Skip to content


C. Colaco Vs. Urban D'Silva (08.06.1970 - KARHC) - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 1041 of 1968
Judge
Reported inAIR1970Kant297; AIR1970Mys297; (1970)2MysLJ50
ActsTransfer of Property Act, 1882 - Sections 50 and 108; Mysore Rent Control Act, 1961 - Sections 21 and 21(1)
AppellantC. Colaco
RespondentUrban D'Silva
Appellant AdvocateP. Ganapathy Bhat, Adv.
Respondent AdvocateK. Balakrishna Rao, Adv.
Excerpt:
.....of the single judge is justified. - he argues that the petitioner has clearly made out contravention of clause (o) of section 108 of the transfer of property act and undoubtedly the premises have been used for a purpose other than that for which it was leased......has been a nuisance or annoyance to the neighbours. if really, the respondent was carrying on the work of tailoring late in the night and it was disturbing the petitioner and the neighbours, one would have expected petitioner to mention it specifically in the quit notice issued by her dated 25th april, 1966. though some of the witnesses examined on behalf of the petitioner have stated that they could not get sleep because he was carrying on the work late in the night, the evidence discloses that they are interested witnesses and much weigh cannot be attached to their evidence. i agree with the learned district judge, that it is not possible to accept the contention that the sound of a sewing machine constitutes by itself a nuisance. the learned district judge is right in coming to the.....
Judgment:

M. Santhosh, J.

1. The petitioner before this Court is the landlord. Petitioner filed a petition under Section 21 (1) (b), (c) and (d) of the Mysore Rent Control Act of 1961 (hereinafter referred to as the Act) against the respondent-tenant and prayed that because the tenant had contravened said provisions, the tenant is liable to be evicted from the saidpremises. The trial Court held that the petitioner has made out the contravention of the provisions of Sub-clauses (b) and (d) of Section 21 (1) of the Act and passed an order of eviction. The appeal filed by the tenant was allowed by the learned District Judge of South Kanara. The learned District Judge held that the petitioner has not made out the contravention of provisions of Sub-clause, (b) and (d) of Section 21 (1) and allowed the appeal. In this revision petition, the petitioner challenges the said order passed by the learned District Judge.

2. Shri Ganapathy Bhat, learned Counsel appearing on behalf of the petitioner has contended that the learned District Judge has not considered the evidence of all the witnesses examined on behalf of the petitioner. It is also stressed that the learned District Judge had not adverted to the admissions made by the respondent and his witnesses. If the evidence of the petitioner's witnesses and the admissions made by the respondent are taken into consideration, he submits, there cannot be any doubt that the respondent was carrying on tailoring business in the premises let out to him for residential purposes. He argues that the petitioner has clearly made out contravention of Clause (o) of Section 108 of the Transfer of Property Act and undoubtedly the premises have been used for a purpose other than that for which it was leased. It is also contended, if tailoring work is carried on in a residential premises late in the night it will cause nuisance to the neighbours and the petitioner had also made out a case under Section 21 (1) (d) of the Act. Shri Ganapathy Bhat has relied on : (1959)2MLJ240 in support of his contentions.

3. Shri Balakrishna Rao, learned counsel appearing on behalf of the respondent has supported the order passed by the learned District Judge. He has stressed the fact that in the quit notice (Ex. A.1) given by the petitioner dated 25th April, 1966, the petitioner has nowhere referred to the respondent carrying on tailoring business in the said premises nor had the petitioner referred to the nuisance caused by the respondent when carrying on tailoring business in his residential premises. This is an important circumstance to be borne in mind in judging evidence let in by the petitioner and the lower appellate court has considered this important factor when deciding the points at issue. It is also argued by the learned counsel for the respondent that if in a premises let out to the respondent, for residence a portion of that premises is used for carrying on business, it will not violate the provisions of Clause (o) of Section 108 of the Transfer of Property Act. The learned District Judge has accepted the version of the respondent that the respondent had also been carrying on the work of a tailor in his residence for a number of years. The learned counsel has strongly relied on : (1949)1MLJ74 in support of his said contention. It is also contended that quit notice should have been issued to the respondent bringing to his knowledge the alleged breach, as the case of the petitioner was that there was a breach of contract under Section 108, Sub-clause (o) of the Transfer of Property Act. It is argued that it is obligatory to bring to the knowledge of the other party the breach committed before the petitioner-landlord claims reentry. It is contended that the lower appellate court has considered all the material evidence in the case. The lower appellate court did not consider P. W. 5's evidence as it was not material. This non-consideration of P. W.'s evidence does not in any way cause injustice to the parties. It is also argued that it is open to this court under Section 50 of the Act to go into the entire evidence and arrive at its own conclusion. In support of this proposition reliance is placed on 1969 (1) SCWR 1142. It is urged that the conclusions arrived at by the appellate court are correct, and no case is made out calling for interference in revision with orders passed by the learned District Judge.

4. The important question for consideration in this case is, if in a premises leased out for residential purposes to a professional man, the said person carries on some professional work in his residence, whether he will be violating Sub-clause (o) of Section 108. In Jugraj Jain v. Ambikapathi Pillai : (1959)2MLJ240 this question has been considered by the Madras High Court. It has been laid down in the said decision as follows:--

'Even though a house is taken for purely residential purposes, some occupation and profit-making activities by the resident therein, in a small portion unostentatiously and without running a shop or causing any nuisance, are inevitable and permissible in these days of complex civilization.'

At page 242, the court observed as follows:--

'The third contention of Mr. Inamdar wasthat even regarding the premises let out forpurely residential purposes, a reasonable portion could be used for occupational and profit-making purposes provided there was noconversion of the residential premises to non-residential premises, and no nuisance wascaused, and it is unconstructive and quiet affairnot involving the running of a shop or thegathering of crowds. As laid down by mein Krishna Nair v. Valliammal approved by aFull Bench of this Court in : (1949)1MLJ74 a premisesmust be deemed to be taken and used for'residential purposes' though a portion of thepremises may be used for making appealswhen people are not sleeping there and usedfor sleeping purposes when appeals are notmade there.'

In the said decision it has been pointed out:

'a lawyer may advise his clients in a room of his house; a doctor may give consultation to his clients in a room of his house; an astrologer may give his predictions to his clients in a room of his house; a barber may have his select and urgent clients in a room of his house; a papadam maker can make papadam in a room of his house; provided the portions so used form only a fraction of the entire premises and does not alter the nature of the premises from residential to non-residential purpose.'

5. Shri Balakrishna Rao has also strongly relied on a decision of the English Court Vickery v. Martin, (1944) 2 All ER 167. In the said decision the observations made by Lord Greene, M. R., in Hicks v. Snook, (1928) 93 JP 55 is quoted and it is to this effect:

'In that case the Court of Appeal held that as he was dwelling in the house and had a right to dwell in the house, the house was a dwelling-house, and the fact that besides being a dwelling house part of it was used for business premises did not prevent it being a dwelling house to which the Act applied.'

In 1944-2 All ER 167 the tenant had taken the premises for residential purpose but she made use of a portion of the said residential house as a sort of boarding house taking in paying guests. At page 170, His Lordship has observed as follows:--

'Here, as I have said, this house is unquestionably in my opinion a dwelling house. On the facts, it was impossible to hold otherwise. It was a house in which this lady lives. She had the exclusive part use of it. It is her home. She has her husband to come and live there when he is available, and her children, and it is hers exclusively subject to such licences as she may from time to time grant to such persons as come as lodgers, or guests, in the house. Subject to that ....... it is her home andher house, and there she lives. If the judge's judgment is to he read as saying this is not a dwelling house then, in my opinion, there was no justification on the evidence for so holding'.

6. I will now examine the evidence in the instant case. P. W. 2 examined on behalf of the petitioner has stated that the respondent is a tailor and the respondent is doing tailoring work for the last six months inside his house itself. Some of his customers come to his house. P. W. 3 has also similarly stated that the respondent was doing tailoring work in his house since about seven months. He has also stated that, respondent is getting customers to his house. P. W. 5 has also stated that the respondent was doing tailoring work in his house since eight months. The respondent does his tailoring work during night times and he (P. W. 5.) does not get sleep due to noise caused by the work. Nowhere the witnesses have stated that the respondent has converted the house into a tailoring shop. There is no evidence to show that the respondent had put up any board in the house not do the witnesses say that the respondent was carrying on the profession of tailoring in this house. It is no doubt true that the teamed District Judge has not made any specific reference to the evidence of P. W. 5. But as pointed out by me, the evidence of (his witness is similar to that of the other witnesses examined on behalf of the petitioner SO far as this question is concerned, and all that they have stated is that the respondent was doing tailoring work in his house.

7. The ease of the respondent is that for the past 20 years since he has been residing in the said premises, he has been doing some tailoring work in his 'house during his spare time. In his counter Stated, even when he was carrying on tailoring work in his shop, he was having a machine in his house to enable him to do some tailoring work in his house also. He has stated for the last 18 years lie had been doing so in the said premises, to the full knowledge of the landlord and other neighbours. In his evidence also, he has staled that he had been carrying on tailoring work in his house for a number of years. He has also stated that he has closed the shop in 1966 at Pintos Gate as his eye sight was failing he has stated that he was not doing tailoring work in his house but his son does it from 7 a.m. to 8 a.m. only. It is no doubt true, as pointed out by Shri Ganapathy that, that in cross-examination, respondent has stated that all his customers come to Ins house after he has closed the shop. But in the very next sentence he has stated that his customers were coming to his house oven when he had the shop. The two witnesses examined on behalf of the respondent. R. W. 1 and R. W. 2, have also stated that respondent has been doing tailoring work in his house for about 20 years.

8. It is clear from the evidence referred ito above, the respondent was doing tailoring work in his house in his spare time. The evidence discloses that he has been doing so for about 18 to 20 years. There is no evidence before the court to show that the respondent had shifted his shop after the closure of his shop at Pintos Gate to his house, and was carrying on the tailoring business in his residential house. As already stated, no witness has staled that the respondent has put up a board in his residential house, or made any structural alterations. From what has been stated above, it is clear that the principle laid down in the two Madras decisions referred to above applies to the facts of the instant ease. Even though a house is taken for residential purpose, it does not prevent the person from carrying on his profession in the said premises during his spare time as has been pointed out by Madras High Court. Simply because a lawyer meets his clients in his house and transacts some legal work, or a doctor sees some patients in his house, a residential house is not converted into a non-residential one. It is also to be borne in mind that it is not disputed that the respondent and his family members were residing in the said premises. The fact that they were incidentally carrying on tailoring work in the house does not amount to conversion of a residential premises into a non-residential one. The learned District Judge, after discussing the evidence has rightly come to the conclusion that in his opinion, the ground of user for purposes, other than that for which it has been leased out, is not made out and the provisions of Clause (o) of Section 108, of Transfer of Property Act, have not been violated in the instant case.

9. The next question for consideration is, whether there has been contravention of Sub-clause (d) of Section 21 of the Act. It may at once be mentioned that there is absolutely no mention in the quit notice issued by the petitioner that the carrying on of the tailoring business has been a nuisance or annoyance to the neighbours. If really, the respondent was carrying on the work of tailoring late in the night and it was disturbing the petitioner and the neighbours, one would have expected petitioner to mention it specifically in the quit notice issued by her dated 25th April, 1966. Though some of the witnesses examined on behalf of the petitioner have stated that they could not get sleep because he was carrying on the work late in the night, the evidence discloses that they are interested witnesses and much weigh cannot be attached to their evidence. I agree with the learned District Judge, that it is not possible to accept the contention that the sound of a sewing machine constitutes by itself a nuisance. The learned District Judge is right in coming to the conclusion that the petitioner has not made out that the respondent had contravened provisions of Sub-clause (d) of Section 21 of the Act.

10. In the result, there is no merit in this revision petition and the same is dismissed with costs.

11. Petition dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //