the findings recorded by the trial Court. The Appellate Court in paras 33 to 36 of its judgment has dealt with all the relevant aspects of the matter. The Appellate Court has accepted the plea of the landlords that right from beginning the defendant No. 1 was not prepared to accept the plaintiffs as his landlord and that conduct of the tenant amounted to causing annoyance and nuisance to the landlord. The Appellate Court then proceeded to hold that even though the landlords had legally purchased the suit building and had become owners thereof the tenants were not accepting their title. Moreover, the Appellate Court has adverted to the letter Exh. 163 sent by the defendant No. 1 to the Station Commander asking him to withdraw the permission granted in favour of the landlords for purchasing the suit building. That letter contains misleading information. The Appellate Court therefore concluded that taking overall view of the matter the conduct of the defendants amounted to causing nuisance and annoyance to the landlords. The Appellate Court then adverted to the police complaints filed by the defendants against the plaintiffs. It is noted that most of the complaints were non-cognizable and in fact in one of case the plaintiffs were eventually acquitted. What is relevant to note is that the Appellate Court has adverted to the fact that defendant No. 2 has admitted that she had filed not less than "200 complaints" against the plaintiffs and the said admission can be read from Exh. 93, Certified copy of the deposition of the defendant No. 2 in criminal case No. 3640 of 1987. According to the Appellate Court, filing of false complaints obviously required the plaintiffs to frequently visit the police station and that amounted to causing of nuisance and annoyance. The Appellate Court further adverted to the fact that although the defendants were inducted as tenant in respect of 2 rooms kitchen and sanitary block but they were falsely claiming right over the open area, garden and passage and moreover the tenants were obstructing the landlords their family members from peaceful enjoyment of the garden and open passage. The Appellate Court opined that this amounted to causing of nuisance and annoyance to the landlords. The Appellate Court has relied on the decision of this Court where such a plea of the landlord was accepted, as reported in 1984 Bom. R.C. 107 Gulam Hussain v. Laxmidas. The Appellate Court has also adverted to the abuses given by the defendants to the landlords and his family members and held that even that would amount to causing of nuisance and annoyance. In para 36 of the judgment, the Appellate Court has eventually summed up some of the activities of the defendants referred to therein which would clearly amount to nuisance and annoyance to the landlords and for which reason the landlords were entitled to get decree under Section 13(1)(c) of the Bombay Rent Act.
11. To get over the abovesaid concurrent findings of fact, the learned Counsel for the tenants contends that the assertion in the pleadings and the proved facts are inadequate to return finding that such events would cause annoyance or nuisance to the landlords. The learned Counsel for the respondents on the other hand has rightly relied on the decision of the Apex Court Kidar Lall Seal and Anr. v. Hari Lal Seal - to contend that the Court should be loath to throw out a claim on a mere technicality of pleading when the substance of the thing is there and no prejudice is caused to the other side, however clumsily or inartistically the plaint may be worded. To my mind, this decision is applicable to the present case on all fours. No doubt the plaint can be said to be clumsily or inartistically worded, but the fact remains that the substance of the grievance of the landlords has been spelt out in the plaint as to what amounted to causing annoyance and nuisance to him and his family as well as other occupiers. It is therefore not a case of no pleading at all. It is possible to say that the pleading is inarticulate but the fact remains that the material facts relevant to the ground of nuisance and annoyance have been high lighted in the plaint. Some of the circumstances, which according to the landlords has caused nuisance and annoyance, have been spelt out in the plaint. Besides, the trial Court framed the issue and parties went to the trial. During the trial evidence was allowed to be let in relating to the instances which were not specifically pleaded but were surely relevant for answering the issue of the conduct of the defendants amounting to causing of nuisance and annoyance to the landlord. In other words, the ground of nuisance and annoyance has been specifically pleaded but the plaintiffs brought on record some instances to support that ground during the evidence only. If this be so, then the plaintiffs cannot be non-suited on account of vagueness in the pleadings much less on the basis of the argument pressed into service for the first time before this Court in writ jurisdiction (See ).
Understood thus, the contention now raised before this Court about lack of pleadings would be unavailable to the tenants. It is also relevant to note that it is not the grievance of the tenants that the findings of fact recorded by the two Courts below is not supported by any legal evidence on record with reference to the facts which have been found against the defendants. On the other hand it is argued that the proved facts were inadequate to return finding on the subject issue. Whether the proved facts are adequate to answer the issue or not shall be dealt with a little later. Suffice it to hold that there is no force in the grievance made before this Court that the pleadings were inadequate in relation to the ground of nuisance and annoyance as such.
12. The next contention of the learned Counsel for the tenants that the conduct of both the parties will have to be looked into so as to ascertain whether the conduct of the tenant amounted to causing nuisance or annoyance to the landlord, because the issue of nuisance and annoyance is a relative term. That aspect to my mind, will be a pure question of fact. Moreover, this submission clearly overlooks the clinching evidence on record. Further, both the trial Court and the Appellate Court on analyzing the materials on record have found that there is clear evidence on record that the conduct of the tenants amounted to causing nuisance and annoyance to the landlords. That finding of fact cannot be overturned by this Court in exercise of writ jurisdiction. In the circumstances, there would be no occasion for this Court to reappreciate the evidence which is the subtle attempt made in the above submission. Therefore, this submission is devoid of merit.
13. The next submission pressed into service on behalf of the tenants is that, when the matter pertains to a dispute relating to the property, a person who is in possession and occupation of the property is bound to assert his right and if he has done that then no fault can be found with that person and he cannot be branded as having caused nuisance or annoyance to the owner. No doubt this submission seemed to be attractive at the first blush, but in the present case there is overwhelming evidence on record to show the spoilt relationship between landlords and tenants and the extent to which it has precipitated. The tenants no doubt is entitled to assert his right in respect of certain premises which according to him have been let out to him, however, he could do so within the limits which any prudent man is expected of whereas, in this case the evidence would indicate that the tenants have crossed the limits as is noticed by the Courts below. Be that as it may, it is concurrently found that the tenanted premises consisted of only two rooms and a kitchen and sanitary block. However, the tenants were asserting rights in respect of the open garden and passage as well, as if the same was also let out to them. Moreover, it has been found by two Courts below that the tenants obstructed the landlords and his family members from entering upon the open garden and passage. Naturally, there can be no just reason for any tenant to do so. This by itself would constitute an act causing nuisance and annoyance to the landlords. The Appellate Court has rightly relied on the decision in Gulam Hussain's case (supra) to answer the issue against the tenants on this count. In that case the tenant obstructed the landlord from coming on the terrace which was not let out to him. This Court held that such a conduct would result in causing nuisance and annoyance to the landlord. To my mind, this singular circumstance was sufficient to pass decree against the tenant under section 13(1)(c) of the Act.
14. Besides, both the Courts below have also taken note of the letter sent by the tenants to the Station Commander Officer Exh. 163, which provides misleading information and calling upon for recalling of the permission granted in favour of the landlords. No doubt this particular instance was not mentioned in the plaint but surely evidence has come on record in that behalf and that evidence was allowed to be let in without any demur. If that be so, it is too late for the tenants to contend that the said letter cannot be pressed into service by the landlords. Further, what is important to note is that both the Courts below have found that large number of complaints have been filed against the landlords. It will not be necessary for this Court to go into the falsity of the said complaints. The fact that large number of complaints have been filed by the tenants against the landlords is clearly indicative of the ominous relationship of the parties. Such attitude of the tenants would be a matter of concern to the landlords and bound to cause annoyance and nuisance. I have, therefore, no hesitation in taking the view that the abovesaid proved facts would be adequate to sustain the conclusion recorded by two Courts below on the issue of nuisance and annoyance against the tenants. In that case it will not be necessary for me to go into the other aspects, though the Courts below have examined the same and answered it in favour of the landlords.
15. In the circumstances, to my mind, no fault can be found with the conclusion reached by two Courts below on the issue of annoyance and nuisance against the tenants to decree the suit on the ground under Section 13(1)(c) of the Act.
16. Accordingly, even writ petition No. 786 of 1996 filed by the tenants is dismissed but with costs throughout. Rule discharged on both the writ petitions.
Certified copy expedited.