RAFAT ALIversusSUGNI BAI AND ORS.

A                                RAFAT ALI
                                     v.
                             SUGNI BAI AND ORS.
                                                                                    ,
                              NOVEMBER 18, 1998

B               [S. SAGHIR AHMAD AND K.T. THOMAS, JJ.]


         Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act,
    1960 : Sections 10(2), (iii), (iv), 20 and 22.

c        Reyision-Power of High Court-Scope and extent of-Eviction
    proceedings-Grounds taken by landlord-Findings given by Rent Controller
    against landlord-Findings upheld by Appellate authority-Reversal of
    concurrent findings by High Court in revision-Held not justified

          Rent Control-Eviction on the ground of nuisance-Difference between
D   public and private nuisance-Section 10(2)(iv) envisages private nuisance
    and not public nuisance-Damage must be proved in case of nuisance-
    Damage to amount to actionable nuisance must be substantial.

         Rent control-Eviction-Ground-Damage caused by tenant to the
E building-Extent required for eviction-Some impairment caused to building
    is not enough-Damage complained of must have lessened the utility or
    value of the building.

         In eviction proceedings initiated by the respondent-landlord against the
    appellant-tenant, under the provisions of Andhra Pradesh Buildings (Lease,
F   Rent and Eviction) Control Act, 1960, the Rent Controller gave his findings
    against the landlord on all the three grounds taken by him.

          Landlord's ground of default in payment of rent was found to be an
    afterthought His plea of alleged nuisance caused by tenant to other occupiers
    of the buildinf: by running lathe machines late in the night was rejected on
G   the gropnd that the appellant was running his business with the same
    machines right from the beginning. Regarding the alleged damage caused          '
    to the building by the tenant, the Rent Controller, on the basis of the
    Commissioner's report, found that due to use of machinery by tenant there
    was no damage to roof and walls and a hole caused in the flooring for
    inserting pipe was only trivial not affecting the building. The appellate
H                                        20
                                  RAFATALI v. SUGNIBAI                              21
        authority also found, in concurrence with the findings of the Rent Controller,    A
        that the landlord failed to make out any of the grounds. On revision, the High
        Court reversed the concurrent findings of the Courts below and passed an
        order of eviction in favour of the landlord. Hence this appeal by tenant.

              Allowing the appeal, this Court
                                                                                          B
              HELD: 1. It was not open to the High Court to suhstitute the findings
        of the lower courts with its own findings wh.ile exercising the limited
        supervisory jurisdiction. The appellation given to Section 22 of the Andhra
        Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 makes it
        unmistakably clear that the power conferred thereunder is revisional which
        means, it is a power of supervision. It is well neigh settled that a revisional   C
        jurisdiction cannot be equated with appeal powers in all its parameters. The
        power to call for and examine the records is for the purpose of the High
        Court to satisfy itself as to the "legality, regularity or propriety" of the
        order of the lower authority. Even such a widely worded frame of the Section
        may at best indicate that the revisional powers are not so restricted as in       D
        the enactments wherein the words are not so widely framed. Nonetheless,
        they remain in the realm of supervisory jurisdiction. In this case the High
        Court has manifestly crossed its jurisdiction. (24-D-E-F)

              Sar/a Ahuja v. United India Insurance Company Limited, JT (1998) 7
        SC 297 and Sri Raj Lakshmi Dyeing Works v. Rangaswamy, (1980) 4 SCC               E
        259, referred to.

              2. Though the word "nuisance" is not defined it can be inferred from
        the context that what is meant therein is the actionable nuisance which is
        recognised in Common Law. Nuisance as understood in law is broadly divided
        into two classes-public nuisance and private nuisance.                            F
              The former consists of some acts or omissions which result in violation
        of rights which one enjoys in common with other members of the public. But
-"'"'
        the latter i.e. private nuisance, is one which interferes with a person's use
        and enjoyment of immovable property or some right in respect of it.
                                                                             (26-D-EJ     G
              3. 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 neighbourhood". Perhaps in a wide
        sense any industrial activity may create some sound while such activities are     H
    22                        SUPREME COURT REPORTS (1998] Sf.!PP. 3 S.C.R.

A   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 nuisance must
    be of a rea!:onably perceptible degree. [27-C-D-El

         4. Suffering of damage must be proved in a case of nuisance unless it
B   can be pre:sumed by law to exist. But the damage to amount to actionable
    nuisance must be substantial or at least of some significance.[26-H; 27-Al

          Halsbury's Law of England, page 102 & 312 (Vol 34 4th edn.), referred
    to.

C         5. For damage to the building to amount to a ground for eviction, its
    proportion must be as delineated in clause (iii) of the Section 10(2) of the
    Act. All ads of waste do not amount to a ground for eviction. The word
    "likely" in clause (iii) must be understood as a condition which is reasonably
    probable that such acts would cause impairment to the value or utility of the
D   building. Therefore, 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". [28-B-C)

E         Om Pal v. Anand Swarup, [19881 4 SCC 545, referred to.

          CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5777of1998.

          From the Judgment and Order dated 2.1.98 of the Andhra Pradesh High
    Court in C.R.P. No 1750of1997.

F         D. Ramakrishna Reddy and Ms. D. Bharathi Reddy for the Appellant.

         Subodh Markandeya, R.N. Sharma, Feroza Bano, Ms. Chitra Markandeya
    and D. Mahesh Babu for the Respondents.

          Th·~ Judgment of the Court was delivered by
G
          THOMAS, J. Leave granted.

          A ouilding situate at Mahboob Gunj, Hyderabad belonged to one Babu
    Lal. He leased it out to the appellant in 1970 wherein appellant has been
    running a business by name Mis Royal Agro Industries. Lathe and machinery
H   have be1~n installed therein for the purpose of the business. Babu Lal died
                   RAFAT ALI v. SUGNI BAI [THOMAS,J.]                        23
leaving behind him the present respondents as his legal heirs who are his          A
widow and children. In the year 1988 respondents/landlords launched a
litigation against the appellant for evicting him from the leased premises.
Though the respondents failed in the Rent Control Court as well as in the
Appellate Authority they succeeded in the High Court of Andhra Pradesh,
where in a revision the concurrent findings were reversed and an order of          B
eviction was granted in favour of the landlords. Hence, appellant has filed this
appeal by special leave.

       Three distinct grounds have been set up by the respondents in their
petition filed under the provisions of Andhra Pradesh Buildings (Lease, Rent
and Eviction) Control Act, 1960 (For short 'the Act'). They are: (I} that the      C
tenant had committed default in paying rent of the building from 1.11.1986 to
30.4.1988, (2) that the tenant committed acts of waste by which damage has
been caused to the building, (3) that the tenant has been committing acts of
nuisance to other occupants of the buildings in the neighbourhood.

      All the three grounds were found against the respondent by the Rent          D
Control Court which dismissed the petition for eviction. When respondents
filed appeal under Section 20 of the Act, the Appellate Authority also found,
in concurrence with the findings of the Rent Control Court, that the landlord
failed to make out any one of the grounds. The appeal was accordingly
dismissed. It was when respondents moved the High Court in revision under
Section 22 of the Act that they succeeded as a learned single Judge interfered     E
with the concurrent findings regarding all the three grounds.

     Learned single judge has stated as follows in the concluding part of the
impugned order.

        "The findings of the Courts below are quite arbitrary, perverse and        F
        capricious. The orders under challenge cannot be said as free from
        legal lacunae. The Courts failed to take into consideration the events
        started subsequent to leasing out the premises, namely, causing
        nuisance prior to the filing of eviction petition. The evidence given
        clearly establishes that the tenant was a defaulter, had caused damage
        to the premises and causing nuisance to the landlords and other            G
        occupiers. Having found that the orders under challenge suffer from
        illegality, the same deserves to be set aside. Accordingly, the CRP is
        allowed and the orders under challenge are set aside and consequently,
        the eviction sought by the landlords is granted."

      It is contended before us that learned single judge made those               H
    24                         SUPREME COURT REPORTS [1998] SUPP. 3 S.C.R.

A observations without considering the reasoning of the fact finding courts and
    without adverting to the evidence and without keeping within the bounds of
    revisional jurisdiction conferred by Section 22 of the Act. Learned counsel for
    the respondents, on the other hand, made an endeavour to show that the
    revisional powers under the Act are not so limited as in other similar enactments
B   and that the High Court has wide powers to interfere even with the concurring
    findings of fac1t, and looking from that angle the High Court has not acted
    beyond its jurisdiction.

            Section 22 of the Act reads:
            "22. Revision:-(1) The High Court may, at any time, on the application
c           of any aggrieved party, call for and examine the records relating to any
            order passed or proceeding taken under this Act by the Controller in
            execution under Section 15 or by the appellate authority on appeal
            under Section 20, for the purpose of satisfying itself as to the legality,
            regularity or of propriety of such order or proceeding, and may pass
            such order in reference thereto as it thinks fit.
D
            (2) The costs of and incident to all proceedings, before the High Court
            under sub-section (I), shall be in its discretion."
         The appellation given to the Section makes it unmistakably clear that
  the power conferred thereunder is revisional which means, it is a power of
E supervision. It is well neigh settled that a revisional jurisdiction cannot be
  equated with appeal powers in all its parameters. The power to call for and
  examine the records is for the purpose of the High Court to satisfy itself as
  to the "legality, regularity or propriety" of the order of the lower authority.
  Even such a widely worded frame of the Section may at best indicate that the
  revisional pow1ers are not so restricted as in the enactments wherein the
F words are not :;o widely framed. Nonetheless, they remain in the realm of
  supervisory jurisdiction. In a recent decision we had occasion to consider the
  scope of revisional jurisdiction under certain Rent Control enactments vide
  Sar/a Ahuja v. United India Insurance Company Limited, JT (1998) 7 SC 297.
  Reference was then made to a decision wherein similar words used under
G Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960
  were considered [vide Sri Raj Lakshmi Dyeing Works v. Rangaswamy, [1980)
  4 SCC 259). A two judge bench has observed therein that "despite wide
  language employed in the Section, the High Court quite. obviously should not
  interfere with the findings of fact merely because it does not agree with to
  the finding of the subordinate authority." After adverting to it we have stated
H in Sar/a Ahuja:
                    RAF AT ALI v. SUGNI BAI [THOMAS, J.)                     25
        "The High Court in the present case has re-assessed and re-appraised        A
        the evidence afresh to reach a different finding as though it was
        exercising appellate jurisdiction. No doubt even while exercising
        revisional jurisdiction, a re-appraisal of evidence can be made, but
        that should be for the limited purpose to ascertain whether the
        conclusion arrived at by the fact finding court is wholly unreasonable."    B
         Coming back to the impugned order it is pertinent to notice that the
Rent Control Court, while dealing with the first ground i.e. default in payment
of rent from 1.11.1986 to 30.4.1988 has pointed out the averments of the
landlords in their petition that rent of the building was Rs.250 per month till
30. I 0.1985 and thereafter the rent was enhanced to Rs.650 per month from          C
1. I I .1985 onwards and that the tenant committed default in paying rent at the
enhanced rate from I. I l .1986. Petition for eviction was filed by the landlords
on 4.5.1988. Appellant repudiated the case of the landlord regarding such
enhancement. According to him the rent remained Rs.250 per month and he
paid it without default till March 19. 1988, and when he tendered rent for the
next month (April) the landlord refused to accept as they wanted the tenant         D
to vacate the building. He was then compelled to issue a notice to the
landlords on 30.4.1988 complaining of such refusal. It was while replying to
the said notice that the landlords have mentioned, for the first time, that rent
of the building was Rs.650 and that it was not paid from I. I I .1986 onwards.
                                                                                    E
       Rent Control Court has considered the evidence on record regarding
that dispute in detail. The reasoning of the Rent Controller that if there was
enhancement of monthly rent to Rs. 650 from 1-11-1985 the landlords would
have mentioned that fact in the Ext. R-73 reply which they sent to the
appellant on 6-5-1988. The absence of such a fact in the said reply notice
when taken along with the fact that landlord amended the original petition F
claiming rent at the enhanced rate only after a lapse of one year from the date
of institution thereof persuaded the Rent Control Court to conclude that it
was an afterthought. The court also relied on Ext. R-74 to R-82 (assessment
orders and the tax returns under the Income Tax Act, 1961 for the period
starting from 1985-86) supported by the certified copies of statements of G
 income and expenditure account in which monthly rent of Rs. 250 was
mentioned for the relevant period. The appellate authority has also adverted
to the above materials. The counterfeits (P-1 to P-5) produced by the landlords
did not give a good impression as to its genuineness on both the authorities.
The appellate authority felt that they were concocted for the purpose of
evicting the tenants.                                                           H
    26                          SUPREME COURT REPORTS (1998] SUPP. 3 S.C.R.

A         For interforing with the findings made on the above reasoning learned
    Single Judge has, unfortunately, used only one sentence which is the following:

            "If we c:ompare the evidence adduced in this case and reading of the
            same by both the courts below, it can be said without hesitation that
            the courts below are not justified in ignoring the evidence available
B           which warrants this court to hold that the tenant was a defaulter and
            he had caused nuisance."
          Learned Single Judge has committed. a jurisdictional error in upsetting
    the concurrent finding in such a manner as it has been done. Of course in
    that sweep learned Single Judge covered the nuisance aspect also.
c        It is clause (iv) of Section 10(2) of the Act that makes nuisance as a
    ground for eviction. It is worded like this:
            "That the tenant has been guilty of such acts and conduct which are
            a nuisance to the occupiers of other portions in the same building or
D           buildings in the neighbourhood."

          Though the word "nuisance" is not defined it can be inferred from the
    context that what is meant therein is the actionable nuisance wliich is recognized
                                                                                         1
    in Common Law. Nuisancs;_as understood in law is broadly divided into two
    classes - publk nuisance ind private nuisance. The former consists of some
E   acts or omissions which result in violation of rights which one enjoys in
    common with other members of the public. But the latter i.e. private nuisance,
    is one which interfere with a person's use and enjoyment of immovable
    property or some right in respect of it.

        In Halsbury's Laws of England (Vol. 34 of the fourth edition at page 102)
F essentials of common law of nuisance arc mentioned as under :
            "309: Both unlawful act and damage necessary. Jn order to constitute
            a nuisance there must be both (I) an unlawful act, and (2) 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
G           nuisance.

                for the purposes of the law of nuisance, an unlawful act is the
            interfrrence by act or omission with a person's use or enjoyment of
                                                                                         {

                                                                                             -
            land or some right over or in connection with land."

H         Suffering of damage must be proved in a case of nuisance unless it can
                         RAFA! ALI v. SUGNI BAI [THOMAS, J.]                      27
      be presumed by law to exist. But the damage to amount to actionable nuisance       A
      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 Halsbury's
      Laws of England is worth extracting in this context:

             "312. Damage essential. Damage, actual, prospective or presumed, is         B
             one of the essentials of nuisance. Its existence must be pwved, 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    C
             evanescent."

            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 neighbourhood". Perhaps in a wide            D
      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
      nuisance must be of a reasonably perceptible degree as pointed out earlier.        E

             Rent Control Court considered landlords' case regarding nuisance.
      Landlords said that the tenant was quarreling 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          F
      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 the filing of the eviction petition at any
      time against the tenant that he caused damage to the building." On the other
      hand, the Rent Control Court noticed that machinery was installed in this          G
      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.
                                                                                         H
    28                         SUPREME COURT REPORTS [1998] SUPP. 3 S.C.R ..

A         The third ground for eviction is related to causing damage to the
    ~uilding. For damage to the building to amount to a ground for eviction, its
    proportion must be as delineated in clause (iii) of ~ection I 0(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."
B
          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
C   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) 4 SCC 545, the Court, while considering a similarly worded
D   clause in a1nother Rent control enactment, has observed thus:

            "In order to attract Section ! 3(2)(iii) the construction must not only
            be one affecting or diminishing the value or utility of the building but
                                                                                        1
            such impairment must be of a material nature i.e. of a substantial and
            significant nature. When a construction is alleged to materially impair
E           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."                                                        '       '

F          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
G   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."

          Both the fact finding courts found that the above items of damage are
H only trivial and will not affect the building. But the High Court found that "the
                   RAFAT ALI v. SUGNI BAI [THOMAS, J.]                     29
landlords proved that the tenant caused damage to the demised premises by        A
causing holes and leaving spaces between the shutter and the wall as seen
from the Commissioner's 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.

      For the aforementioned reasons we are unable to sustain the impugned       B
judgment of the High Court which has manifestly crossed its jurisdiction. We,
therefore, ailow this appeal and set aside the impugned judgment.

T.N.A.                                                       Appeal allowed.