gst 1 cra517.08cav.sxw IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION. CIVIL REVISION APPLICATION NO. 517 OF 2008. Dyaneshwar R. Tambe ... .... ... ....Applicant. V/s Vasant Dashrath Ursal... .... ... ...Respondent. Mr.S.N.Chandrachud, Adv. For the applicant. Mr.R.S.Apte i/by Mr.Mandar Limaye, Adv . For the respondent. CORAM: B.R. GAVAI, J. 8th February, 2011. Oral Judgment: The present revision application challenges the concurrent orders passed by the learned Small Causes Court, Pune in RCS No.347/05 thereby dismissing the suit filed by the present respondent and the order passed by the learned District Judge in Civil Appeal No.732/07 thereby dismissing the appeal filed by the present appellant. 2. The suit for eviction, possession and injunction came to be filed by the respondent under section 16(1)(c) of the Maharashtra Rent Control Act, 1999. It was the contention of the plaintiff that he was owner of the suit property and had let out two rooms on the ground floor to the defendant-applicant on monthly rent of Rs.30/- excluding the Pune Municipal Taxes. It was also his contention that the defendant as per the agreement was entitled to use common WC toilet and the passage. It was his contention that there are two WCs and two bathrooms on the ground floor for the common use of the tenants as well as the plaintiff’s family. However the defendant has put up his lock on one WC and bathroom. It was therefore his contention that as a result thereof the plaintiff was not in a position to utilize the same for day-to-day use and that gst 2 cra517.08cav.sxw they were required to climb 51 steps for utilizing bathroom on 3rd floor. It was also case of the plaintiff that whenever the plaintiff or members of his family tried to use the same they were abused in filthy language by the defendant. It is further his case that the defendant had threatened the plaintiff that none of members of his family should enter the said area of WC bathroom and open space. It was further case of the plaintiff that defendant did not allow them to get tap water from the ground floor which was for common use. It was further case of the plaintiff that the defendant was utilizing open space of the courtyard on the ground floor for his own use in such a manner that it was causing nuisance and inconvenience to the plaintiff. It was his case that the defendant had kept scrap raw material in the open space in the suit premises; that he has parked old cycles in such manner as no one else can use the said open space; that defendant No.1 used to throw debris/waste material/garbage on east and west sides of the premises; that the defendant’s son Dhananjay and other family members used to start engine of two wheelers and raise the accelerator in such a manner that plaintiff and other tenants used to get annoyed with the sound as well as the smoke. 3. It was further case of the plaintiff that when on 3.5.2002 he was about to go out with scooter which was parked in the parking space of the suit premises, the defendant and his wife abused the plaintiff and shouted at him not to park the scooter. It was also his case that they threatened him with and as a result thereof the plaintiff and his wife lodged a complaint against the defendant. It was also case of the plaintiff that defendant was addicted to alcohol and that under the influence of alcohol used to abuse the plaintiff and his family members in filthy language; that he used to come home during odd hours at night and create nuisance by shouting and kicking the doors of WC etc. In these premises decree for eviction, possession and mandatory injunction was claimed by the plaintiff. 4. The suit of the plaintiff was resisted by the defendant. It was his case gst 3 cra517.08cav.sxw that the plaintiff’s house consisted of ground plus three floors and that on every floor there was bathroom, WC and water closet. It was his case that recently plaintiff had leased out open space for carrying on business with a view to obstruct the passage to be used by the occupants of the said premises; that the plaintiff by removing all the tenants from the 1st, 2nd and 3rd floors has converted the said premises into a hostel and was earning good profits. It was also his case that the wife of the plaintiff had lodged false complaint. 5. The learned trial Court after considering the evidence led on behalf of the plaintiff and the defendant decreed the suit. An appeal preferred there against is also dismissed. Hence the present civil revision application. 6. Shri Chandrachud, learned counsel appearing on behalf of the applicant submits that the findings recorded by both the courts below are totally perverse. He submits that the plaintiff had utterly failed to make out a case. Learned counsel submits that the evidence of the photographer Mr.M.D.Waikar was totally misconstrued by the Courts below. He submits that merely storing some articles in the open space would not amount to nuisance. Learned counsel relies upon a judgment of the Gujarat High Court in the case of Gaurishankar @ Babulal Govindji Vs. Bhikhalal Chhaganlal & Ors., 1978 Bom.R.C. 194, judgment of this Court in the case of Kashinath Shankar Gambhire Vs. Sudha Gopal Patil (Sou.) & Ors., 2001 (2) Bom.C.R. 210 and the judgment of the Apex Court reported in the case of Rafat Ali V/s Sugni Bai & Ors., 1999 Bom. R.C. 263. 7. Shri Apte, learned senior counsel appearing on behalf of the respondent vehemently opposed the application. He submits that both the Courts have come to the concurrent findings of facts on the basis of evidence led before it that the plaintiff has made out a case of nuisance. He submits that scope of interference by this Court in concurrent findings of fact is limited and unless it is pointed out that the findings recorded are perverse, it will not be permissible for this Court to reverse the same. Learned counsel relies upon a judgment gst 4 cra517.08cav.sxw of the Apex Court reported in the case of Shantilal Kesharmal Gandhi V/s Prabhakar Balkrishna Mahanubhav, (2007) 2 SCC 619 and of this Court in the case of Major D.V.Panse & Anr. V/s Mr.Laxminarayan Khar & Anr., 2003 Vol. 105(2) Bom.L.R. 536, judgment reported in the case of Gulam Husain Mirza V/s Laxmidas Premji & Anr., 1984 Mh.L.J. 215, judgment reported in the cases of M/s.Jagdish Brothers Agrawal & Ors., V/s Gayasuddin Abdul Kadar Konkani & Ors., 2004 Vol. 106(4) Bom.L.R. 190 and the judgment of Punjab High Court reported in the case of Niader Mal V/s Ugar Sain Jain & Anr., AIR 1966 Punjab 509. 8. The scope of interference by this Court in the revision is very limited. Unless it is pointed out that the jurisdiction exercised by the Courts below has been exercised with material irregularity It will not be permissible for this Court to interfere with the same. In that view of the matter unless the concurrent findings recorded by the Courts below are found to be perverse and impossible the interference would not be warranted in the present revision. The Courts below on the basis of evidence led before it have come to the conclusion that the plaintiff has established the case of nuisance. Learned trial Court has relied upon evidence of defendant himself. It has been noticed by the learned trial Court that when the defendant was shown photographs he has admitted that the said photographs related to court yard and vacant space and that he has further admitted that he had kept cycles, scrap and raw material etc. In so far as the evidence of defendant’s witness who was co-tenant viz. Abhyankar is concerned, his evidence was disbelieved by the learned trial Court by observing that the plaintiff had filed the suit for eviction against him. It has been further found that the girls residing in the hostel had also lodged a complaint against him. 9. The learned trial Court has further found that the application for temporary injunction was allowed in favour of the plaintiff on 29.9.05 thereby restraining the defendant from causing obstruction in the enjoyment of WC and gst 5 cra517.08cav.sxw common passage and bathroom. However since according to the plaintiff the defendant had breached the said order he was required to file darkhast No. 168/06 wherein the Commissioner was appointed for inspection. It has been stated in the said report that the Court Commissioner had found number of articles (non-used) vehicles kept in passage by the defendant. It has further been found that though an undertaking was given by the defendant the he would remove the said articles, he had not removed the same and as such contempt petition was required to be filed. 10. In so far as the case of the defendant that the rooms were let out with a right to exclusive use of one WC and bathroom is concerned, same was found to be without substance by the learned trial Court on the basis of documentary evidence i.e. the agreement and the rent receipt. 11. The learned Appellate Court on re-appreciation of the evidence affirmed the findings of the trial Court. It is pertinent to be noted that in pursuance of the darkhast filed by the plaintiff against the defendant for disobeying order of injunction a Commissioner was appointed by the learned trial Court. The said Commissioner had given a detailed report showing various articles viz. Cycles, scrap material etc. kept in the suit premises. It is to be noted that the Court Commissioner also found the bathroom adjacent to the defendant’s room locked. It is pertinent to note that the said report was not disputed by any one including the defendant. It is further to be noted that the defendant himself had given an undertaking that he would remove all the articles therefrom. However, inspite of giving such an undertaking the defendant did not comply with the same and as such the plaintiff was required to file contempt petition. It thus appears to be undisputed position that the defendant had stored various articles in the passage which was for common use, thereby obstructing the use thereof by the plaintiff and other tenants. It also appears to be undisputed position that he had locked the bathroom which was meant for common use by the tenants and the plaintiff and which was not meant for his exclusive use. gst 6 cra517.08cav.sxw 12. By now it is settled position of law that there cannot be hard and fast rule as to what amounts to nuisance. However it has been construed to be something which affects life and limb of others, violates the law of decency or obstructs enjoyment of rights of others. Whether a particular act would amount to nuisance or not would depend upon the facts and circumstances of each case. In the present case both the Courts have concurrently found that the defendant had stored various articles including vehicles in the passage which was meant for common enjoyment of all the tenants of the plaintiff and thereby obstructed the use of the same. It has also been concurrently found that he had locked the bathroom which was for common use by other tenants including the plaintiff. It cannot be said that those acts did not amount to nuisance. 13. In so far as the judgment of Gujarat High Court in the case of Gaurishankar @ Babulal Govindji (supra) on which the plaintiff relies is concerned, in the said case, the case of the plaintiff was that the tenant was residing with sister-in-law in adultery and as such there were quarrels between the sister-in-law and wife, the Court therefore held that the domestic quarrels would not amount to nuisance. As such the same would not be applicable to the facts of the present case. In case of Kashinath Shankar Gambhire (supra) the Court found that decree of eviction was passed on two grounds viz; (i) that the defendant had been unnecessarily litigating against the plaintiff in civil matters and also by launching criminal cases and (ii) that the defendant by his behaviour and conduct by frequently quarreling and assaulting all neighbouring occupants is guilty of nuisance. This Court in so far as the first ground is concerned, found that even the issue pertaining to such ground was not framed by the trial Court and as such it was not open for the Courts to examine the ground of nuisance on the said basis. In so far as the reason for frequently quarreling and assaulting is concerned, this Court found that the witness examined by the plaintiff could not establish that conduct was of such a nature that it would cause nuisance to the adjoining occupants of the said premises. gst 7 cra517.08cav.sxw As such the said judgment would also not be applicable to the facts of the present case. In so far as the judgment of the Apex Court in the case of Rafat Ali (supra) is concerned the first authority and the appellate authority had refused to grant decree of eviction on the ground of nuisance. However in the revisional jurisdiction the High Court had reversed those orders and decree the suit. The Apex Court therefore found that in view of the inherent limitations of the High Court in the revisional jurisdiction it was not just on the part of the High Court to have reversed the orders of the first and appellate authority. As such the said judgment of the Apex Court would also not be applicable to the facts of the present case. 14. Learned Single Judge of this Court in the case of Major D.V.Panse & Anr. (supra) has in similar circumstances passed a decree against the tenant on the ground of nuisance. In another case of Gulam Husain Mirza (supra) learned Single Judge has held that cases where property is trespassed upon and appropriated to one’s own use to the exclusion of others’ entitlement would be within the mischief of nuisance. As it could be seen in the present case that the Courts below have concurrently come to the finding of fact that defendant No.1 obstructed the passage by putting there raw material, scraps, cycles etc. and deprived the other occupants of the enjoyment of the said passage. It has also been concurrently found that though the WC was meant for common use the same was locked by the defendant thereby depriving other occupants the use of the same. The Punjab High Court in the case of Niader Mal (supra) has also held that obstruction to other occupants from using bathroom and WC constitutes a nfmt (copy)uisance. 15. In that view of the matter I do not find that jurisdiction which has been exercised by the learned Courts below can be said to have been exercised with material irregularity so as to warrant an interference. Hence Civil Revision Applications stands rejected. However in the facts and circumstances of the case there shall be no order as to costs. gst 8 cra517.08cav.sxw 16. At this stage learned counsel Mr.A.L. Patki holding for Mr.Chandrachud, for the applicant on instructions from the applicant states that the applicant accepts the judgment of this Court but however prayed that some time be granted to the applicant to vacate the premises. 17. In that view of the matter respondent is directed not to evict the applicant from suit premises for a period of six months from today on the applicant filing a written undertaking within a period of two weeks from today before this Court that he and all members of his family will vacate the suit premises and hand over vacant and peaceful possession of the suit premises to the respondent-landlord on or prior to a period of six months from today and further that he shall not create any third party interest in the suit property till then. Needless to state that if such an undertaking is not filed within stipulated period the respondent-landlord would be would be free to execute the decree.