ORDER
1. This Civil Revision Petition is filed under S.50(1) of the Karnataka Rent Control Act, 1961 (hereinafter referred to as ‘the Act”) against the order of dismissal passed by the IX Additional Small Causes Judge,
Bangalore City, in H.R.C. No. 3456 of 1980 (Old No. 1726 of 1979), the eviction petition having been filed under S.21(1)(a), (d), (h) and (p) of the Act. On 1-8-1981, the petitioner filed an amended eviction petition in pursuance of an order passed by the trial Court dt. 23-7-1981 on I. A-V under O.6, R. 17, C.P.C.
2. The material facts of the case are that the respondent is a tenant in occupation of residential premises No. 3, III Cross, Kempa-pura Agrahara, Magadi Road, Bangalore-23 paying a monthly rent of Rs. 42. / -. It is stated that the respondent is a chronic defaulter in payment of rent and on 25-11-1971, the petitioner issued a legal notice through his Counsel alleging default in payment of arrears of rent commencing from 1-7-1971 and ending 30-10-1971, the arrears being Rs. 168/- and terminating the tenancy calling upon the respondent to deliver possession of the tenanted premises. Though a reply was issued by the respondent, according to the petitioner, the reply was untenable.
3. Thereafter, the petitioner instituted eviction proceedings in H.R.C. No. 844 of 1972 against the respondent which was subsequently transferred to the Court of the Civi Judge bearing H.R.C. No. 1299 of 1975. “J.’he case was dismissed on 25-3-1977 for default and, subsequently, the petitioner filed a miscellaneous petition for restoration in Miscellaneous No. 85 of 1977 which was also dismissed on 1-12-1978.
4. According to the petitioner, the respondent was due rents from 1-7-1971 to 30-11-1974 for a period of 41 months amounting to Rs. l,722/- and subseqeuntly from 30-11-1974 to 31-12-1978 for a period of 49 months amounting to Rs. 2,058/-, the total being Rs. 3,780,’-. Out of the said amount, the respondent deposited in Court and by Money Orders and also by way of payment of tax a sum of Rs. 3,066/- up to 7-12-1978 leaving a balance of Rs. 714/- unpaid up to 31-12-1978. Rents further accrued up to 30-9-1979 in a sum of Rs. 378/-. As on that date, according to the petitioner, the arrears due from the respondent amounted to Rs. 1,092/-. Thereafter, the petitioner issued a legal notice to the
respondent demanding payment of arrears of rent and, at the same time, terminating the tenancy. Even after the institution of the eviction petition, it is stated that the respondent did not pay the arrears, nor did he reply to the legal notice. However, notices remained unserved on the respondent.
5. It is also alleged by the petitioner that the respondent is in occupation of another premises No. 1 in respect of which the petitioner has filed an eviction petition and the same is pending before the III Additional Civil Judge in H.R.C. No. 1016 of 1975. However, it is made clear that there was no connection between the premises in question and the premises which is the subject matter of H.R.C. No. 1016 of 1975. Another allegation against the respondent is that he has been causing nuisance by pilling up the fuel and wood and by storing heaps of mud and wastage in the passage of the vacant space in the house to the detriment of not only the petitioner but also to the wall of the building. The petitioner has stated that the nuisance is causing untold misery and trouble to the petitioner personally. It is alleged that the petitioner needs the premises for the bona fide use and occupation of his daughter and also for the purpose of partition and division of family property among his children. It is stated that the petitioner is unwell and intends to divide the property to his children so as to avert future complications and in the interest of harmony in the house.
6. The petitioner has stated that the premises is reasonably and bona fide required for his use and occupation. It is specifically pleaded that the petitioner’s daughter was wedded to one M. V. Ramakrishnaiah, M.B.B.S. (M.S.) who is prosecuting his further studies in post graduate course at Victoria Hospital and that he is studying and staying along with his daughter in the house of the petitioner. It is stated that there is no harmony and cordial relationship among the women folk in the house of the petitioner because the daughter-in-law of the petitioner and the wife of the petitioner are not getting on well and are at loggerheads resulting in
frequent quarrels and thereby disrupting family harmony. It is the case of the petitioner that he intends to accommodate his daughter in the petition schedule premises and to keep aloof the daughter and his son-in-law in the interest of peace and tranquillity in the house. It is, therefore, stated that the premises in question is required for the use of his daughter. It is also urged that if an eviction is not granted against the respondent the entire family will be put to irreparable injury and loss and, if eviction is ordered, no prejudice will be caused to the respondent since he can seek separate accommodation elsewhere. It is also alleged that the respondent is having his own house in the same locality of Magadi Main Road.
7. The petitioner has made one more important allegation based on a development which took place subsequent to the filing of the eviction petition. It is alleged that the respondent has purchased a premises bearing Nos. 133 and 134 in Magadi Road Main consisting of a corner building opposite to the Corporation High School and Junior College. It is alleged that during the pendency of the petition, the petitioner came to know that the respondent has come into possession of a decently suitable residence for his use and occupation. It is also stated that the respondent is running a hotel called ‘Indira Bhavan’ since more than 14 years and that recently about 6 years back he purchased building bearing Nos. 132, 133 and 134 and in cross Door No. 132 having 3 vacant houses attached to the said numbers in his possession and, therefore, by an eviction, the respondent will not be subjected to any hardship or inconvenience.
8. The respondent has filed his statement of objections and, according to him, the rent of Rs. 42/- per month is in respect of the entire premises bearing No. 3 situated in III Cross, Rempapura Agrahara, Magadi Road, Bangalore, inclusive of the room which is the subject matter of the case filed by the petitioner in H.R.C. No. 1016 of 1975 which is pending. The respondent has denied that he was due to the petitioner Rs. 168/- towards arrears of rent from 1-7-1971 to 31-10-1971
and he has also denied arrears of rent of Rs. 1,092/- up to 30-9-1979. According to him, nothing is due to the petitioner by way of arrears. The respondent has denied the allegation that there is no connection between the petition schedule premises and the room which is the subject matter of H.R.C. No. 1016 of 1975 and has asserted that there is no separate tenancy and the said room is part of the petition schedule premises the total rent being Rs.42/- per month. The allegations of storing of fire-wood, fuel, heaps of mud and wastage in the passage of the vacant space and damage to the wall are denied by the respondent and that the premises is required for the bona fide use and occupation of the daughter of the petitioner is also denied. That the petitioner is not keeping good health is denied and the proposed partition is similarly denied. The respondent has denied knowledge of the wedding of the petitioner’s daughter with M. V. Rama-krishnaiah and that he is prosecuting bis post graduate studies at Victoria Hospital. The respondent has also denied knowledge of the petitioner’s son being a student of Law and staying along with the petitioner’s daughter in the petitioner’s house. At the same time, the respondent has stated that all these allegations are false, concocted and made with a view to evict the respondent at any cost. Again the respondent has stated that he is not aware of the alleged disharmony or quarrels prevailing in the family of the petitioner. According to the respondent, the petitioner is owning a number of tenaments and has been leasing out the same on higher rents as and when they became vacant whereas the respondent does not have alternative accommodation. Therefore, the respondent has pleaded that com-parative hardship is greater on the respondent than on the petitioner and has resisted the eviction proceedings.
9. Additional objections have also been filed by the respondent wherein it is denied that the respondent purchased premises Nos. 133 and 134, Magadi Main Road, corner building as well as building No. 1 having 3 houses in the compound, Rajasab Lane, 2nd Cross, Magadi Road, Bangalore. The respondent has gone to the extent of stating
that he has not purchased any house property after the institution of the eviction proceedings and that the respondent is running a hotel called ‘Indira Bhavan’ since more than 14 years in the building situated in the main road and that the rear portion of the said building is used entirely for the purpose of hotel business for storing materials. Again the respondent has denied that he is having a residential house in premises No. 134 and that the buildings bearing Nos. 133 and 134 had been purchased 6 years ago and that he is having 3 vacant houses in Cross No. 1 attached to the above numbers in his possession. Finally the respondent had denied the right of the petitioner to invoke the ground for eviction under S. 21(1)(p) of the Act.
10. After amendment of the eviction petition made in pursuance of the order passed by the trial Court on 29-7-1983, the respondent has filed one more statement of additional objections. The respondent has denied that the petitioner intends to accommodate his married daughter and that she is depending on him. It is also denied that the petitioner needs the schedule premises in order to keep aloof his son-in-law and restore peace in the house. The respondent has also asserted that neither the daughter, nor the son-in-law, of the petitioner is residing with the petitioner at all. The respondent has contended that even if the petitioner wants to house his daughter and son-in-law, there is sufficient space in the present house which is in the occupation of the petitioner and that the petitioner has kept vacant 2 tenements in his own house at Rangaswamy Temple Street, Balept, since two years after they were vacated. Lastly it is contended that the petition schedule premises is located in a slum area and that all the persons who are living “around are poor and the locality is highly conjested and there is no cleanliness in the locality including the petition schedule premises.
11. The trial-Court framed 12 issues and gave findings against the petitioner and dismissed the eviction petition.
12. What is noticeable in the impugned order is the conspicuous absence of separate
treatment of each issue in specific terms and the recording of findings. In a sense, it may be said that the disposal of the case by the trial Court is summary in character. An appreciation of the evidence on record discloses the fact that the married daughter of the petitioner and her husband who is a post graduate student are residing with the petitioner and that the family of the petitioner consists of 10 members. The present residence in which they live together is situated at 20th Cross Rangaswamy Temple Street, Bangalore City. The undisputed fact is that the petitioner has 2 sons and 4 daughters among whom one son and 3 daughters are married. The Ration Card and the voters list support the averment of the petitioner in regard to the strength of the family living in the house. The accommodation in the house consists of a ground-floor with a hall, bath room, staircase room and the first-floor having a verandah, dining hall, 2 rooms, kitchen and lavatory. There is evidence to show that the first son-in-law of the petitioner is residing with him along with his daughter. It is also in evidence that the said son-in-law by name Gangadhara Tilak has two children living with their parents in the house of the petitioner. The other son-in-law of the petitioner who is a medical graduate with an M.B.B.S. degree, having married the daughter of the petitioner in 1972 is not yet employed but has been pursuing post graduate studies at Bangalore. The third son-in-law who is married to the third daughter of the petitioner is running a provision stores, but not residing with the petitioner. The fourth daughter is living with the petitioner. The son of the petitioner is by name Shivaram got married in 1975. Considering the extent and nature of accommodation which the petitioner has in the house situated in 20th Cross Rangaswamy Temple Street, Bangalore’ City, and the total number of persons living in the house, considerations such as space ratio for each member of the family and the dependents besides the reasonable comforts of living to constitute the bona fide and reasonable requirement of the family of the petitioner, it is difficult to believe that the claim of the petitioner is unfair. Whether
some of the married members of the family of the petitioner are, in fact, living along with the petitioner even after marriage, cannot be decided on the basis of the high educational qualifications of the son-in-laws and the son of the petitioner. To surmise that such highly qualified persons would not venture to live together under the roof of the petitioner is a proposition which is too ludicrous to be accepted. I cannot subscribe to the hazardous presumption of the trial court based on the said assumption. The exigencies of the situation arose subsequent to coming into existence of the tenancy of the respondent. As the family expanded with marriages and the arrival of the progeny, the realities to the need for more accommodation took roots. As time advanced, the seriousness of paucity of accommodation unravelled itself beyond the enduring capacity of the petitioner and his family members. On the one hand was the limited capacity of the present accommodation and, on the other hand, was the increasing need of the multiplying family strength and necessity demanding reasonable comforts. It is needless to observe that when the strength of the family overtakes the accommodative capacity of the existing house, a situation is created wherein there is a craving for additional or separate accommodation. The two alternatives open to the expanded family are either to continue to bear the discomfiture and hardship of continuing in the congested house or to break-away from the present abode and to seek shelter in a separate house. In the realistic situation of overwhelming necessity, if the petitioner has chosen the path of seeking eviction of the respondent in his search for separate accommodation for some of the married members of his family, it would be unnatural to presume that the desire and the claim of the landlord is ill-motivated and unreasonable. The notion of reasonableness and bona fides has to be appreciated in the context of the peculiar facts of each case and it would be hazardous to resort to a mere hypothetical generalisation of any legal principle. The principle of the rule of law in order to be applicable ought to bear a reasonable nexus to the fact pattern of each case and there is no scope for a blind application of a general principle.
13. It is unsafe for the Court to position itself on assumptions not conclusively proved to hold that it is not possible to lend credibility to the assertion of the petitioner that his first son-in-law who is a post graduate student in medicine has remained unemployed for a long time. Such a conjecture cannot bear legal scrutiny. Official documents such as Ration Card and Voters’ list, unless proved by the respondent to be non-genuine, deserve to be relied upon for the purpose of assertaining the number of persons in the family of the petitioner living under the same roof. The order of the trial Court discloses a three pronged assumptions of the trial Court that it is doubtful whether one of the daughters-in-law of the petitioner does not own a house in Malleswaram, Bangalore, where the son and daughter-in-law of the petitioner are supposed to be residing, the size and capacity of the house of the petitioner and the educational qualifications of one of the sons-in-law of the petitioner. I am afraid that the basis on which the trial Court has reached the conclusion that the claim of the petitioner for eviction of the respondent from the premises in question is not bona fide and reasonable, cannot be accepted. There is no evidence on record to draw the inference that the son of the petitioner by name Shivaram and also ‘the daughter of the petitioner by name Devaki are not at all residing with the petitioner. An important aspect of the case is in relation to the reason advanced by the petitioner for eviction to the fact that there is ill-will or misunderstanding between the petitioner’s eldest son and his wife on the one hand and the wife of the petitioner on the other hand. The misunderstanding is disbelieved by the trial Court on the assumption that the petitioner’s son Shivaram and his wife are not residing with the petitioner at all and, therefore, the theory of misunderstanding alleged falls to the ground. 1 have taken the view already that there is no material on record to disbelieve the petitioner that his son Shivaram and his wife are in fact living along with the petitioner from the inception of the marriage. Strangely enough, the trial Court’ has observed in para 12 of its order as follows:
“….. The court could have accepted
the case of the petitioner if he had come forward with sincerity, that he wants the petition schedule premises for the occupation of his daughter Devaki Rani and her husband Ramakrishna, even though they are residing away from the petitioner. However such a case is not put forward by the petitioner. There is absurdity in the case put forward by the petitioner. Hence, the requirement of the petitioner for the occupation of the petition schedule premises is not reasonable.”
14. The appreciation of evidence and the legal premise on the basis of which the trial Court has rejected the eviction petition are all set at nought by the above observations. It appears that the trial Court would have granted an order of eviction for a mere assertion by the petitioner that the premises is required for the bona fide use and occupation of his daughter Devaki Rani and son-in-law Ramakrishna though they may be residing in a different house. The petitioner seems to have been deprived of an order of eviction for not having taken such a pleading. The manner in which the entire case has been dealt with does not conform to acceptable logic and modality.
15. As regards the allegation of nuisance, the trial Court has observed as follows:
“Mere causing of inconvenience will not amount to nuisance or annoyance. To constitute nuisance the degree of discomfort caused to the occupants of other houses must be more intensive in degree than a mere inconvenience. The other occupants cannot also be too sensative about the manner of enjoyment of the premises in their occupation. What is required is the tenant should be guilty of nuisance or annoyance which means that the act complained of must be deliberately or purpose done by the tenant who is sought to be evicted under the provisions of S.21(1)(d) of the Karn. Rent Control Act. There is absolutely no evidence to hold that there is deliberate act on the part of the respondent by dumping of fuel wood or wastage. When such is the situation, it cannot be held that even assuming that the respondent had kept fuel wood in the open space at
some time, he is causing nuisance or annoyance to the occupiers of the other tenements since there is no evidence to show that the other occupants have suffered nuisance or annoyance by the act of the respondent. In the result, I hold that the respondent is not liable to be evicted under S. 21(1)(d) of the Karn. Rent Control Act.”
16. The findings of the trial Court on the question of nuisance appear to be lop-sided. In this regard, it is necessary to refer to Section 21(1)(d) of the Act which reads thus:–
“21. Protection of tenants against eviction.– (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or other authority in favour of the landlord against the tenant:
Provided that the court may on an application made to it, make ar order for the recovery of possession of a premises on one or more of the following grounds only, namely:-
(a) to (c) xxx xxx xxxx
(d) 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.”
17. This provision refers to the following
situations:–
(i) eviction for the reason 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; and
(ii) eviction for the reason that the tenant or any person residing with the tenant has been convicted of using the premises or allowing the premises to be used for immoral or illegal purposes.
We are concerned only with the first proposition of law and the question is whether
the respondent, as a tenant, residing with other tenants in the premises has been guilty of a conduct which is a nuisance or annoyance to the adjoining or neighbouring occupiers. What has to be established by the landlord is the fact that the respondent has been guilty of conduct which is a nuisance or annoyance to the neighbouring occupiers. In the instant case, the dumping of fuel wood or wastage in the passage meant for movement of the tenants is admitted; but what the trial Court holds is that such dumping of fuel wood or wastage is not a deliberate act. The trial Court has also taken the view that mere causing of inconvenience will not amount to nuisance or annoyance and in order to constitute nuisance, the degree of discomfort caused to the occupiers of other houses must be more intensive in degree than a mere inconvenience and that the other occupants cannot also be too sensitive about the manner of enjoyment of the premises in their occupation. The most significant observation which reflects a misdirection of the trial court is that the tenant should be guilty of nuisance or annoyance and that the act complained of must be deliberately or purposely done by the tenant who is sought to be evicted under the provisions of Section 21(1)(d) of the Act.
18. It may be said that the word “nuisance” or “annoyance” referred to in Section 21 (1)(d) of the Act is private nuisance of tortious nature. The liability for nuisance is based on the principle that no one shall unreasonably or unnecessarily interfere with the reasonable comforts and convenience of life of another person. Nuisance may be in the form of obstruction to right of passage. In order to be actionable, it has to be a persisting nuisance. The requirement of law is that the obstruction if unjustified is actionable if it affects the right to passage of the neighbouring tenant thereby depriving the affected person of reasonable comfort and convenience of life in the premises. In essence, the theme is one of peaceful co-existence and non-interference with each other’s reasonable comfort and convenience of life. Private nuisance which falls within the ambit of tort liability belongs to the category of unintentional wrongs. In short, absence of the
intention is not relevant for the purpose of determining liability for private nuisance. All that could be said is that if the act is deliberate, it entails liability which is more grave in consequences. Thus, I hold that the nuisance complained of should be proved to be deliberate is without foundation and has no legal warrant. Plainly the mischief of nuisance or annoyance of the nature with which we are presently concerned, does not fall within the category of annoyance caused to hyper-sensitive persons. There is no material to hold that the respondent has proved that the neighbouring tenants are hypersensitive and, therefore, the allegation ought not to be taken notice of. It is a simple instance of causing continuing obstruction which amounts to private nuisance to the neighbouring tenants by dumping-fuel wood or wastage in the common passage. There is nothing to show from the evidence on record that the nuisance is of such a mild nature that it cannot be regarded as either nuisance or annoyance at all. There is no doubt about the legal principle that the law does not take notice of the demands of hyper-sensitive persons and that a person is expected to guard against only reasonable probabilities and not against fantastic possibilities. At the same time, it may be said that a reasonable and prudent person is presumed to be aware of the ordinary, natural and probable consequences of his own conduct.
19. Applying the aforesaid principles to the facts of the case, I hold that the allegation of nuisance has been proved by the petitioner.
20. Having regard to the overwhelming necessity for separate accommodation and the suffering which the petitioner and his family members have been going through all along, I am of the view that greater hardship will be caused to the petitioner and his family members by declining an order of eviction. There is no evidence to reach the conclusion that the respondent made any attempt to secure alternate accommodation at least during the pendency of the proceedings, if not earlier. This is one of the factors which weighs against the respondent. I do not think that greater hardship would be caused to the. respondent by passing an order of eviction.
21. In the light of the findings which I have given already, it is unnecessary to go into the other points raised in this revision petition.
22. The learned counsel appearing for the respondent has placed reliance on the following decisions:
.
None of these decisions is applicable to the facts of the instant case.
23. In the result, for the foregoing reasons, the Civil Revision Petition is allowed, the impugned order is set aside and the eviction petition is allowed. It is hereby ordered that the respondent shall vacate and deliver vacant possession of the premises in question to the petitioner within a period of six months from the date of this order. In the circumstances of the case, there will be no order as to costs.
24. Petition allowed.
