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Joseph D'Souza Vs. the State of Mysore and Ors. (29.10.1971 - KARHC) - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 2123 of 1970
Judge
Reported inAIR1972Kant261; AIR1972Mys261; 1974CriLJ212; ILR1973KAR517; (1973)1MysLJ397
ActsMysore Rent Control Act, 1961 - Sections 3, 21, 21(1), 48 and 50
AppellantJoseph D'Souza
RespondentThe State of Mysore and Ors.
Appellant AdvocateG.D. Shirgurkar, Adv. for K.S. Satyamurthi, Adv.
Respondent AdvocateAnnadanayya Puranik, High Court Govt. Pleader
DispositionPetition partly allowed
Excerpt:
.....right from 10.12.1985 till 9.8.1987 -therefore, the claim of the petitioners towards leave encashment benefit is not acceptable. - 2. they have stated that they had not complained to the police at any time. the parties or their counsel or a judge may not like drinks or anybody drinking. as there is no discussion by the appellate judge on the said question, it would be better that the matter be remitted to him for consideration......police at any time. that is all the evidence relating to the proof of nuisance or annoyance. the learned judge has considered that evidence and recorded a finding that by that evidence it is impossible to reach the conclusion that the running of toddy and arrack shops is causing any nuisance to the adjoining or neighbouring occupiers. that finding, in my opinion, does not call for any later reference as it is not shown that it is vitiated either by the non-consideration of any relevant evidence or by the consideration of any irrelevant circumstance. it is impossible to say unless it is proved in a given case that mere running of toddy or arrack shop in a busy locality cause nuisance or annoyance to the adjoining occupiers or neighbours. it is not an illegal trade but one that is.....
Judgment:
ORDER

K. Jagannatha Shetty, J.

1. This is a revision petition under Section 50 of the Mysore Rent Control Act. 1961, shortly called the Act, preferred by the landlord against the order made by the First Addl. District Judge. Bangalore, in H. R. C. A. No. 34 of 1970 by which he reversed the order in H. R. C 1083 of 1967 made by the! Principal First Munsiff, Bangalore.

2. The first respondent is the State of Mysore in whose favour the premises in question were leased by the father of the petitioner in the year 1954, It was a lease for eight years, specifically for running toddy and arrack shops therein. The premises originally was a vacant plot. After the lease, sheds appear to have been constructed for the purpose of running the toddy and arrack shops. After the death of the original lessor, his widow, two sons and a daughter became entitled to the premises. The petitioner who is one of the sons and also the power of attorney holder of the remaining children of the deceased lessor, filed a petition for eviction under Section 21 (1) (d), (e). (h) and (1) of the Act. Before the Munsiff. it was mainly contended that the premises are reasonably and bona fide required by the landlord and he has already entered into an agreement with a third party (P. W. 4) for the construction of a theatre and the running of the toddy and arrack shops in the premises has been causing nuisance or annoyance to the adjoining or neighbouring occupiers of the premises.

3. In support of the case, the petitioner has examined P. Ws. 1 to 5. On behalf of the State of Mysore, one of the clerks in the Excise Department has been examined.

4. On a consideration of the entire evidence, the Munsiff came to the conclusion that the landlord has not proved that the premises are reasonably and bona fide required by him for his personal occupation but he held that the running of toddy and arrack shops is causing nuisance to the neighbouring occupiers of the premises. On that ground, he ordered eviction. It may be stated that the other grounds urged by the petitioner for eviction were rejected.

5. An appeal was preferred on behalf of the State of Mysore before the District Judge. Bangalore. The learned District Judge has allowed the appeal and dismissed the eviction petition.

6. The learned District Judge on the consideration of the evidence held that it was not proved that the running of toddy and arrack shops has been causing nuisance or annoyance to the adjoin-ing or neighbouring occupiers. He further held that the Section 21 (1) (d) of the Act applied only to the residential premises and not to a non-residential premises as the one under consideration. He has not adverted to any other question as the landlord had not preferred cross-objections against the adverse findings given by the Munsiff..

7. The first question for consideration is whether Clause (d) to the proviso to Sub-section (1) of Section 21, applies to non-residential premises.

8. Section 21 (d) of the Act provides :--

'21. Protection of tenants against eviction.-

(1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or other authority in favour of the landlord against the tenant :

Provided that the court may on an application made to it, make an order for the recovery of possession of a premises on one or more of the following grounds only, namely :--

* * * * * (4) that the tenant or anv person residing with the tenant has been guilty of conduct which is a nuisance or annoyance to the adjoining or neighbouring occupiers, or has been convicted of using the premises or allowing the premises to be used for immoral or illegal purposes; or * * * * *

The whole object of the Act is to provide for the control of rents and evictions from buildings, etc., and Section 21 specifically enumerates the grounds which alone will entitle the landlord to evict his tenant from anv premises. Section 3_(a) defines premises. It means -- a building or any land not used for agricultural purposes. Clause (d) is one of the grounds for eviction of a tenant from any premises. It therefore applies to residential, non-residential and any vacant land in the possession of the tenant. It provides that the tenant or any person residing with the tenant would be guilty of conduct if he commits an act which is a nuisance or annoyance to the adjoining or neighbouring occupiers. It means that either the tenant may be guilty of the conduct or any person residing with the tenant may be guilty of such conduct, which is a nuisance or annoyance. The tenant need not reside in the premises itself. The word residing only qualifies the person. Therefore, if a non-residential premises is occupied by the tenant and if he or any other person residing with him is causing nuisance or annoyance to the adjoining orneighbouring occupiers, it would fall squarely within the ambit of the clause. The opinion to the contrary expressed by the learned District Judge is patently erroneous.

9. This takes me to the second question whether the landlord has proved that the tenant or any person residing with the tenant has been guilty of conduct which is a nuisance or annoyance to the neighbouring occupiers.

10. The evidence in the case consists as I have stated above, of P. W. 1 to P. W. 5. P. W. 1 M. Rayappa has stated that in the evening people who come from the tavern come fully drunk and cause nuisance near the church and the women folk are afraid to attend the church in the evinings. There is not much in his examination-in-chief. P. W. 2 is Sampangiramachari who is a neighbouring occupier of the building. His examination-in-chief runs hardly to four lines. He says there is a toddy and arrack tavern near his house. As a result, people get drunk and come near his house and do galata. P. W. 3 is one Abdul Majid. He is stated to be the tenant of the petitioner in one of the neighbouring premises. He says there is a toddy and arrack tavern near his house and that as a result, drunkards and prostitutes assemble there and do galata. His examination-in-chief is also as cryptic as that of P. W. 2. They have stated that they had not complained to the police at any time. That is all the evidence relating to the proof of nuisance or annoyance. The learned Judge has considered that evidence and recorded a finding that by that evidence it is impossible to reach the conclusion that the running of toddy and arrack shops is causing any nuisance to the adjoining or neighbouring occupiers. That finding, in my opinion, does not call for any later reference as it is not shown that it is vitiated either by the non-consideration of any relevant evidence or by the consideration of any irrelevant circumstance. It is impossible to say unless it is proved in a given case that mere running of toddy or arrack shop in a busy locality cause nuisance or annoyance to the adjoining occupiers or neighbours. It is not an illegal trade but one that is regulated by licence. If a man lives in a town or city it is necessary that he should subject himself to a certain extent to the consequences of those operations of trade or business which may be carried on for the benefit or use of the inhabitants of the locality.

11. The burden of proving that the tenant is guilty of conduct which is a nuisance or annoyance is always on the landlord. It cannot be decided by any abstract consideration of the thingitself. The parties or their counsel or a judge may not like drinks or anybody drinking. But a Judge cannot decide upon his individual thoughts or personal opinion. He must consider the evidence before him. and in particular, the circumstances of time, place and the character of annoyance or nuisance, and its impact on the reasonable enjoyment of the adjoining or neighbouring occupiers. In the present case, the evidence produced by the landlord falls short of the required standard of proof.

12. Mr. Shirgurkar, learned counsel for the petitioner, next urged that he was prevented from supporting the order of the Munsiff before the learned District Judge on the ground that he had not preferred any cross-objection against the adverse findings. The judgment of course does not show that the counsel for the petitioner attempted to support the order of the Munsiff on any other ground except the ground under Section 21 (1) (d). But, the learned Judge in the beginning of his judgment has stated thus :--

'The landlord has not preferred any cross-objection. Therefore, for the purposes of this appeal, it is enough if the material allegations on which the ground under Clause (d) mentioned in the petition are mentioned in brief'.

This obviously shows that the learned Judge was under the impression that without a cross-objection by the landlord, he could not urge the adverse grounds in support of the order in his favour. That is wholly an erroneous view. There need not be any cross-objection against an adverse finding. The party has always the liberty to support the order in his favour on any ground before the appellate authority.

13. The learned counsel for the petitioner attempted to urge that the premises in question are reasonably and bona fide required by the landlord. Mr. Puranik, learned High Court Government Pleader for the respondents, submitted that the ground under Section 21 (1) (h) should be deemed to have been abandoned by the landlord since it was not apparently urged before the appellate authority. I do not think that I can accept that contention because it is nowhere found in the judgment of the appellate Judge that the landlord had abandoned the ground under Section 21 (1) (h) of the Act. As there is no discussion by the appellate Judge on the said question, it would be better that the matter be remitted to him for consideration.

14. In the result and for the reasons stated above, this revision petition is partly allowed. The finding of the learned Judge on the question under Sec-tion 21 (1) (dl is confirmed. The learned District Judge is directed to take back the appeal on his file and consider only the question under Section 21 (1) (h) on the evidence on record as to whether the premises are reasonably and bona fide required by the landlord and then dispose of the same in accordance with law. No costs.


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