1. This is a Revision Petition preferred by the petitioners (owners) against the order of the First Additional District Judge, Bangalore, in H.R.C. Appeal No. 37/54, reversing that of the learned First Munsiff and House Rent Controller, Bangalore, in H. R. C. No. 733/53, directing the eviction of the Respondent from the schedule premises.
2. The facts that have given rise to this petition are briefly as under:
3. Petitioners 1 and 2 are husband and wife respectively and they are owners of a house bearing Municipal No. 15, situated in Kalappa Block in Basavangudi, Bangalore. The house consists of two portions--one ground floor and another upstairs. The respondent-defendant is a tenant in the downstairs and the petitioners are in occupation of the upstairs. The petitioners applied under Section 8(2)(vi) of the Mysore House Rent and Accommodation Control Act, 1951 to the First Munsiff and House Rent and Accommodation Controller for eviction of the respondent on the ground that the space in the upstairs was not sufficient for the growing needs of their family, that as a result of want of accommodation they arc put to much hardship, that the 1st petitioner's aged mother, widowed sister, brothers and their children, who have to stay with the petitioners, have been compelled to stay elsewhere on account of shortage of accommodation, that therefore the Ground floor also is needed for their bona fide use, that the 2nd petitioner is a woman of poor health and of delicate condition, that any disturbance in the downstairs impairs her mental peace and bodily condition, that in spite of repeated requests, the respondent has failed to vacate the premises and that his eviction should be ordered.
4. The respondent opposed the application on the ground that the upstairs was sufficient for the petitioners' bona fide use, that it is not true that the respondent has been responsible for any disturbance, that there are no bona fides in the application, that it has been filed just to harass him, that there was no valid notice to quit and that the application was liable to be dismissed.
5. Out of the two grounds urged by the petitioners, the learned Munsiff and House Rent Accommodation Controller rejected the contention of the petitioners holding that the relations mentioned in para. 3 of the petition could not be deemed to be members of the petitioners' family living with him and that the ground floor was not required for petitioners' bona fide use, He, however, upheld the contention of the petitioners that the 2nd petitioner was of a poor health, that the noise and disturbance created by the respondent in the ground floor was likely to upset her health and her mental condition and that the ground floor was necessary for the petitioners to enable the 2nd petitioner to lead a peaceful life and accordingly he ordered the eviction of the respondent from the schedule premises. The learned First Addl. District Judge reversed this order of the learned Munsiff holding that the respondent was not guilty of such act or conduct as amounted to annoyance or nuisance to the petitioners. As against that order this revision petition is filed.
6. It appears to me that the order of the lower appellate court cannot be sustained. As pointed out already, two grounds have been urged for the eviction of the respondent from the schedule premises, first being that the 1st petitioner's mother, widowed sister, brothers and their children who want to live with the petitioners have been living elsewhere for want of accommodation in the upstairs of the schedule premises and that the ground-floor is also necessary for the bona fide use of the petitioners' family. The learned Munsiff has held that the 1st petitioner's mother, his widowed sister, brothers and their children cannot bo said to be the members of the petitioners' family. I am of opinion that this is an incorrect view. It is strange that the learned District Judge has not referred to this point in the course of his order. From a perusal of the amended Section 2 of the Mysore House Rent and Accommodation Control (Amendment) Act, 1954, it is seen that 'member of his family' appearing in C'. 6(a) when used with reference to a landlord means
'his son or daughter or father or mother and where the landlord is a member of a joint Hindu family also his undivided brother or such brother's widow who has not remarried.'
The allegation made in the petition is that the 1st petitioner's mother, brothers and their children want to come and live with the petitioners. The mother and undivided brothers must be deemed to be the members of the family of the 1st petitioner. It was contended that, there is nothing to show that 1st Petitioner and his brother living at Hubli are undivided brothers. There is no substance in this 'contention inasmuch as there is a presumption in favour of the petitioners' family being joint, and in the absence of any evidence to rebut that presumption, the family must be considered to be 'joint Therefore the brothers and their children referred to in para. 3 of the petition must be regarded as members of the petitioners' family, and the finding of the learned Munsiff to the contrary cannot be accepted.
7. The further contention that the mother, brothers and their children have been living elsewhere from a sufficiently long time, and that they may continue to do so and that there is no necessity to vacate the groundfloor, is equally devoid of any substance. It is not open to a tenant to dictate terms to a landlord in this way. Mother, brothers and brothers' children are persons who are entitled to live in one and the same place. When a landlord applies for eviction of a tenant on the ground that the premises are required for bona fide use-to accommodate his mother, undivided brothers and their children, his prayer has generally to be granted.
8. The petitioners attacked the finding of the learned Munsiff that the mother, brothers and brothers' children of the 1st petitioner were not members of the petitioners' family, before the learned District Judge, but the learned Judge has not dealt with this matter in the course of his order. It was contended by the respondent that the petitioners did not prefer any cross-objections with respect to that finding in the lower appellate Court and that, therefore, the learned Judge was right in not adverting to that matter. In my opinion, this is not a correct view. Order 41, Rule 22, Civil P. C. inter alia provides that a respondent who has not appealed from any part of the decree'may not only support the decree on any of the grounds decided against him in the Court below but may take any cross-objection to the decree which he could have taken by way of appeal. In other words, what that provision means is that a respondent supporting the decree appealed against on grounds decided against him but not attacking the decree is not required to file cross-objections.
In this connection, I would like to refer to the decision of this Court reported in -- 'Chikkana-gamma v. S. Sivaswamy', 17 Mys LJ 481 (A). Their Lordships have held in that case that where a Court gives a finding on certain issues against a defendant but the suit is dismissed and the plaintiff files an appeal, the defendant need not file cross-objections but may attack such a finding in support of the decree passed in his favour. Therefore it is clear that a defendant against whom a suit is dismissed need not file cross-objections with respect to any finding that may have been against him and that he can attack such a finding in support of a decree in his favour without filing 'any cross-objections. ' Therefore, I am of opinion that the point urged by the learned counsel for the respondent is not tenable. The finding of the learned Munsiff that the premises is not required for accommodating the relations of the 1st petitioner like the mother, brothers and brothers' children and that the said relations cannot be treated as members of petitioner's family cannot be supported.
9. I also do not agree with the finding of the learned First Additional District Judge that there was not sufficient annoyance or nuisance, caused to the petitioners, justifying the eviction of the respondent from the schedule premises. The ground urged on the side of the petitioners is that the 2nd petitioner is ill and that any noise caused in the downstairs upsets her health. That the second petitioner is of indifferent health of a serious type is not disputed. P. W. 1 the husband of the 2nd petitioner and P. W. 2 a relation of the petitioners, Lave sworn to the illness from which the 2nd petitioner has been suffering. The rejection of the evidence of these two witnesses as interested, is not proper. It is, no doubt, true that no medical certificate has been produced in support of the plea if petitioners' illness. It is also true that the neighbours of the petitioners have not been examined. However, in view of the evidence available in the case, it appears to me that neither the medical certificate nor the evidence of any neighbour nor that of the 2nd petitioner herself was necessary. The evidence of P. Ws. 1 and 2 that the 2nd petitioner is ill is fully corroborated by the evidence of the respondent himself. At the outset, it has tc be pointed out that the illness of the 2nd petitioner has not specifically been denied by the respondent in his objection statement. In the course of his evidence also, the respondent admits that the 2nd petitioner has been unwell for sometime and that the 1st petitioner also told him that the 2nd petitioner was ill and that any noise caused would have an adverse effect on her health, Therefore, in view of these admissions, the evidence of the respondent that he is not aware if the noise created in the downstairs would have an untoward effect on the 2nd petitioner's health cannot be taken serious note of. Therefore, it has to be held that the illness of the 2nd petitioner has been established.
10. The finding of the learned District Judge that the respondent has not been guilty of such act or conduct as amounts to annoyance or nuisance to the petitioners has to be negatived. He has referred to Section 8(2)(vi) of the House Rent and Accommodation Control Act and opined that the said section does not contemplate that the noise caused by normal use of the premises would amount to nuisance. I do not think that the said interpretation of the learned Judge is correct. Section 8(2)(vi) runs thus:
'That the tenant or any person residing with the tenant has been guilty of such acts and conduct as amounts to annoyance or nuisance to the adjoining or neighbouring occupiers or has been convicted of using the house or allowing the house to be used for immoral or illegal purposes.'
What is 'annoyance or nuisance' in a particular case may not be annoyance or nuisance in a different case. Each case has to be judged on the facts of the particular case. For a land-lady or landlord who is ailing from some disease, even the noise or disturbance caused by the normal use of the premises may amount to annoyance or nuisance. In the present case, the evidence is conclusive on the point that the 2nd petitioner has been ailing from some disease and that she gets affected by any noise or disturbance caused in the ground-floor occupied by the respondent. The respondent has admitted that some of his friends visit him-during holidays. . Naturally one could expect that on such occasions there would be more than normal disturbance which may affect an ailing person living next-door. Under these circumstances, I am of opinion that the order of the learned District Judge has to be set aside.
11. In the result, this revision petition is allowed, the order of the learned First Additional District Judge is set aside and the order of the learned First Munsiff directing the eviction of the respondent is restored. No costs.
12. Revision petition allowed.