Tenant Must Come with Clean Compliance: Bombay High Court Upholds Eviction on Grounds of Rent Default, Unauthorized Construction, and Nuisance

“No Cross-Objection Needed Where Decree Is in Favour—Findings Can Be Reversed If Evidence Justifies”:  In a detailed and significant ruling Bombay High Court (Justice N.J. Jamadar) dismissed a tenant’s writ petition challenging an eviction decree passed on multiple grounds, including default in rent payment, unauthorized construction, change of user, and nuisance.

The judgment, arising from Writ Petition No. 5547 of 1998, invoked the Court’s supervisory jurisdiction under Article 227 of the Constitution and reaffirmed the binding obligations of tenants under the Bombay Rent Act, 1947. It also provided a clear interpretation of Order 41 Rule 22 CPC, holding that a respondent can challenge findings without filing a cross-objection, so long as the decree is in his favour.

“Tenant Was Neither Ready Nor Willing—Non-Compliance with Section 12(3) Fatal to Tenancy”

The petitioner, Somnath Tukaram Kuber, tenant of a chawl unit in Solapur, was served with a statutory notice dated 04 March 1989 for arrears in rent and “permitted increase.” Despite the opportunity granted under Section 12(3) of the Bombay Rent Act, the tenant failed to tender rent within the statutorily mandated one-month period, nor did he deposit rent, interest, and costs before the first hearing.

Rejecting the plea that rent was later sent via money order and subsequently deposited irregularly during the trial, the Court found no merit in the claim of "readiness and willingness." Justice Jamadar observed:

“The default in payment of rent, coupled with non-compliance of the provisions contained in Section 12 of the Act, 1947, entailed the consequence of forfeiture of the tenancy. In the light of these hard facts, no other inference is plausible.” [Para 17]

Unauthorized Construction and Change of User Proven—Burden of Proof Rests on Tenant

While the trial court had dismissed other eviction grounds—such as erection of permanent structures, change of user, and nuisance—the District Judge reversed these findings, despite no cross-objection filed by the landlord.

The High Court held this approach was fully in accordance with law. Citing Saurav Jain v. A.B.P. Design (2022) and S. Nazeer Ahmed v. State Bank of Mysore (2007), the Court clarified:

“It is not necessary for a respondent to file a cross-objection if the decree is wholly in his favour. He may still assail findings that are adverse to him to support the decree.” [Para 22–26]

On merits, the Court found that the tenant was running a brisk hotel business from what was originally a residential unit, and had erected tin sheds on fixed iron angles, thereby constituting permanent structures.

“In the absence of proof that such changes were made with the landlord’s written consent, the grounds of change of user and unauthorized structure stood clearly established.” [Para 31]

Hotel in Residential Chawl Caused Nuisance—Running Furnace, Waste, and Noise Valid Grounds for Eviction

The Court also upheld the nuisance ground, based on evidence and site inspection reports, noting:

“When the adjoining tenements were being used for residential purpose, the running of the hotel with a furnace on the rear side and the resultant waste and din... caused annoyance to the ordinary comfort and enjoyment of the neighbouring premises.” [Para 32]

The tenant’s claim that the landlord had failed to prove when the change of user or structure occurred was rejected. The Court held that it was the tenant’s burden to prove consent or legal justification.

Appellate Powers Under Order 41 Rule 22 Are Not Subordinate to Procedural Formalities

One of the key legal takeaways from this ruling is the Court’s reiteration that procedural rules cannot defeat substantive justice. The tenant had contended that in the absence of a cross-objection, the District Judge could not have reversed the trial court’s negative findings on additional eviction grounds.

Rejecting this argument, Justice Jamadar held: “The submission that the District Judge transgressed jurisdictional limits in reversing findings without cross-objections does not carry any conviction... The learned Judge was justified in entertaining such submissions from the respondent-plaintiff.” [Para 26]

The Court found that the 1976 amendment to Order 41 Rule 22 clearly permits a respondent to challenge adverse findings without filing cross-objections if the decree is entirely in their favour.

Finding no perversity, illegality, or jurisdictional error in the eviction decree, the High Court declined to interfere under its supervisory writ jurisdiction. The petition was dismissed with costs, marking the final closure of a tenancy dispute lasting over three decades.

This judgment stands as a firm reminder that statutory safeguards under tenancy laws must be diligently complied with, and that procedural objections cannot override substantive entitlements, particularly where evidence of default and misuse is overwhelming.

Date of Decision: 07 August 2025