1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.730 OF 1992 Smt.Laxmibai Sitara Bandagale since deceased by her heirs; 1A) Mr.Suresh Sitaram Bandagale, 1B) Mr.Prabhakar Sitaram Bandagale Above are residing at Mandar, Ground floor, Shivaji Nagar, B Cabin, Naupada, Thane. 1C) Smt.Ratnaprabha Suresh Thage residing at Dmanic Villa, Pipe Line Road, Vijaynagar, Hindlaga, Belgaum 681 108. ..Petitioners. V/s. Shri Pandharinath Vyankat Patil, Adult, Occupation-Advocate, residing at Mandar Shivaji Nagar, B-Cabin, Naupada, Thane. ..Respondent. Ms.V.S.Mhaispurkar i/b. Ms.Poornima Kantharia for petitioners. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : AUGUST 14, 2008. DATE : AUGUST 14, 2008. DATE : AUGUST 14, 2008. P.C. : P.C. : P.C. : 1. This Petition under Article 227 of the Constitution of India takes exception to the Judgment and Order passed by the VIIIth Additional District and Assistant Sessions Judge, Thane dated 29th November, 1991 in Civil Appeal No.160 of 1991 which in turn confirms the decree of eviction passed against the Petitioner dated 16th April, 1991 in 2 Regular Civil Suit No.247 of 1987 on the ground that Petitioner/tenant caused nuisance and annoyance to the Landlord attracting provisions of Section 108(c) of the Transfer of Property Act read with Section 13(1)(a) and 13(1)(c) of the Bombay Rents, Hotels and Lodging House Rates Control Act, 1947. 2. The premises in question admeasures about 14 ft. x 10 ft. situated on the ground floor of the suit building. The Respondent is admittedly the landlord in respect of the said premises. The Respondent/landlord instituted suit for eviction against the Petitioner/defendant bearing Regular Civil Suit No.247 of 1987 in the Court of IIIrd Joint Civil Judge, Senior Division, at Thane interalia on the ground available under section 13(1)(c) of the Act. The landlord alleged that the tenant/Petitioner had locked the common latrine which caused nuisance and annoyance to the landlord by depriving the landlord and his visitors to use the same though it was a common latrine facility. The Respondent/landlord further alleged that the Petitioner/defendant had collected bricks and stones for washing utensils near the water tank outside the premises on the water tank and using long string on the water tank for drying the clothes, as a result of 3 which water from the clothes would contaminate the water in the water tank beneath; that the Defendants had planted trees in the open space of the property of the landlord without his consent in writing; that the tenant/defendant heated water in the open premises which emanated smoke and caused nuisance to the Plaintiffs and other tenants; the Defenants/tenant’s son parked his taxi in front of the main gate of the building and also washed the same near the compound. Broadly, on these allegations eviction of tenant was pressed by the landlord. The trial Court after considering the evidence of the Plaintiff and his witness P.W.2, as also documentary evidence such as photograph relied by the Plaintiff accepted the claim of the Plaintiff that the tenant had locked the common latrine for a short duration which was opened only after the landlord registered complaint with the local police station. The trial Court has also found as of fact that the defendant/tenant had collected bricks and stones for washing utensils near the water tank and tied string outside the premises on the water tank using the same for drying clothes. The trial Court has also found as of fact that the defendant/tenant had planted trees in the open space of the property without consent of the landlord. Consistent with the 4 said finding, the trial Court decreed the suit against the Petitioner and ordered handing over the possession of the suit premises to the Respondent/landlord. 3. The Petitioner thereafter, carried the matter in appeal. The Appellate Court once again reappreiciated the evidence on record and has confirmed the decree of eviction however, limited to the ground under section 13(1)(c) of the Act. According to the Appellate Court, the Plaintiff has established the fact that the latrine in the compound was common latrine to be used not only by the defendant but other tenants as also the landlord for himself as well as his visitors in the office which was on the ground floor. The appellate Court has also confirmed the finding of fact that the defendant/tenant had locked the said common latrine and deprived the landlord from using the same for short duration. The same was reopened only after the landlord had registered complaint with the local police station. On this finding, even the Appellate Court proceeded to hold that this act of the tenant constituted causing nuisance and annoyance to the plaintiff and thereby attracting section 13(1)(c) of the Act. The Appellate Court has also confirmed the 5 finding of fact recorded by the trial Court that the defendant/tenant was using place near the water tank for drying clothes, cleaning utensils and throwing waste water collected at the time of cleaning utensils near the said tank, planting trees nearby; and discharging waste water there which resulted in creating unhygienic condition in and around the suit premises, which obviously caused annoyance to the landlord and other occupants. Even for that reason the decree of eviction under section 13(1)(c) of the Act has been confirmed by the Appellate Court. 4. Having considered the argument canvassed by the Counsel for the Petitioner and going through the deposition of the Plaintiffs produced before me, I have no hesitation in taking the view that the finding of fact recorded by the two Courts below that the latrine was used as common latrine by the defendant as well as other tenants in the premises and the Plaintiffs/landlord and his visitors is supported by the evidence on record. That finding will have to be upheld as it is. Similarly the finding recorded by the Courts below that the said common latrine was locked by the Defendant will also have to be upheld as even the said finding is founded on evidence available on record. Once these two 6 findings of facts are upheld and indeed cannot be overturned in exercise of writ jurisdiction under Article 227 of the Constitution of India by taking recourse to reappreciation of the evidence on record, it would necessarily follow that the act of locking the common latrine resulted in deprivation of Plaintiff as well as his visitors even though for a short duration, causing nuisance and annoyance to the landlord and attracted Section 13(1)(c) of the Act. 5. Counsel for the Petitioner is at pains to persuade me that the finding of fact recorded by the two Courts below on this factual matter is perverse. However, it is not possible to accept that contention. In my opinion, the view taken by the two Court below on the aforesaid factual position is supported by the oral evidence including the admission of the Defendant herself. For, the positive case of the Defendant was that the latrine was not common latrine to be used by the Plaintiff or his visitors. That plea has been rejected by the two Courts below with reference to not only the oral evidence of the Plaintiff himself but also P.W.2 who has been found to be independent witness and worthy of reliance. Thus understood, finding of fact and the conclusion reached by the two Courts below 7 referred to above will have to be upheld. 6. In the circumstances, the decree of eviction passed against the Petitioner can be upheld on this singular ground as the landlord has established the case under section 13(1)(c) of the Act against the Petitioner/tenant. It is not necessary to burden this Judgment with other grounds established from the record by the Respondent/landlord. The two Courts below in my opinion, rightly found that the open place in front of the suit premises near the water tank was used by the Petitioner to keep utensils and discharge waste water in the open space. Even this finding of fact is supported not only by the oral evidence but also the photographs produced by the Plaintiff which have been proved in evidence. Even the suggestion of the Defendant in the course of evidence clearly establishes the position that the defendant was in fact cleaning utensil in the open space outside the suit premises and the waste water was discharged in the open space. Even this act of the defendant would certainly cause nuisance and annoyance to the landlord attracting section 13(1)(c) of the Act. 7. Taking any view of the matter, no 8 interference is warranted in the fact situation of the present case. Accordingly, decree of eviction passed by the two Court below is upheld. 8. While parting, I may record that the Counsel for the Petitioners in all fairness pointed out that the Defendant/tenant has already been dispossessed during the execution of the decree. 9. In any case for the reasons already recorded hereinbefore, this Petition is dismissed. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)