Case: Rafat Ali Vs. Sugni Bai

damage, actual or presumed. Damage alone gives no right of action; the mere fact that an act causes loss to another does not make that act a nuisance.For the purposes of the law of nuisance an unlawful act is the interference by act or omission with a persons use or enjoyment of land or some right over or in connection with land." 13. Suffering of damage must be proved in a case of nuisance unless it can be presumed by law to exist. But the damage to amount to actionable nuisance must be substantial or at least of some significance. In other words, if the damage is insignificant or evanescent or trivial it would not be actionable nuisance. The following passage in para 312 of the same volume in Halbruys Laws of England is worth extracting in this context. "312. Damage essential. Damage, actual, prospective or presumed, is one of the essentials of nuisance. Its existence must be proved, except in those cases in which it is presumed by law to exist.The damage need not consist of pecuniary loss, but it must be material or substantial, that is, it must not be merely sentimental, speculative or trifling, or damage that is merely temporary, fleeting or evanescent." 14. It is clear from clause (iv) of Section 10(2) of the Act that what is envisaged therein is only private nuisance and not public nuisance. This can be discerned from the words "nuisance to the occupiers of other portions in the same building or buildings in the neigbourhood." Perhaps in a wide sense any industrial activity may create some sound while such activities are in operation. Such sound may be uncomfortable to those who are over sensitive to such noise. But then care must be taken because every inconvenience cannot become actionable nuisance. To make it actionable the nuiance must be of a reasonably perceptible degree as pointed out earlier.15. Rent Control Court considered landlords case regarding nuisance. Landlords said that the tenant was quarrelling with them "whenever they go for collection of rents." They have also alleged that appellant was running machines late in the night and thereby causing nuisance to the other occupiers of the building. As the appellant was running high business with the same machines right from the beginning, Rent Control Court was not inclined to treat such noise as amounting to nuisance. Appellate authority pointed out that "there was no complaint prior to filing of the eviction petition at any time against the tenant that the he caused damage to the building." On the other hand, the Rent Control Court noticed that machinery was installed in this building way back in 1970 and the same is under operation even now. On the above reasoning both the authorities uniformly concluded that tenant has not committed any act of nuisance to attract the ground of eviction. But the High Court upset such a finding in a very casual manner unmindful of the inherent limitations of the revisional jurisdiction.The third ground for eviction is related to causing damage to the building. For damage to the building to amount to a ground for eviction, its proportion must as delineated in clause (iii) of Section 10(2) of the Act: "That the tenant has committed such acts of waste as are likely to impair materially the value or utility of the building." 16. All acts of waste do not amount to a ground for eviction. It is only those acts of waste which would very probably impair the value of the building or its utility. The word "likely" in the above clause must be understood as a condition which is reasonably probable that such acts would cause impairment to the value or utility of the building. However, it is not enough that some impairment has been caused to the building. The value of the building or utility thereof should have been lessened in a reasonably substantial degree. Then only it can be said that the acts of waste are likely to impair the value or utility of the building "materially". In Om Pal v. Anand Swarup, 1988(2) RCC (Rent) 419: 1988(4) SCC 545 the Court, while considering a similarly worded clause in another Rent control enactment, has observed thus: "In order to attract Section 13(2)(iii) the construction must not only be one affecting or diminishing the value or utility of the building but such impairment must be of a material nature i.e. of substantial and significant nature. When a construction is alleged to materially impair the value or utility of a building the construction should be of such a nature as to substantially diminish the value of the building either from the commercial and monetary point of view or from the utilitarian aspect of the building. The burden of proof of such material impairment is on the landlord." 17. An Advocate-Commissioner visited the building and pointed out the following features in his report regarding the damage noticed by him: "There is only concrete flooring with uneven surface. Due to the use of machinery there is a hole in the flooring on the eastern side and it was meant for inserting pipe. There was no damage to the roof and walls. Some nail-holes were also noticed. When the lathe machines were operated the Advocate Commissioner noticed that there was no vibration either on the ground floor or on the walls of the main building though very slight vibration was noticed on the parapet walls of the first floor."18. Both the fact finding courts found that the above items of damage are only trivial and will not affect the building. But the High Court found that "the landlords proved that the tenant caused damage to the demises premises by causing holes and leaving spaces between the shutter and the wall as seen from the Commissioners report." It was not open to the High Court to substitute the findings of the lower courts with its own findings so easily as that while exercising the limited supervisory jurisdiction.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]14. It is clear from clause (iv) of Section 10(2) of the Act that what is envisaged therein is only private nuisance and not public nuisance. This can be discerned from the words "nuisance to the occupiers of other portions in the same building or buildings in the neigbourhood." Perhaps in a wide sense any industrial activity may create some sound while such activities are in operation. Such sound may be uncomfortable to those who are over sensitive to such noise. But then care must be taken because every inconvenience cannot become actionable nuisance. To make it actionable the nuiance must be of a reasonably perceptible degree as pointed out earlier.15. Rent Control Court considered landlords case regarding nuisance. Landlords said that the tenant was quarrelling with them "whenever they go for collection of rents." They have also alleged that appellant was running machines late in the night and thereby causing nuisance to the other occupiers of the building. As the appellant was running high business with the same machines right from the beginning, Rent Control Court was not inclined to treat such noise as amounting to nuisance. Appellate authority pointed out that "there was no complaint prior to filing of the eviction petition at any time against the tenant that the he caused damage to the building." On the other hand, the Rent Control Court noticed that machinery was installed in this building way back in 1970 and the same is under operation even now. On the above reasoning both the authorities uniformly concluded that tenant has not committed any act of nuisance to attract the ground of eviction. But the High Court upset such a finding in a very casual manner unmindful of the inherent limitations of the revisional jurisdiction.The third ground for eviction is related to causing damage to the building. For damage to the building to amount to a ground for eviction, its proportion must as delineated in clause (iii) of Section 10(2) of thethe tenant has committed such acts of waste as are likely to impair materially the value or utility of the building.All acts of waste do not amount to a ground for eviction. It is only those acts of waste which would very probably impair the value of the building or its utility. The word "likely" in the above clause must be understood as a condition which is reasonably probable that such acts would cause impairment to the value or utility of the building. However, it is not enough that some impairment has been caused to the building. The value of the building or utility thereof should have been lessened in a reasonably substantial degree. Then only it can be said that the acts of waste are likely to impair the value or utility of the building "materially".An Advocate-Commissioner visited the building and pointed out the following features in his report regarding the damage noticed by him: "There is only concrete flooring with uneven surface. Due to the use of machinery there is a hole in the flooring on the eastern side and it was meant for inserting pipe. There was no damage to the roof and walls. Some nail-holes were also noticed. When the lathe machines were operated the Advocate Commissioner noticed that there was no vibration either on the ground floor or on the walls of the main building though very slight vibration was noticed on the parapet walls of the first floor."18. Both the fact finding courts found that the above items of damage are only trivial and will not affect the building. But the High Court found that "the landlords proved that the tenant caused damage to the demises premises by causing holes and leaving spaces between the shutter and the wall as seen from the Commissioners report." It was not open to the High Court to substitute the findings of the lower courts with its own findings so easily as that while exercising the limited supervisory jurisdiction.