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.142 OF 1990 WITH CIVIL APPLICATION NO.757 OF 2004 Sou.Sulochana Vasudeo Limaye, since ) deceased by heirs, ) Anant Vasudeo Limaye, ) Residing at 33/1, Erandavana, ) Prabhat Road, Pune. )..Petitioner. V/s. 1. Audyogik Nidhi Paisa Fund ) Registered Trust’s Paisa Fund ) Vastu Bhadar, 366, Narayan Peth, ) Pune- 30 by its Trustees ) ) 2. Dr.Padmanabh G. Tendulkar(deleted) ) ) 3. Shri Madhukar Yeshwant Gharpure ) (deleted) ) ) 4. Shri Vasant Shridhar Vaidya(deleted) ) ) 5. Dr.Arvind Vasudeo Sangamnerkar ) (deleted) ) ) 6. Shri Vishwanath Atmaram Tamhankar ) (deleted) ) ) 7. Dr.Bhalchandra Ganesh Dhadphale ) (deleted) ) ) 8. Shri Madhusudan Dattatraya Barve ) (deleted) ) ) 9. Sudershanlal @ Chachaji Bhansal ) (deleted) ) ) 10.Anil Bhansal(deleted) ) ) 11.Kamalesh Bhansal. ) residing at 366, Narayan Peth, ) Paisa Fund Vastu Bhandar, ) Pune-30. ) ) 12.Shri U.M.Gharpure (deleted) ) 2 ) 13.Shri S.S.Sable(deleted) ) ) 14.Shri A.V.Sangamnerkar(deleted) ) ) 15.Shri H.N.Kelkar ) ) 16. Shri Krishnarao Dhondiba Bhegde, ) President, 1240, Gurwar Peth, ) Talegaon Station, Tal.Maval, ) Dist. Pune. ) ) 17. Shri Keshavrao Tukaram Wadekar, ) Treasurer, Panchwati Colony, ) Talegaon Dabhade, Tal.Maval, ) Dist.Pune. ) ) 18. Shri Deepak Vinod Shah, ) Treasurer, Pratideep, Plot No.7-8, ) Kaloakar Colony, Talegaon Dabhade, ) Tal.Maval, Dist.Pune. ) ) 19. Shri Vasant Krishnaji Bhegde, Member) 296, Shaniwar Peth, Talegaon, ) Talegaon Dabhekar, Tal.Maval, ) Dist. Pune. ) ) 20. Shri Prakash Hazarimald Oswal, ) Member, 919, Somwar Peth, Talegaon ) Dabhade, Tal. Maval, Dist.Pune. ) ) 21. Shri Sudkheder Suresh Kulkarni ) Secretary, Paisa Fund, Glass Works ) Talegaon Dabhade, Tal.Maval, ) Dist. Pune. ) ) 22. Shri Nandkumar Annasaheb Sadar, ) Member, Ganesh Traders, Talegaon ) Station, Tal. Maval, Dist.Pune. )..Respondents. Mr.Tejal Katdare for Petitioner. Mr.Jaydeep Deo i/b. Ms.Suhasini Mutalik for Respondents. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : MARCH 2, 2009. DATE : MARCH 2, 2009. DATE : MARCH 2, 2009. JUDGMENT : JUDGMENT : JUDGMENT : 3 1. This Writ Petition under Article 227 of the Constitution of India takes exception to the Judgment and Decree passed by the 5th Additional District Judge, Pune dated 17th March, 1989 in Civil Appeal No.402 of 1986, thereby rejecting cross-objection filed by the Petitioner/landlady and at the same time, setting aside Judgment and Decree passed by the Trial Court dated 12th March, 1985 in R.C.Suit No.2124 of 1980 and instead dismissing the suit preferred by the Petitioner/landlady for possession of the suit premises. 2. Briefly stated, the suit premises is a shop premises and godown premises out of C.T.S No.366, Narayan Peth, Pune-30 consisting of two stalls with the frontage on Laxmi Road with toilet and three rooms behind the same, which are in the form of tin roof sheds. The monthly rent for the said premises was fixed at Rs.34/- plus other taxes. The Petitioner/landlady instituted suit for possession of the suit premises on several grounds, such as, the tenant has changed the user of the suit premises and thereby committed breach of the agreement of lease; has sublet or transferred the interest and right in the suit premises unauthorisedly in favour of Defendant Nos. 9 to 11; that Defendant Nos. 1 to 4 8(tenants) have erected permanent construction in the suit premises without the consent of the landlady; that tenants have not used the suit premises without reasonable cause for continuous period of six months immediately preceding the date of filing of the suit and lastly that the tenants are causing nuisance and annoyance to the adjoining occupants. Out of the aforesaid grounds, the Trial Court proceeded to decree the suit for possession in favour of the landlady on the ground of non-user for continuous period of over six months preceding the date of institution of suit without any reasonable cause and on the ground of nuisance only. The tenants carried the said decision in appeal before the District Court by way of Civil Appeal No.402 of 1986. At the same time, the landlady questioned the correctness of the finding recorded by the Trial Court on other issues against her. Both Appeal as well as Cross-objections have been dealt with by the Appellate Court together. The same have been disposed of by common Judgment and Decree dated 17th March, 1989, which is impugned in this Petition. 3. The said decision is subject matter of challenge in the present Petition at the instance of the landlady. However, during the course of 5 argument, Counsel for the landlady has confined the argument only with regard to the three grounds for eviction, namely, change of user of the suit premises resulting in breach of agreement of lease, nuisance and annoyance caused by the tenants to the adjoining occupants and last ground of non-user of the suit premises for a continuous period of over six months immediately preceding the date of institution of the suit without any reasonable cause. Both the parties have adduced oral as well as documentary evidence in support of their stand concerning the respective grounds for eviction. I shall deal with the relevant material while considering concerned ground. 4. In the first place, I shall consider whether the finding reached by the Courts below on the issue of change of user of the suit premises in breach of agreement of lease. Both the Courts below have answered this issue against the landlady. In other words, the finding of fact recorded with regard to this ground for eviction is concurrent. The Trial Court has noted that this ground is invoked by the landlady on the assertion that the premises were let out to the tenants only for sale of its articles produced at Talegaon factory, whereas the tenants were dealing with articles manufactured elsewhere, 6 thereby have breached the tenancy condition resulting in change of user. The Trial Court has noticed that admittedly, there was no written agreement between the parties. In the first place, the Trial Court found that the allegations in the plaint in this behalf were very vague. It went on to hold that in fact this case was introduced for the first time during recording of evidence. Moreover, there was no written agreement to prove the fact asserted by the Plaintiff/landlady. It also held that there was no other documentary evidence to substantiate the fact asserted by the Plaintiff/landlady that lease was granted in favour of the Defendant No.1 with such restriction. The Trial Court has found that even oral evidence given by the Plaintiff’s witness does not substantiate this ground for eviction. The Court has found as of fact that there was no such condition attached to the agreement of lease, for which reason question of tenants/Defendants having committed breach thereof did not arise. The Trial Court then found that there was ample evidence that Defendant No.1 was selling the goods that were manufactured in its Talegaon factory and that the goods manufactured in its factory were sent to Firozabad for cutting, grinding and polishing and the finished materials were received back and kept for sale in the suit 7 premises. The Trial Court thus held that at any rate there was no restriction on sale of such articles kept in the suit premises by the tenants/defendants and there was no breach of any agreement in that behalf. The Trial Court has also addressed the issue in the context of the case made out by the Plaintiff that change of user was also on account of Defendant Nos. 10 and 11 residing in the godown. The Trial Court has rejected this claim of the Plaintiff as no legal evidence to substantiate that position, was forthcoming. Accordingly, issue of change of user was negatived by the Trial Court. 5. The Appeal Court has reappreciated the evidence of the rival parties and then after analysing the same, more or less reiterated the findings reached by the Trial Court with regard to the issue under consideration. That can be discerned from the discussion in paragraph-11 to 14 of the impugned Judgment. Even the Appellate Court has found that there was no written agreement imposing any restriction on the tenants that only the articles produced in the factory at Talegaon should be kept for sale in the suit premises. The Appellate Court has also given additional reason that the landlady was also expected to establish the fact that on 8 account of such change of user, that would result in destructive or permanently injurious to the property. The Appellate Court has held that there is absolutely no evidence in this behalf. Suffice it to observe that in the present case, concurrent finding of fact is that the Petitioner/landlady has failed to 9 establish that there was an agreement between the parties that the premises would be used only to sell the articles produced in the factory at Talegaon and for no other purpose. In my opinion, the finding of fact, so reached by the two Courts below on appreciation of evidence on record, is unassailable. Nothing has been brought to my notice which would persuade me to take the view that the finding so reached is either manifestly wrong or perverse. Insofar as the finding of fact so reached by the two Courts below, the same need no interference in exercise of writ jurisdiction. 6. That takes me to the second ground pressed on behalf of the landlady for eviction of the tenants, namely, that the tenant was causing nuisance and annoyance to the adjoining occupants. Insofar as this ground is concerned, twofold allegation was pressed by the landlady. Firstly, the nuisance and annoyance was on account of dumping of goods by the tenant in the passage under the staircase. Secondly, on account of using the suit premises for residing and playing radio loudly. Insofar as using of suit premises for residence is concerned, the Trial Court found that the evidence produced by the Plaintiff/landlady was not sufficient. That plea of 10 the Plaintiff has been rejected. Insofar as the allegation of playing radio loudly, the Trial Court has not specifically dealt with that aspect: but nevertheless, answered the issue in favour of the landlady on the finding that the tenant was dumping the goods below the staircase in the passage, which caused nuisance and annoyance to the occupants. For arriving at that conclusion reliance was placed on the evidence of Plaintiff’s witness, Mr.Sane. In other words, the issue was answered against the tenant only on account of dumping of goods in the passage below the staircase. The Appellate Court however, firstly dealt with the allegations about causing of annoyance due to playing of radio loudly. The Appellate Court found that the premises were situated in market/commercial locality like Laxmi Road. Playing of radio in the night is a common feature in that area. That cannot be the basis to hold that it was causing nuisance and annoyance to the adjoining occupants. With regard to the allegation of dumping of goods in the passage below the staircase, the Appellate Court firstly found that the basis on which the Trial Court proceeded to answer the issue was as per the evidence of Plaintiff’s witness Shri Sane. The Appellate Court however, has discarded the evidence of Plaintiff’s 11 witness Shri Sane on accepting the stand of the tenant that he was an interested witness. In that, the said Sane was using phone of the tenant but after appointment of new manager of the defendant, the free telephone facility which was availed by Mr.Sane was discontinued. Besides, Brother of Mr.Sane had committed theft and he was arrested on the report lodged by one of the executive member of the defendant/tenant. The Appellate Court therefore discarded the evidence of Mr.Sane on this count, as can be discerned from paragraph-19 of the impugned Judgment. It is for that reason, the Appellate Court went on to observe that the evidence of Mr. Sane was of no avail and that there was no other legal evidence to support the claim of the Plaintiff/landlady that on account of storage of goods in the passage below the staircase by the defendants/tenants, it resulted in causing nuisance and annoyance to the adjacent occupants. The only occupant examined by the Plaintiff was Mr.Sane. For that reason, the Appellate Court opined that the finding recorded by the Trial Court on this issue will have to be overturned. 7. The question is whether that view taken by the Appellate Court can be said to be manifestly 12 wrong. The answer is an emphatic No, rather that is the correct approach adopted by the Appellate Court. Once evidence of the sole Plaintiff’s witness on the issue under consideration was to be discarded, by no stretch of imagination the issue can still be answered in favour of the landlady. Besides, the Appellate Court has found favour with the explanation offered by the tenant that the suit premises were situated in business locality where the practice was to keep packages under the staircase during business hours. In other words, the Appellate Court has accepted the stand taken by the defendants that they had kept the goods below the staircase temporarily while in transit. Inasmuch as, after unloading the goods from the trucks at night, which is the only time when entry of trucks is permitted on the Laxmi Road, the articles were kept below the staircase as a temporary measure. In my opinion, no interference is warranted in exercise of writ jurisdiction with regard to the conclusion reached by the Trial Court that the dumping of goods below the staircase even if stands established by the other evidence produced by the Plaintiff there was good justification and in any case no other adjacent occupant has made any grievance regarding nuisance and annoyance caused to them due to such storage of goods below the 13 staircase. Accordingly, finding and conclusion so reached by the Appellate Court will have to be upheld. 8. That takes me to the last ground for eviction pressed into service, of non-user of the suit premises for period of more than six months preceding the date of institution of suit. The Trial Court has answered this issue against the tenant. The basis on which the Trial Court proceeded, is to first rely on the Court Commissioner’s report, which indicated that the suit premises was found vacant. The Trial Court also adverted to the evidence given by the Plaintiff’s witness that the premises were kept unused for more than six months preceding the date of institution of the suit. According to the Plaintiff, the premises were not used without any sufficient cause. The defendants on the other hand, contended that the premises were not in use during the relevant period as the same were under renovation. The Trial Court however, did not accept the said version, instead chose to rely on the Plaintiff’s evidence and Court Commissioner’s report to conclude that the Defendants have failed to prove as to when they started renovation and as to when they completed the same. The Trial Court further held that the 14 defendants failed to produce any evidence in support of their defence and the architect report and the balance sheet produced by the defendants was of no avail. Broadly on this basis, the Trial Court answered the issue of non-user of the suit premises against the tenant. The Appellate Court however, in the first place opined that reliance placed on the Court Commissioner’s report to answer the point in issue was inappropriate. In any case, the Court Commissioner’s report dated 12th September, 1980 in fact, supports the evidence of defendant-Shri Kibe, who has deposed that renovation work had started in June, 1980 and completed in the month of March, 1981. In that, Commissioner’s report indicated that the waste papers were found and flooring was found wet during the visit. The Appellate Court therefore, found that it presupposes that repair work/renovation work was in progress. The fact noted in the Court Commissioner’ report that no costly material was found in the suit premises has been discarded on the opinion that since renovation work was going on in the shop premises, question of costly material being stored in the suit premises did not arise. The Appellate Court relying on defendants’ oral and documentary evidence noted that the Trial Court committed manifest error in proceeding on the 15 assumption that no evidence was produced by the tenants as to when the renovation work commenced and when it ended. The Appellate Court has adverted to the evidence such as agreement dated 1st December, 1978 executed between the parties, which in fact would indicate that there was no dispute that the landlady herself had agreed to make renovation of the suit premises under the said agreement. However, inspite of the agreement no renovation was done by the landlady for which, the tenants continuously corresponded and eventually gave intimation to the landlady that they were proceeding with the work on their own. The tenants thereafter got the shop renovated with all modern amenities and decoration by spending amount to the extent of Rs.1,48,000/-. The Appellate Court has accepted the explanation of the tenant that there was sufficient cause for not using the suit premises during the period of renovation. The Appellate Court has also adverted to the documentary evidence, such as, railway invoices for period 1977 till 1983, order for supply of goods dated 30th December, 1977(Exh.118), invoice receipt dated 13th October, 1978(Exh.119), Invoice Receipt dated 26th January, 1979(Exh.120) and dated 16th December, 1981(Exh.121). Referring to all these invoices, the Appellate Court proceeded to find that 16 it would go to show that the shop was never closed and that the business of the tenants was continuing. The Appellate Court also adverted to the evidence of defendants’ witness that the factory at Talegaon had never closed, as was suggested. All these material has not been adverted to by the Trial Court. Indeed, the Trial Court jumped to the conclusion that the defendants/tenants failed to establish the factum of sufficient cause for non-user for more than six months preceding the date of institution of the suit. The view taken by the Appellate Court on the analysis of evidence on record is unassailable. 9. On analysing the evidence in its totality, the Appellate Court was justified in concluding that the Trial Court glossed over the crucial evidence and documents, whereas the same would establish that work of renovation was carried out between June, 1980 to March, 1981. That was sufficient cause for not using the suit premises for continuous period of six months for the purpose for which it was let out preceding the date of institution of the suit. The suit was instituted on 12th September, 1980. The fact that there was necessity of renovation has been conceded by the landlady on execution of the agreement dated 1st December, 1978. It is a different matter that 17 the landlady later on refused to act upon the said agreement and unilaterally treated the said agreement to be void. Suffice it to observe that renovation commenced only after the tenants gave intimation to the landlady that since renovation work has not been undertaken by her in terms of the agreement, they were proceeding with the same at their cost. All these aspects have been carefully examined by the Appellate Court before overturning the finding of fact reached by the Trial Court, which was manifestly wrong. I am in agreement with the opinion of the Appellate Court that the Trial Court could not have come to the conclusion inspite of the oral and documentary evidence brought on record by the defendants/tenants. Accordingly, even the finding and conclusion reached by the Appellate Court on the issue of non-user of the suit premises because of reasonable cause for a period exceeding six months preceding the date of institution of the suit will have to be upheld. In this view of the matter, the suit filed by the landlady has been rightly dismissed by the Appellate Court. For that reason, the present Petition should fail being devoid of merit. 10. That takes me to the Civil Application No.757 of 2004. This Application was filed by the landlady 18 during the pendency of the Writ Petition on the assertion that she has already paid amount of Rs.4404/- by way of taxes to the Pune Municipal Corporation with regard to the suit property. However, she was required to pay additional amount of Rs.5345/- payable towards taxes from the year 1997 till 2003 but was not able to do so due to lack of funds. The Petitioner/Applicant therefore, has sought direction against the Respondents/tenants to not only reimburse the amount already paid but also to pay the additional amount payable towards taxes aggregating to sum of Rs.9749/-. 11. The Respondents/tenants have contested this application. Even on fair reading of the reply affidavit filed by the Respondents, it is not their case that they are not liable to pay municipal taxes, as claimed by the Plaintiff. However, according to the tenants, the plaintiff had not produced any documents to suggest that she has already paid amount of Rs.4404/- towards taxes. As a matter of fact, the Respondents have stated that they would pay commensurate amount subject to production of proof. In other words, the Respondents are not opposed to making payment for the amount spent by the applicant towards municipal taxes but insist for substantiating 19 that claim. Thus understood, the application will have to be disposed of with direction to the Respondent No.1 to settle the outstanding dues towards municipal taxes with regard to the suit property and reimburse and/or pay the required amount to the applicant forthwith, in any case not later than six weeks from today. 12. Counsel appearing for the Respondent No.1 agrees to abide by this condition. That assurance is accepted. 13. In the circumstances, Application is disposed of on the above terms. 14. Accordingly, present Writ Petition is dismissed and the Judgment and Decree passed by the Appellate Court dismissing the suit for eviction preferred by the Petitioner/plaintiff is confirmed. The companion Civil Application is disposed of on the above terms. Ordered accordingly. No order as to cost. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)