S K ROY CHOWDHURY Vs. AFROJ JAIAN BEGUM

JUDGEMENT

(1.) The facts in this case are shortly as follows : The appellant S. K. Roy Chowdhury, purchased premises No. 149. Lowest Chitpore Road Calcutta, which is a large premises containing about 50 rooms. These rooms have been let out to various tenants and the respondent, Afroj Jahan Begum, was the tenant in respect of room No. 37 on the second floor of the said premises at a monthly rent of Rs. 45/- calculated according to the English Calendar month. Actually, the said respondent's father, since deceased, became a tenant many years ago and after the purchase by the appellant, the respondent attorned to him and the appellant accepted her as a tenant, in as much as the respondent's father was dead. The appellant determined the tenancy of the respondent by a notice of adjustment dated 21st, November, I957 calling upon her to quit and vacate the said premises demised 10 her, on the expiry of the last day of December, 1937. As she did not comply with the notice, a suit was instituted in the Court below, in or about February 1958 for a decree for possession. The grounds for ejectment were several and were as follows : The first ground was that: the premises was let out to her for residential purpose only but had been used for manufacturing and business purposes of more than four months without the consent of the landlord. The second ground was that the respondent was guilty of conduct which is a nuisance and cause of annoyance to the neighbours including the landlord, inasmuch as the respondent had been manufacturing zarda at the premises with tobacco leaves and the process of manufacturing surcharges the atmosphere of the locality with pungent smell causing nasal irritation breathing troubles and also caused malarial, deterioration of the condition of the premises by the constant hammering of tobacco on the roof of the premises. The third ground was, that the defendant had been guilty of acts contrary to the provisions of clause "0" of section 103 of the Transfer of property Act. The respondent contested the suit and at the hearing five issues were raised which are follows :

(2.) So far as Issue No, 1 is concerned, it was held that the notice was legal, valid and sufficient. "With regard to Issue No. 2, it was held that inasmuch as the premises were held by the respondent and her predecessor-in-title for the avowed purpose of manufacturing zarda which purpose was known to the landlord, it must be held that the tenancy was for the purpose of manufacture and, therefore, it had not been used for purpose other than for which it was let out. With regard to Issue No. 3, it was held upon the evidence adduced by both the parties that the conduct of the respondent did not amount to nuisance, nor did it cause annoyance to the neighbours and the landlord. With regard to Issue No. 4, it was held that the allegations of waste, negligence and material deterioration of the condition of the premises had not been proved. Accordingly this issue was also held in favour of the tenant and against the landlord. The result was that the suit was dismissed, because in view of the findings on issuer Nos. 2 to 4 it was held that the respondent, was protected under the provisions of the West Bengal Premises Tenancy Act, 1956. It is against this judgment and decree that this appeal is directed.

(3.) Before us, Mr. Mitra, appearing on behalf of the appellant landlord, conceded Chat in view of the law, as has been developed recently, he is unable to say that the notice given was valid or in accordance with law. Thai being so, he was prepared to have the appeal and suit dismissed upon this ground alone, provided that the other palms were left open, in case of future litigation between the parties. We thought that this was a very reasonable offer to make, but unfortunately, Mr. Mukherjee, appearing for the respondent said that his instructions were not to abandon the advantage of the findings on the other issues, which were in his favour, Consequently, we are compelled to go into those issues. So far as Issue No. 2 is concerned, "we agree with the findings of the Court below. The appellant had only purchased the premises in 1951, For a long time before that, the respondent's father bad been a tenant there in respect of the said room and had been carrying on business in manufacturing zarda. It is, therefore, too late in the day to say that the premises were taken for the purposes of residence or it was being used for a purpose other than the purpose for which it was let out. So far as Issue No. 4 is concerned, we also agree with the view and the conclusions reached by the Court below, namely, that there was not sufficient evidence of waste negligence or material deterioration, of the condition of the premises, The premises was inspected and cracks wore found in the roof but the appellant did not call expert evidence to show how the cracky have occurred or to connect the cracks with the alleged hammering on- the roof of tobacco leaves. We are, therefore, left with issue No. 3. The learned Judge in the Court below has considered the evidence placed before it, and has come to the conclusion that the appellant had failed to prove that the conduct of the respondent amounted to nuisance or caused annoyance to the neighbours and the landlord. So far as the landlord is concerned, be is perhaps right, because the landlord does not reside in the said premises, but then his agent has an office there and his durwan resides there and I shall presently show that both of them have made out a case on behalf of the appellant. But so far as the neighbours are concerned, which includes some of the other tenants of the said premises as also of the neighboring premises, we think that there has been sufficient evidence to show that there was nuisance and annoyance. I shall presently show that there was no reason whatsoever to reject that, evidence , and that the evidence Called on behalf of the respondent is practically useless. First of all, I have to refer to section 13(1) (e) of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as "the said Act"). Section 13(1) provides that notwithstanding anything to the contrary in any other law no order or decree for the recovery of possession of any premises shall be made by any Court in favour of the landlord against a tenant except on one or more of the grounds mentioned therein. Clause (e) is one of such grounds and runs as follows :