Bombay High Court
Shaikh Mohmad Rafiq Abdul Rehman vs Shri. Keshav Ramchandra Jadhav (Since ... on 25 October, 2024
2024:BHC-AS:42796
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.4788 OF 1998
Shaikh Mohmad Rafiq Abdul Rehman ....
Petitioner
(since deceased) by his LRs and representatives
1A) Smt. Sakina B. Mohmad Rafiq Shaikh
(since deceased through Lrs. being
Petitioner Nos.1B and 1C
1B) Habib Shaikh Mohmad Rafiq
Age 52 years, Occ. Auto Rikshaw Driver
1C) Jameel Ahmed Mahmad Rafiq
Age 47 years, Occ. Tempo Driver
Petitioner Nos.1A to 1C above all
R/at 104, Somwar Peth, Pune 411 011.
V/S
Keshav Ramchandra Jadhav
(since deceased) by his legal heirs and
representatives
1-A Smt. Ujwala Keshav Jadhav
Age 60 years, Occ. Household
1-B Sou. Namita Keshav Jadhav
Age 27 years, Occ. Household
1-C Sou. Mughadha Keshav Jadhav
Age 24 years, Occ. Household
All the Respondents are residing at:
B-12, Flat No.10, Meera Nagar Terrace
Koregaon Park, Pune 411 001. ....Respondents
_________
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Mr. Sanjeev J. Rairkar for the Petitioners.
Mr. R.D. Soni i/b M/s. Ram & Co. for Respondent Nos.1 to 3.
__________
CORAM : SANDEEP V. MARNE, J.
RESERVED ON : 18 OCTOBER 2024.
PRONOUNCED ON : 25 OCTOBER 2024.
JUDGMENT
1. Petitioner-Tenant has filed this Petition challenging judgment
and decree dated 6 July 1998 passed by the 8 th Additional District
Judge, Pune, allowing Civil Appeal No.438 of 1992 and setting
aside the decree passed by Small Causes Court in Suit No.791 of
1986 on 14 August 1992. The Appellate Court has allowed
Plaintiff's suit and has directed Petitioner-Defendant to handover
vacant possession of the suit premises.
2. Plaintiff/Respondent is the owner of House No.104, Somwar
Peth, Pune - 411 011. One room admeasuring 9' x 9' situate in the
said House No.104 are the 'suit premises' in which Defendant was
inducted as a monthly tenant at the rate of Rs.13/- plus education
cess of 90 paise. The suit premises were let out for residential
purposes. According to Plaintiff, Defendant unlawfully converted
the premises for business purposes as Defendant's son started
using the premises for doing repair works of motorcycles and other
vehicles. Plaintiff also alleged construction of permanent structure
at the suit premises.
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3. Accordingly, Plaintiff filed Small Cause Suit No.791 of 1986 in
Small Causes Court, Pune seeking recovery of possession of suit
premises from the Defendant on the grounds of putting up
permanent structure without his consent, change of user, nuisance
and annoyance as well as bonafide requirement. The suit was
resisted by the Defendant by filing Written Statement contending
that the erstwhile landlord had let out only open space to the
Plaintiff/Respondent, who constructed the structure at his own
expenditure after securing permission from the Municipal
Corporation. Defendant/Petitioner therefore denied ownership of
Plaintiff in respect of the constructed structure. Defendant denied
putting up any unauthorized permanent structure at the suit
premises and contended that his son does not conduct any business
of motorcycle repairs. Defendant further pleaded that Plaintiff had
constructed house for himself at House No.433/13, Somwar Peth,
Saraswat Colony and therefore was not in need of the suit
premises.
4. Based on the pleadings filed by the parties, Trial Court
framed issues about erecting permanent structure in the suit
premises and bonafide requirement of landlord. Though allegations
of change of user, nuisance and annoyance were also levelled in the
plaint, it appears that no issues were framed with regard to the
grounds of change of user and nuisance/annoyance. Both parties
led evidence in support of their respective claims. After considering
the pleadings, documentary and oral evidence, the Small Causes
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Court proceeded to dismiss the suit by decree dated 14 August
1992. The Small Causes Court held that the construction carried
out by the Defendant was in accordance with sanctioned plan by
Municipal Corporation bearing thumb impression of the erstwhile
owner. It was therefore held that the construction was carried out
with the consent of the erstwhile landlady. The Trial Court also
rejected the case of bonafide requirement holding that possession of
one room by the Plaintiff admeasuring 8 feet x 8 feet for residence
of himself, his wife and two daughters was sufficient. The Trial
Court also observed that Plaintiff had sufficient accommodation
and accordingly rejected the ground of bonafide requirement. This
is how the suit came to be dismissed by judgment and decree dated
14 August 1992.
5. Plaintiff/Respondent filed Civil Appeal No.438 of 1992
challenging the decree of the Trial Court dated 14 August 1992.
The Defendant/Petitioner filed cross-objections to the limited
extent of denial of costs to him in the suit. The Appellate Court
framed the points of (i) erecting permanent structure, (ii) creation
of nuisance by operation of garage. It appears that the ground of
bonafide requirement was not argued before the Appellate Court
and therefore the said point was omitted from consideration by the
Appellate Court. After hearing both the sides, the Appellate Court
accepted the ground of erecting permanent structure on the suit
premises without the consent of the Plaintiff/Respondent. The
Appellate Court also accepted the ground of cause of nuisance by
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the acts of Defendant/Petitioner running a garage. The Appellate
Court accordingly allowed Plaintiff's Appeal and set aside the
decree dated 14 August 1992. The Appellate Court directed
delivery of possession of suit premises to the Plaintiff. Cross-
objections filed by the Defendant-tenant were dismissed. Decree of
the Appellate Court dated 6 July 1998 is under challenge by the
Petition filed at the instance of the Defendant-tenant. By order
dated 14 June 1999, this Court admitted the Petition and stayed
the order of the Appellate Court. This is how Petitioner-tenant
continues to be in possession of the suit premises. Petition is called
out for final hearing.
6. Mr. Rairkar, the learned counsel appearing for the Petitioner-
Defendant-Tenant would submit that the Appellate Court has erred
in reversing the decree passed by the Trial Court. That the Trial
Court had rightly dismissed Plaintiff's suit by rejecting all the
grounds raised by Plaintiff for seeking eviction of Defendant-
Tenant. He would submit that Plaintiff's suit was barred on
principle of res judicata on account of withdrawal of earlier Suit
No.2055 of 1978, which was also filed seeking recovery of
possession of the suit premises on the basis of the same
construction. Relying on judgment of the Apex Court in Mayandi
vs. Pandarachamy and another1, he would submit that the
Plaintiff was barred from filing a fresh suit on same cause of action.
1 (2021) 20 SCC 585
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7. Mr. Rairkar had relied on provisions of Articles 66 and 67 of
the Limitation Act in support of his contention that the ground
with regard to erection of permanent structure is otherwise barred
by limitation. He would submit that construction has been put up
in the year 1960 and accordingly the suit filed by Plaintiff in the
year 1986 was clearly barred by limitation.
8. Without prejudice to the objection of res judicata Mr. Rairkar
would submit that the Defendant has not carried out any unlawful
construction in the suit premises. That whatever construction that
is carried out is after securing due permission from the Municipal
Corporation after the erstwhile landlady gave permission for such
construction. He would invite my attention to the development
permission issued by Pune Municipal Corporation on 30 December
1960 together with the plan for construction which bears thumb
impression of the erstwhile landlady. That the Trial Court had
correctly rejected the ground of unlawful additions after noticing
grant of permission for putting up construction by the Defendant
with the consent of the erstwhile landlady. He would therefore
submit that the Appellate Court has completely misdirected itself
in accepting the ground of putting up permanent construction
without the consent of the landlord under section 13(1)(b) of the
Bombay Rents, Hotel and Lodging House Rates Control Act, 1947
(Bombay Rent Act).
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9. So far as the ground of nuisance and annoyance is concerned,
he would submit that the said issue was not even framed by the
Trial Court. However instead of pressing the technical objection
Mr. Rairkar would submit that no evidence was produced in
support of the alleged ground of nuisance or annoyance. That no
neighboring tenant or occupier was examined in support of
allegation of nuisance or annoyance. That the ground of nuisance is
erroneously accepted by the Appellate Court only on the basis of
photographs produced by Photographer. That no witness has
deposed that Plaintiff's son was carried out the business of
motorcycle repairs in the suit premises. That therefore in absence
of any evidence on record, the Appellate Court has erred in
accepting the ground of nuisance and annoyance. That the finding
of change of user is erroneously recorded in absence of any issue
either before Trial or Appellate Court. In support of his contentions
Mr. Rairkar has relied upon following judgments:
i) Parvati Kevalram Moorjani vs. Madanlal Anraj
Porwal and others, 1987 SCC OnLine Bom 158;
ii) A.S. Sulochana vs. C. Dharmalingam, (1987) 1 SCC
180;
iii) B. Kandasamy Reddiar vs. O. Gomathi Ammal, (1998)
7 SCC 138;
iv) J.J. Lal Pvt. Ltd. and others vs. M.R. Murali and
another, (2002) 3 SCC 98;
v) Bachhaj Nahar vs. Nilima vs. Nilima Mandal and
another, (2008) 17 SCC 491;
vi) Shakuntala S. Tiwari (Smt.) vs. Hem Chand M.
Singhania, (1987) 3 SCC 211;
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vii) M.J. Exporters Private Limited vs. Union of India and
others, (2021) 13 SCC 543.
10. The Petition is opposed by Mr. Soni, the learned counsel
appearing for Respondent-Plaintiff. He would submit that the
finding recorded by the Appellate Court after appreciating the
evidence on record, do not warrant interference by this Court in
exercise of writ jurisdiction. He would submit that the Appellate
Court has rightly decreed the suit after arriving at the conclusion
that the Defendant committed multiple breaches of terms of
tenancy by erecting permanent structure without landlord's
consent as well as causing nuisance and annoyance by converting
residential premises into garage for repair of motorcycles. Mr. Soni
would submit that the objection of res judicata is clearly misplaced
in that the earlier suit was not decided on merits. Even otherwise
according to Mr. Soni, the earlier suit was not in respect of same
construction. He would further submit that the objection of res
judicata is otherwise not applicable to Rent Act suits as landlord is
entitled to file multiple suits against the tenant on different causes
of action. Even otherwise, the ground of change of user was not
raised in the earlier suit. Mr. Soni would submit that the Appellate
Court has analyzed the evidence on record for recording a finding
of fact that permanent structure has been erected by the
Defendant-tenant after commencement of tenancy. That section
13(1)(b) of the Bombay Rent Act requires landlord's consent in
writing for erecting any permanent structure and in the present
case, there is no such consent produced by the Defendant. That
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alleged thumb impression of the erstwhile landlady on the plan
sanctioned by the Municipal Corporation otherwise does not
amounting to written consent of the landlord for erecting any
permanent structure. Mr. Soni would accordingly submit that
conversion of residential premises into commercial one by
operating garage by Defendant's son is conclusively proved by
examining the Photographer. That photographs produced on record
undoubtedly proves operation of garage in the suit premises.
Mr. Soni would therefore submit that no interference is warranted
in finding of fact recorded by the Appellate Court after appreciating
the evidence on record. He would pray for dismissal of the Petition.
11. Rival contentions of parties now fall for my consideration.
12. Plaintiff's Suit No.791 of 1986 for eviction of Defendant-
tenant was premised on four grounds of (i) erecting permanent
structure without his consent, (ii) bonafide requirement, (iii)
change of user, and (iv) nuisance and annoyance on account of
operation of garage in the suit premises. The Trial Court initially
dismissed the suit and the Appellate Court has allowed the Petition
and has decreed the suit essentially on two grounds of (i) erecting
permanent structure without landlord's consent, and (ii) nuisance.
While answering the issue of nuisance, the Appellate Court has
also recorded finding of change of user. Thus, the ground of
nuisance is accepted essentially by upholding the allegation of
operation of motorcycle repairing garage.
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13. So far as the first ground of erecting permanent structure
without landlord's consent is concerned, Plaintiff's pleaded case in
this regard is to be found in paragraph 4 of the Plaint, which reads
thus:
"4. The defendant has, without the plaintiff's consent given in
writing, erected permanent structure on the premises. He has
constructed one shed and an otta admeasuring about 8' x 4', in
front of the suit premises. The defendant has also made a
permanent construction of kitchen platform and a loft. The
defendant has demolished the southern wall of the suit premises
and has fixed a wooden shelf there. The Western wall of the suit
premises was two feet thick, the defendant has reduced the
thickness of the said wall to barely six inches and has raised as
wooden rack for storage therein. He has also raised partition in
the suit premises."
14. It appears that Plaintiff had previously instituted Suit No.
2055 of 1978 in the Small Causes Court for eviction of the
Defendant, in which the ground of putting up permanent structure
was also included. In paragraph 4 of the plaint filed in Suit
No.2055 of 1978 Plaintiff had pleaded as under:
^4½ izfroknhus nkO;krhy tkxsr oknh o R;kP;k e;r pqyR;kzP;k ijokuxh
f'ok; dk;e Lo:ikps cka/kdke] QsjQkj dsys- [kksyhP;k iq<s vksVk cka/kyk o
vfrdze.k dsys- [kksyhr ikVhZ'ku r;kj dsys- Lo;aikdkP;k tkxstoG fHkar cka/kyh
nf{k.ksdMhy ekrhph fHkar ikMwu rsFks ykdMh QMrkG clfoys- "
15. Comparison of the averments made in paragraph 4 previously
filed Suit No.2055 of 1978 and subsequently filed Suit No.791 of
1986 would indicate similarity in the constructions. Thus both suits
essentially contained allegation of construction of an otta (platform)
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infront of the suit premises, construction of partition wall in the
suit premises and demolition of wall and construction of wooden
shelf. In the subsequently filed Suit No.791 of 1986 some additional
allegations of construction of kitchen platform and loft as well as
demolition of southern wall and thickness of the wall on the
western side are also included which were apparently absent in the
previously filed suit. Previous Suit No.2055 of 1978 was filed
between same parties. Plaintiff chose to withdraw Suit No.2055 of
1978 and the same was allowed to be withdrawn and disposed of by
order dated 16 June 1982. The issue is whether Plaintiff can be
permitted to institute a fresh suit in respect of the same
construction? The answer to my mind appears to be in the negative.
Since Plaintiff has withdrawn the previous suit without seeking
liberty to file fresh suit, he cannot file a fresh suit on same cause of
action of erecting permanent structure. Plaintiff did not seek
liberty to file a fresh suit under provisions of Order 23, Rule 1 of
the Code of Civil Procedure, 1908. Therefore Plaintiff is debarred
from instituting the fresh suit on the same ground of erecting
permanent structure without landlord's consent.
16. It is not the case of Plaintiff that after withdrawal of the Suit
on 16 June 1982, the Defendant put up any structure in the suit
premises. There is no such pleading in the plaint. Therefore, minor
variation in description of the construction in the two plaints could
not enure to the benefit of the Plaintiff in absence of specific
allegation that Defendant put up any construction after 16 June
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1982. In my view therefore, the ground of erecting permanent
structure without landlord's consent was clearly barred by res
judicata on account of withdrawal of Suit No.2055 of 1978 on 16
August 1982. By withdrawing the said Suit, Plaintiff accepted the
position that he did not have right to recover possession of the suit
premises on the ground of erecting permanent structure. It is not
that the said Suit was immediately withdrawn after its filing. The
Suit remained pending for 4 years from 1978 till its withdrawal on
16 August 1982. The Defendant had filed Written Statement in the
said Suit and the Suit was withdrawn possibly after noticing grant
of permission both by Municipal Corporation as well as by the
erstwhile owner for the alleged construction.
17. Even if the ground of res judicata was to be ignored, I do not
find sufficient material on record for inferring erecting of any
additional construction by the Defendant-tenant. Defendant-tenant
pleaded a specific case that the erstwhile landlady had let out only
open space on which the Defendant-tenant had carried out
construction of tin structure at his own expenses. The contention
appears to be well supported by development permission granted
by Municipal Corporation on 30 December 1960 in favour of the
Defendant-tenant. Along with the said development permission,
there is a plan approving the proposed construction. The plan bears
thumb impression of the erstwhile landlady Smt. Bhikubai
Yeshwant Chavan. The Appellate Court has grossly erred in
holding that mere presence of thumb impression of Bhikubai did
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not mean that Defendant had secured permission from Competent
Authority. This finding of the Appellate Court is completely
perverse and ignores consent of the landlady for proposed
construction by putting her thumb impression on the plan put up
for sanction before Pune Municipal Corporation. In any case, what
needs to be established for saving a decree of eviction is landlord's
consent in writing for erecting permanent structure. In the present
case, the erstwhile landlady has permitted erection of the said
structure by putting her thumb impression on the plan of proposed
construction. Thus it cannot be contended that the construction has
been carried out without the consent of landlord for attracting a
ground for eviction under section 13(1)(b) of the Bombay Rent Act.
18. Mr. Soni has attempted to suggest that the construction
described in the plaint does not match the one sanctioned in the
plan. However, there is no pleading by the Plaintiff in the plaint
describing in the original structure and any additions made to it.
Plaintiff in fact suppressed the position that the Defendant had
secured permission from Municipal Corporation for construction of
the tenanted structure. This is a unique case where Defendant is in
possession of the original sanctioned plan since the construction is
put up by him. Plaintiff has not discharged the burden of
comparing the original structure with the changes made therein.
His pleadings in the plaint are vague and proceed on suppression of
the fact that the Defendant himself has constructed the tenanted
structure. If Plaintiff wanted to set up a case that the Defendant
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carried out any additional structure over and above the one
sanctioned by the Municipal Corporation particularly after the suit
premises were purchased by him, he ought to have pleaded such
case and proved the same by adducing evidence.
19. Thus there are multiple hurdles for Plaintiff to secure decree
for eviction on the ground of erecting permanent structure before
landlord's consent. Firstly, he withdrew Suit No.2055 of 1978 in
which allegation of permanent construction was raised. Secondly,
he did not plead that after withdrawal of Suit No.2055 of 1978
Defendant carried out any additional construction in the suit
premises. Thirdly, after noticing defence of the Defendant that he
constructed the suit premises after obtaining permission from
Municipal Corporation, Plaintiff did not plead or prove the case
that Defendant subsequently carried out any unauthorized
additions and/or alterations in the construction carried out in
accordance with the sanctioned plan. In my view therefore, the
Plaintiff has thoroughly failed to prove the case of erecting
permanent structure without landlord's consent and therefore no
case was made out for ordering Defendant's eviction under
provisions of section 13(1)(b) of the Bombay Rent Act.
20. Moving to the next ground of nuisance, which is accepted by
the Appellate Court, it is seen that the Trial Court had not
formulated any issue relating to nuisance or annoyance. However,
Mr. Rairkar has fairly submitted that Petitioner does not want to
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upset the decree of Appellate Court on technicalities and would
defend the ground of nuisance on merits. Under provisions of
section 13(1)(c) of the Bombay Rent Act, landlord becomes entitled
to recover possession of the suit premises, if the tenant is guilty of
nuisance or annoyance to the neighbouring or adjoining occupiers.
Section 13(1)(c) of the Bombay Rent Act provides thus:
"13.(1)(c) that the tenant or any person residing with the tenant
has been guilty of conduct which is a nuisance or annoyance to the
adjoining or neighbouring occupiers, or has been convicted of using
the premises or allowing the premises to be used for immoral or
illegal purposes; or that the tenant has in respect of the premises
been convicted of an offence of contravention of any provision of
clause (a) of sub-section (1) of section 394 or of section 394-A of the
Bombay Municipal Corporation Act; or"
21. If pleadings in the plaint are perused, the Plaintiff pleaded
the ground of nuisance and annoyance in paragraph 5 as under:
"5. The Plaintiff is residing in one small room admeasuring
about nine feet by nine feet, with his wife and two school going
daughters. The premises occupied by the plaintiff are not at all
sufficient for the use and occupation by his family. The suit
premises are reasonably and bonafide required by the Plaintiff for
his own use and occupation. If the decree for possession is refused
greater hardship would be caused to the Plaintiff than to the
defendant. The defendant therefore, is liable to be evicted."
22. Thus, Plaintiff pleaded receipt of repeated complaints from
other tenants as the activity of carrying out motorcycle repairing
work by Defendant's sons created nuisance and annoyance to the
adjoining or neighbouring occupiers. However, Plaintiff did not
examine even a single neighbouring or adjoining occupier. It is well
established position of law that if the neighbouring or adjoining
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occupier is landlord himself, the ground of nuisance/annoyance can
be accepted if nuisance/annoyance is suffered by the landlord
himself. In the present case however, there is nothing to indicate
that Plaintiff was occupier of any neighbouring or adjoining
premises. In that view of the matter, it was necessary for the
Plaintiff to examine atleast once neighbouring or adjoining occupier
to prove cause of nuisance or annoyance to them. Plaintiff in fact
made a statement in his cross-examination that he did not wish to
examine any other tenant. Thus beyond examining himself and the
photographer, Plaintiff did not examine any other witness in
support of his case. In my view therefore, the Appellate Court has
erred in accepting the ground of nuisance and annoyance in
absence of any evidence on record.
23. Mr. Soni has attempted to suggest that production of
photographs proved the activity of operation of garage in the suit
premises. However, perusal of the deposition of the photographer
would indicate that beyond production of photographs, the
photographer did not himself adduce any evidence about activity of
carrying out any repair work in the suit premises. I have perused
the photographs in the original records and proceedings sent by the
Courts below and it is difficult to form a definitive opinion on mere
perusal of photographs that the activity of motorcycle repairing
works was being carried out in the suit premises at the relevant
time. Plaintiff ought to have examined atleast one witness to
depose that Defendant or his sons were carrying out motorcycle
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repair business in the suit premises. A person, whose motorcycle
was repaired at the suit premises could also have been examined as
a witness. The photographer has also not made any positive
statement in his evidence that he himself saw any person repairing
motorcycle in the suit premises. In my view therefore, the findings
of the Appellate Court about operation of garage by Defendant's son
in the suit premises are not well supported by evidence on record.
Thus, there is neither conclusive evidence in support of operation of
garage in the suit premises nor any direct evidence by
neighbouring or adjoining occupier about any nuisance being
caused to them on account of any of the activities of the Defendant.
24. Considering the fact that Plaintiff could not prove erecting of
any permanent structure without consent of landlord, it is not
necessary to go into the issue of limitation. I am therefore not
discussing the ratio of various judgments sought to be relied upon
by Mr. Rairkar so as not to burden the judgment any further.
25. In my view therefore, Plaintiff has thoroughly failed in
making out even a single valid ground for seeking eviction of
Defendant. The Trial Court had rightly dismissed Plaintiff's suit.
The Appellate Court has palpably erred in reversing the findings
recorded by the Trial Court. The findings recorded by the Appellate
Court on the issues of bonafide requirement and nuisance suffer
from the vice of perversity, warranting interference by this Court
in exercise of writ jurisdiction.
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26. Resultantly, Writ Petition succeeds, and I proceed to pass
following order:
(i) Judgment and decree dated 6 July 1998 passed by
8th Additional District Judge, Pune in Civil Appeal
No.438 of 1992 is set aside and decree dated 14
August 1992 passed by 5th Additional Small Causes
Judge, Pune, dismissing Civil Suit No.792 of 1986 is
confirmed.
(ii) Resultantly, Civil Suit No.792 of 1986 is dismissed.
27. Writ Petition is allowed in above terms. Rule is made
absolute. There shall be no order as to costs.
(SANDEEP V. MARNE, J.)
Digitally
signed by
SUDARSHAN
SUDARSHAN RAJALINGAM
RAJALINGAM KATKAM
KATKAM Date:
2024.10.25
17:18:45
+0530
