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1 - 5 of 5 (0.17 seconds)Uttamchand vs S.M. Lalwani on 28 August, 1964
11. Mr. Sawant, the learned Advocate appearing for the respondent has invited my attention to the well recognised limitations of the power of this Court under Article 227 of the Constitution. I am not unaware of the same. Indeed, bearing constantly those limitations in mind I am constrained to set aside the finding given by the learned District Judge. Reliance placed by Mr. Sawant on a judgement of the Supreme Court in Uttamchand v. S.M. Lalwani, is, in my opinion, misplaced. In that case it was held that where there is no written lease the Court must apply the test of the dominant intention of the parties and determine the character of the lease by asking itself as to what was the dominant intention of the parties in executing the document. In the present case, the intention of one party atleast has been deposed to by that party itself. The intention of the other party had been deposed to by Madhav Moreshwar. There is no intention of the contrary intention at all. In these circumstances, the finding that the suit premises were not let out for residential and business purpose cannot be sustained. What is worse, the learned District Judge himself in half mind relating to this question. After discussing what he regarded as the relevant evidence, the learned District Judge at the end of paragraph of his judgement has recorded that the purpose of lease at the date of letting was chiefly and predominantly residence. This necessarily means that the lease was not for residence alone. If this is so, it must be held, as the learned trial Judge has held, that the lease was for a composite purpose of residence and business. The contest between the parties on the purpose of the lease a necessitated because if it is found that the lease was one for residential only, then the acquisition of alternate residential accommodation made by the petitioner would have provided a ground for eviction under section 13(1)(i) of the Bombay Rent Act. If the lease is for a composite purpose, then the ground mentioned in section 13(1)(i) would not available to the landlord for evicting the tenant.
S. Kartar Singh vs Chamanlal And Ors. on 14 March, 1969
It has been so held in Kartar Singh v. Chamanlal, .
The Bombay Rents, Hotel and Lodging House Rates Control Act, 1947
Bai Bhicaiji And Ors. vs Perojshaw Jivanji Kerawalla on 30 July, 1915
14. Incidentally it may also be mentioned that the grievance of the respondent against the petitioner on the question of the tethering of the cattle and the storing of the fodder was on the ground that it would cause damage to the property rather than nuisance to the respondents or the adjoining occupiers. I am, therefore, of the opinion that the nature of the nuisance and the persons to whom the nuisance is caused and the quantum of the actionable nuisance have not been proved by the respondent at all. The learned District Judge has not looked at the facts in proper legal focus. As has been pointed out by Justice Beaman in Bai Bhicaiji v. Perojshaw Jivanji Kerawalla, XVII Bom.L.R. 1040, a legal nuisance is rather an evasive shifting and intangible thing hard to be pinned down by a verbal definition, it must always be conditioned by time, place and circumstances. It has been further pointed out by Justice Beaman that in estimating a nuisance complained of, the Court must have regard to the station in life of the plaintiff, and to the locality and the nature of the nuisance complained of. These factors have not been borne in mind at all by the learned District Judge while they had been constantly placed before himself by the learned trial Judge. In my opinion, there is no basis for returning a finding of legal nuisance as mentioned in section 13(1)(c) of the Bombay Rent Act.
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