V. K. Mehrotra, J.-
This is a plaintiff's revision under section 115 of the Code of Civil Procedure.
The plaintiff-applicant filed a suit inter alia for ejectment of the defendant-opposite party from house no. 511, Meerpur Cantt., Kanpur. The relief of ejectment was sought on the ground that the defendant had wilfully defaulted in payment of rent, he had affected material alterations and caused damage to the premises in suit and further that he had created nuisance. These allegations were denied by the defendant. The Addl. Judge, Small Causes, Kanpure who tried the suit found in favour of the defendant on the question of alleged default in payment of rent as well as in regard to the allegation that he had materially altered the accommodation and caused damage to it. The learned Judge, however, came to the conclusion that the defendant had created nuisance and was on that account liable to be ejected from the premises in question. Aggrieved, the defendant challenged the decree in a petition for revision under section 25 of the Provincial Small Cause Courts Act. The learned District Judge, who heard this revision went into the evidence on record and came to the conclusion that the plaintiff-applicant had failed to prove that the defendant had created nuisance. Setting aside, therefore, the finding in that regard recorded by the trial Judge, the learned District Judge dismissed the suit for ejectment of the defendant. Hence, the present revision before this Court.
Having heard Sri S. K. Varma appearing for the plaintiff-applicant at "some length as also Sri Vinod Swarup on behalf of the defendant-opposite party I am of opinion that the present revision deserves to be dismissed.
It is settled that while exercising jurisdiction under section 25 of the Provincial Small Cause Courts Act, it is not open to the revisional Court to re-appreciate the evidence and record findings in regard to question of fact different from those recorded by the trial Judge. In that respect the decision of the learned District Judge cannot be sustained. It is clear from the perusal of the judgment that he had gone into evidence afresh and arrived at a conclusion different from that recorded by the trial Judge on the question whether the defendant had created nuisance. This he could not do on account of the limited jurisdiction that he possessed under section 25 of the Provincial Small Cause Courts Act.
The question, however, that remains to be seen is whether the plaintiff-applicant can still be said to be entitled to a decree for the ejectment of the defendant-opposite party. As seen earlier, the sole basis upon which the trial Judge proceeded to direct the ejectment of the defendant was that he had created nuisance and had thus rendered himself liable to be evicted. The facts in this regard found to have been established were, to quote the words of the trial Judge himself, that
"it is established that the defendant created trouble in paying the arrears of rent and also become abusive to the plaintiff's'mukhtaram' and did not accede to the request of removing the unauthorised constructions. The attitude of the defendant under these circumstances was hostile towards plaintiffs 'mukhtaram'. This certainly amounts to nuisance and it is not essential that abuses should have been given to the plaintiff."It may be added that even according to the plaintiff's own case, she was residing away from Kanpur, at Calcutta.
The question whether the defendant had created nuisance is a mixed question of fact and law. The finding about the action of the defendant is a finding about facts but whether an inference of nuisance can be drawn from it, is a question of law. Under section 14 of U.P. Act X of 1952, the suit for the eviction of a tenant could be brought by the landlord without the permission of the competent authority, if the tenant had, inter alia, created nuisance.
The bar on the right of a landlord to sue for the ejectment of his tenant on the ground of nuisance could only be lifted where on facts found by a court of fact, it could be said that in law it amounted to nuisance. In Jayanti Prasad and others v. Trilok Chand Jain and others (1977 All India Rent Control Journal 476), a Division Bench of this Court observed that, "the word nuisance is a word of wide import. It will include all which in any way prejudices the right of an owner of a property or a thing to enjoy the benefit thereof. A nuisance also will be one which prejudicially affects the physical health or hurts the legitimate emotion of a person. of course, the word "nuisance" used in sub-section (1) (d) of Section 3 of U.P. Act No. III of 1947 has not been used in the sense of physical injury or emotional injury but it has been used in the first sense i.e. preventing the owner from using for his own benefit and enjoyment property or thing owned by him...............'' The decision aforesaid was rendered in respect of a case arising under U. P. Act III of 1947. Similar consideration, in my opinion, will be applicable to "nuisance as used in section 14 of U. P. Act X of 1952.
Even on the facts found by the trial Judge in the present case, it would be obvious that the finding cannot be said to amount in law to creation of nuisance on the part of the defendant-opposite party. That being the position, the trial Judge had no jurisdiction to entertain and decree a suit for the eviction of the defendant-opposite party without the permission of the competent authority under section 14 of U.P. Act X of 1952. The decree for eviction, therefore, passed by che trial Judge was clearly without jurisdiction. In these circumstances, this Court will not restore an order which is palpably without jurisdiction.
In the result, the application in revision fails and is dismissed with costs.
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