Jamal Khan Vs. Mujahid Ahamed - Court Judgment

Excerpt:
karnataka rent control act, 1961 (central act no. 22 of 1961) - section 21(1)(h) - landlord in tenanted premises; while non-examination of his landlord not fatal, cannot be said examination of his landlord not necessary in any case - examination or non-examination one of the circumstances to decide bona fides: to be decided on facts of each case - uncertainty of tenure in rented premises occupied by landlord does not mean an order of eviction should automatically follow. ; while it may not be necessary for the petitioner to examine his landlord in all cases where eviction is sought on the ground that the petitioner is in possession of a rented accommodation, it is not an authority to say that it is not at all necessary to examine the landlord. in any such case, while judging the bonafides of the landlord-petitioner, one of the circumstances to take note of is, whether his landlord has been examined to support his contention. while the non-examination of the landlord is not fatal to the petition, at the same time it cannot be said that the examination of the landlord is not necessary in any case...the examination or non-examination of the landlord is one of the circumstances to decide the question of bonafides and whether the examination of the landlord is necessary or not is a question that has to be decided on the facts of each case....no doubt, uncertainty of tenure in a rented premises is one of the factors that has to be taken into consideration while deciding the bonafide nature of the claim made by the petitioner, but it is not possible to accept the argument that on the ground of uncertainty of tenure itself, merely because the landlord himself is in occupation of a rented premises, an order of eviction should automatically follow. - motor vehicles act, 1988 [c.a. no. 59/1988]section 80 (3): [ram mohan reddy, j] jurisdiction of the transport authority to vary the condition of permit more than once - petitioners application for variation of permits - grant of variations by extension of routes - legality of held, section 80(3) of the act invests a jurisdiction in a transport authority to vary the condition of permit more than once. curtailment is different from extension and the statute prescribes a ceiling of 24 kms in regard to extension, without a limit over the extent of curtailment cannot be counted for the purpose of calculating the extent of variation or extension of the permit. the grant of variation to the petitioners permits by the impugned endorsements being contrary to the statute, were rightly held to be illegal by the kstat. section 89 & karnataka motor vehicles rules, 1989-rule 88: appeals and revisions calculation of prescribed time limit to prefer the appeal held, the time within which the appeal is to be preferred is prescribed in the rule which is 30 days from the date of receipt of the order, by the person preferring the appeal. the reason for such a prescription is obvious since, under the act, the rta is not required to furnish to the respondents copies of its orders granting variation of permit by way of extension in favour of the petitioners, and it is only after the respondents became aware of the orders, applied for and secured copies, and within 30 days there from filed the appeals. further, having regard to the fact that the appeals were filed well within 30 days from the date of receipt of the orders by the respondents, the contention that the appeals were filed beyond the period of limitation cannot be countenanced. - vi under section 29(1) and (4) of the act praying for a direction to the respondent-tenant to pay the arrears of rent due and on his failure to do so, for a direction to stop the proceedings and direct the eviction of the respondent. 3. petition premises was leased to respondent to carry on lawful business and which are not offensive under law. of late, petitioner learnt that respondent has been misusing the premises to carry on offensive trade and business about which all the neighbouring people have complained. since respondent failed to vacate inspite of repeated requests, this petition was filed. 6. respondent has been carrying on business in tea powder in the name and style 'brindavan tea centre'.he has not indulged in any offensive or unlawful trade or business. petition is motivated with mala fides and filed since respondent failed to concede to his demand of rs. (1) whether petitioner proves that respondent has been doing unlawful or offensive business in the schedule premises thereby causing nuisance to the neighbouring people? 100/- per month and therefore the impugned order is bad in law. ' 12. as pointed out by the learned trial judge in para 3 of the eviction petition, what is the offensive trade or business the respondent is carrying on in the petition schedule shop has not been pleaded. it is not safe to rely upon such uncorroborated statement of p. c) even when landlords are residing in a rented house, in the absence of bona fides, their petitions for evicting their tenants will fail. this position has been stated in the first decision referred to above in 1982(1) karkataka law chronicle 334. it has been clearly held that 'even when landlords are residing in rented house, in the absence of bona fides, their petition for evicting their tenants will fail. therefore, it was held that the uncertainty of tenure of the petitioner in a rented premises was a strong ground for eviction and the right of the petitioner in a rented premises could not be described as a right to possession, but only a statutory immunity from eviction. 3 has stated in his cross-examination that the cloth business of the petitioner in the petition schedule shop was not doing well and therefore, the petitioner sold out all the cloth at reduced rates and it became vacant and then he leased it out to the respondent. it is thus seen that the evidence on record clearly establishes that the petitioner has been in possession of the rented premises belonging to habibunnisa since 1976 and his contention that because he fell ill and could not continue the cloth business, he leased out the petition schedule shop to the respondent for a short period is not true.orderaswathanarayana rao, j 1. these two revision petitions arise out of an order in h.r.c.nos. 3359/84 on the file of the ix additional small causes court, bangalore, dismissing the said petition by an order dated 19.1.1990. the said petition had been filed by the petitioner-landlord in c.r.p.no. 1473/90 against the respondent - tenant under section 21 (1)(d) and (h) of the karnataka rent control act, 1961 (here in after wards referred to as 'the act') praying for eviction of the respondent from the petition schedule property, namely a shop bearing no. 15 situated in o.k.road, basavaraja market, bangalore. being aggrieved by the dismissal order in the said eviction petition, the landlord has preferred the revision petition in c.r.p.no. 1473/90. during the pendency of the eviction petition, the petitioner-landlord filed an application i.a.vi under section 29(1) and (4) of the act praying for a direction to the respondent-tenant to pay the arrears of rent due and on his failure to do so, for a direction to stop the proceedings and direct the eviction of the respondent. since there was dispute with regard to the quantum of rent, the trial court held an enquiry and by an order dated 12.2.1987, determined the quantum of rent at rs. 250/- per month as against the claim of the tenant that the rent was rs. 100/- per month and directed the tenant to deposit the arrears of rent at the rate of rs. 250/- per month. being aggrieved by that order, the tenant has preferred the revision petition in c.r.p.no. 2419/1987.2. the facts which have led to these revision petitions may briefly be stated as follows. for the purpose of convenience, i will refer to the parties to these revision petitions by the positions they have occupied in the trial court.3. the case of the petitioner has been summarised by the learned trial judge in the impugned order at paras 2 to 4. they read as follows:'2. petitioner's case in brief is as follows:- he is the owner and landlord of shop premises bearing no. 15, o.k.road, 'export house', basavaraja market, bangalore-2 (schedule premises) wherein respondent is a tenant on a total monthly rental of rs. 500/-; rs. 250/- for premises and rs. 250/-for furnitures and fixtures. the tenancy commences from the 15th of every calender month. 3. petition premises was leased to respondent to carry on lawful business and which are not offensive under law. of late, petitioner learnt that respondent has been misusing the premises to carry on offensive trade and business about which all the neighbouring people have complained. respondent thus became a nuisance in the locality and has rendered himself liable to eviction. 4. petitioner is presently carrying on business in a rented accommodation and his landlady has been demanding him to vacate. hence he requires the schedule premises for his own use and occupation viz., to carry on business in general stores. the need is honest besides being reasonable and urgent. he has no alternate suitable accommodation for the purpose. since respondent failed to vacate inspite of repeated requests, this petition was filed. he will be put to great hardship and inconvenience if eviction is not ordered, while respondent will not suffer any hardship by vacating the premises.' 4. the respondent contested the petition. the objections of the respondent have been summarised in the impugned order at paras 5 to 7 carried as follows:-'5. xxx xxx xxx petitioner is the owner and landlord in respect of the schedule premises. he is a tenant in it on a monthly rent of rs. 100/-. there were no furniture in the premises when let. it is false that the rent was rs. 250/- for the premises and rs. 250/- for furnitures and fixtures. he paid a sum of rs. 25,000/- to petitioner at the inception of lease as goodwill which was to be refunded at the time of vacating without interest. the tenancy commences from the 1st of each calender month and not from the 15th as alleged in the petition. 6. respondent has been carrying on business in tea powder in the name and style 'brindavan tea centre'. he has not indulged in any offensive or unlawful trade or business. allegations to that effect are false and mischievous. 7. petitioner is carrying on business in a rented accommodation for several years which belongs to his relative, that accommodation is most suitable to his business than the schedule premises. it is false that petitioner's land-lady has been demanding him to vacate. his land lady has got 3 more shops fallen to her share in a family partition and has no need of the premises of petitioner's shop for any purpose. petitioner in addition has two more shops at gandhinagar where he is carrying on business with the help of assistants. his need of schedule premises is not bonafide and reasonable. petition is motivated with mala fides and filed since respondent failed to concede to his demand of rs. 500/- rent per month. therefore, petitioner will not suffer any hardship if eviction is not ordered, while respondent will suffer more hardship ordered to vacate.' 5. on these pleadings of the parties, the learned trial judge formulated the following points for consideration:'(1) whether petitioner proves that respondent has been doing unlawful or offensive business in the schedule premises thereby causing nuisance to the neighbouring people? (2) whether he proves his bonafide and reasonable need of the schedule premises to carry on business in general stores? (3) whether respondent proves this petition was filed with an oblique motive to extract higher rent? (4) if point no. 2 is proved, whether respondent proves he would be put to greater hardship if ordered to vacate than the petitioner otherwise?' 6. in support of his case, the petitioner examined himself and relied upon the documents exs.r1 to r20 produced by him. after trial and hearing the learned counsel for the parties, the learned trial judge answered point nos. 1 to 3 in the negative and on point no. 4, he held that in view of the finding on point no. 2, point no. 4 did not arise for consideration. in view of the findings on point nos. 1 and 2, the learned trial judge dismissed the petition.7. in the grounds urged in the revision petition in c.r.p.no. 1473/90, the petitioner has contended that the appreciation of the evidence on record by the trial court is not correct. it is contended the conclusion arrived at by the trial court that the petitioner has not established the ground under section 21(1)(h) is erroneous and perverse and is not based on the evidence on record. it is contended the mere fact that the petition schedule premises is smaller than the premises in which the petitioner is carrying on business cannot be a ground for refusing an order of eviction.8. during the pendency of this revision petition, the respondent filed an application i.a.no.iii under section 151 cpc praying for taking into consideration certain subsequent events. in the affidavit filed along with i.a.iii, the respondent has stated that the landlady of the petitioner habibunnisa is related to the petitioner and the petitioner has not established the allegation that he is under a threat of eviction by his landlady from the premises which is in his occupation. it is alleged subsequently the petitioner's daughter reshma has been given in marriage to tanveer, son of habibunnisa and their marriage took place on 17.9.1995. it is contended in view of the closer relationship which now exists between the petitioner and habibunnisa on account of the marriage of their children, there is no possibility of the petitioner from being evicted from the premises which is in his occupation.9. the petitioner in his objections to this application, has admitted the fact that his daughter was given in marriage to the son of habibunnisa and the marriage took place on 17.9.1995. he has contended that because of the close relationship, habibunnisa had not initiated any eviction proceedings against him even though she has been asking him to vacate the premises. it is contended immediately after she demanded the premises from the petitioner, the petitioner filed the present eviction petition against the respondent and therefore, habibunnisa was keeping quiet as the petitioner had not yet secured the petition schedule shop, it is contended on account of the subsequent event, that is the marriage between his daughter and the son of habibunnisa, the position of the petitioner has become awkward as his son-in-law needs the premises which is in occupation of the petitioner for carrying on his business and therefore, the petitioner cannot continue in the said premises anylonger. it is contended on account of the subsequent event, the need of the petitioner has become all the more immediate and pressing.10. in the grounds urged in c.r.p.no. 2419/87, the revision petitioner-tenant has contended that while deciding i.a.vi, he was not afforded an opportunity to adduce his evidence on i.a.vi in order to prove that the rent was only rs. 100/- per month and therefore the impugned order is bad in law.11. with regard to the ground urged under section 21(1)(d) of the act, the learned trial judge in the impugned order, has rightly observed that the plea in this regard is very vague, the said provision reads as under:'section 21(1)(d): that the tenant or any person residing with the tenant has been guilty of conduct which is nuisance or annoyance to the adjoining or neighbouring occupiers, or has been convicted for using premises or allowing the premises to be used for immoral or illegal purposes:'12. as pointed out by the learned trial judge in para 3 of the eviction petition, what is the offensive trade or business the respondent is carrying on in the petition schedule shop has not been pleaded. the evidence on this point is equally vague. p.w.1, the petitioner has stated that the respondent has been dealing in tea powder. he has further stated that he is dealing in stolen articles and there was an enquiry by the police in that regard. he has stated that the respondent also deals in smuggled goods. it is significant to note that these facts are not pleaded in the petition. nowhere in the petition we will find such allegations made against the respondent, in the cross-examination, the petitioner has admitted that he has no evidence to show that the respondent deals in smuggled articles. except the interested and uncorroborated testimony of the petitioner alone, we do not have any other evidence on this aspect. it is not safe to rely upon such uncorroborated statement of p.w. alone. i therefore, find that the learned trial judge has come to the right conclusion that the ground under section 21(1)(d) is not established.13. with regard to the ground under section 21(1)(h) of the act, the allegation in para 4 of the eviction petition is as follows.:-'4, the petitioner further submits that presently he is carrying on his business in a rented accommodation and his landlord has been demanding him to vacate and deliver the vacant possession of the premises in occupation of the petitioner. hence, the petitioner requires the schedule property for his own personal use and occupation i.e., to carry on business in general stores. xxx xxx xxx14. the respondent, in his objection statement in para 4, has denied this allegation. since, that was the only ground urged under section 21(1)(h) of the act, it was for the petitioner to have satisfactorily established the contention by adducing the necessary evidence. the learned counsel for the petitioner argued that there is sufficient and convincing evidence on record to hold that the ground, under section 21(1)(h) has been established and the trial court has not properly appreciated the evidence and has erred in relying upon a decision referred to by the respondent reported in 1982 (1) karnataka law chronicle 334. on the other hand, the learned counsel for the respondent contended that the appreciation of the evidence by the trial court is proper and the trial court has rightly followed the decision referred to above and has come to the correct conclusion.15. before referring to the evidence on this aspect, it would be necessary to refer to certain decisions relied upon by the learned counsel for the petitioner. the trial court has refused to accept the evidence of the petitioner, amongst other grounds on the ground that the petitioner has not chosen to examine his landlady in order to show that he is under threat of eviction. the learned trial judge holding that it was necessary for the petitioner to have examined his landlady, has relied upon the decision in 1982(1) karnataka law chronicle 334 mysore chemical & biological agencies and ors. v. j.m.a. ahamed moideen and ors. it has been held in the said decision as follows:b) 'non-examination of petitioners' landlord in support of their claim that he wanted them to vacate the premises under their occupation; non-production of quit notice or letter and absence of eviction proceedings - injurious to the case of the petitioners. the petitioners are living in the premises belonging to one nagappa since 1965. according to them, the said nagappa had written them a letter in 1965 asking them to vacate the premises. that letter is not produced. even that nagappa has not been examined by the petitioners to show that he wants the possession of that premises. it is undisputed that nagappa has not filed any eviction petition as yet. there is no material to show that nagappa has asked them to vacate or to show that he has sent a letter or notice asking them to vacate. therefore even viewed from this angle, their requirement cannot be said to be bona fide or reasonable. c) even when landlords are residing in a rented house, in the absence of bona fides, their petitions for evicting their tenants will fail.' 16. the learned counsel for the petitioner submitted that this decision has no application to the facts of the case on hand. he tried to distinguish the same by pointing out that in the case under the said decision, a letter which had been written by the landlord of the petitioner was not produced before the court and under those circumstances it was held that the non-examination of the landlord was injurious to the case of the petitioner. it is rather difficult to accept this argument. a careful perusal of the above said decision goes to show that there were two circumstances which were against the petitioner in that case, firstly, the said letter had not been produced and secondly, the landlord of the petitioner nagappa was not examined. this court held that both the factors were against the petitioner's contention and showed lack of bona fides on his part in filing the eviction petition.17. the learned counsel for the petitioner relied on the decision reported in 1989(1) klj 199, wherein the above referred decision in 1982(1) karnataka law chronicle 334 has been referred to. it has been held therein as follows:'the landlord's desire to stay in his own house is incidental to his proprietory right. because of the rent restriction act, his absolute right is curtailed and he is required to follow the procedure provided in the act. his right is not dependent on his landlord's action, where he is a tenant. further it would be illogical and fallacious to state that unless he is under threat of eviction, he cannot seek eviction of his tenant. further, various clauses in section 21(1) provide a right to the landlord to seek eviction on different grounds. it is the proof of the alleged ground that entitles him to seek eviction.'while referring to the decision in 1982(1) karnataka law chronicle 334 premchand gupta v. p. suryanarayana and anr., this court observed in para 17 of the above decision as follows:-'in the said decision, the learned judge mentioning several circumstances, while judging the bona fide of landlord, considered this fact as an additional ground to reject the claim as bona fide and reasonable. it is not an authority to state that in all cases the landlord who 'is occupying a rented premises is required to prove that he is under threat of eviction from his landlord. indeed this will be a strange legal proposition. the landlord's desire to stay in his own house is incidental to his proprietary right. because of the rent restriction act, his absolute right is curtailed and he is required to follow the procedure provided in the act. his right is not dependent on his landlord's action, where he- is a tenant. further it would be illogical and fallacious to state that unless he is under threat of eviction, he cannot seek eviction of his tenant. further, various clauses in section 21(1) provide a right to the landlord to seek eviction on different grounds. it is the proof of the alleged ground that entitles him to seek eviction.'18. a careful perusal of these observations go to show that while it may not be necessary for the petitioner to examine his landlord in all cases where eviction is sought on the ground that the petitioner is in possession of a rented accommodation, it is not an authority to say that it is not at all necessary to examine the landlord. in any such case, the observations made by the court referred to above go to show that while judging the bona fides of the landlord petitioner, one of the circumstances to take note of is whether his landlord has been examined to support his contention. while the non-examination of the landlord is not fatal to the petition, at the same time it cannot be said that the examination of the landlord is not necessary in any case. it is not possible to accept the argument that in the above referred decision this court has differed from the view taken in the case reported in 1982(1) karnataka law chronicle 334. the two decisions are not conflicting with one another. the gist of the two cases is that the examination or non-examination of the landlord is one of the circumstances to decide the question of bona fides and whether the examination of the landlord is necessary or not is a question that has to be decided on the facts of each case.19. then the learned counsel for the petitioner relied upon the case reported in ilr 1995 karnataka 1400 akberali sons estate v. the pen shop. it has been held in the said decision as follows:'.......to say that the landlord who is residing in tenanted premises cannot ask for eviction from his property for his own use unless he is dragged into litigation by his landlord, is, in my opinion, amounts to too much stretching of the regulatory provisions in favour of tenants. when there is uncontroverted evidence on record to show that the landlord of the premises seeking eviction is insisting for vacating the premises, then it has to be accepted that the plea of personal necessity is genuine and bona fide. non-examination of the owner of the premises of the building is not of much consequence. therefore, it cannot be said that the plea of personal necessity of the landlords is a mere desire of occupying the building for their use as opposed to bona fide need.'this decision has no application to the facts of the case on hand. in the case reported, there was uncontroverted evidence on record to show that the landlord of the premises seeking eviction was insisting for vacating the premises. in the case on hand, there is no such uncontroverted evidence. no doubt, uncertainty of tenure in a rented premises is one of the factors that has to be taken into consideration while deciding the bona fide nature of the claim made by the petitioner, but it is not possible to accept the argument that on the ground of uncertainty of tenure itself, merely because the landlord himself is in occupation of a rented premises, an order of eviction should automatically follow. if that was the intention of the legislature, provision would have been made accordingly in the act. there is no such provision. this position has been stated in the first decision referred to above in 1982(1) karkataka law chronicle 334. it has been clearly held that 'even when landlords are residing in rented house, in the absence of bona fides, their petition for evicting their tenants will fail.' there is no inconsistency in the pronouncements made by this court in the decisions referred to above.20. the learned counsel for the petitioner also relied upon the decision reported in 1962 mysore law journal 760 s.g. narayanappa & bros. v. a.m. narasimhaiah. it was a case which arose under the mysore house rent and accommodation control act 1951, but the principle enunciated therein applies to a case under the present act also. it has been held therein as follows:'the provision of the act on the strength of which a tenant may resist the landlord's claim to evict him cannot be described as a right to possession, but is only a statutory immunity from eviction.'there can be no dispute about this proposition. but it may be seen from the decision that on facts, it is distinguishable. the observations made at page 761 therein go to show that in that case there was no question of bonafides at all. because it was not the case of the respondent that the claim of the petitioner was not bona fide and the circumstances of the case did not make out a case of mala fide against the petitioner. therefore, it was held that the uncertainty of tenure of the petitioner in a rented premises was a strong ground for eviction and the right of the petitioner in a rented premises could not be described as a right to possession, but only a statutory immunity from eviction. on facts, the said decision is not applicable to the case in hand, because the bona fides of the petitioner-landlord has been seriously questioned in the objection statement in the case on hand.21. now, i shall consider the evidence on record on this aspect. p.w.1, the petitioner has stated in his evidence that his landlady is demanding possession of the premises which is in occupation of the petitioner for the use and occupation of her son. he has stated he wants to shift his business to the petition schedule shop and he has the funds and experience for that purpose. as has been rightly pointed out by the learned trial judge in the impugned order, the fact that the landlady of the petitioner is demanding possession of the shop which is in occupation of the petitioner for the use and occupation of her son has never been pleaded in the petition. it is being spoken to for the first time in the evidence by the petitioner. neither the landlady nor her son have been examined by the petitioner to corroborate his evidence and there is no explanation in the evidence of the petitioner as to why he has not examined them. the learned counsel for the petitioner argued that this statement of the petitioner in his evidence remains unchallenged in the cross-examination. i am unable to accept this argument. in the cross-examination, it is elicited that the landlady of the petitioner has got two other shops. it is elicited that the landlady of the petitioner is a house-wife and she has not filed eviction petition against him nor issued any notice. in view of this cross-examination, it cannot be said that the evidence of the petitioner has remained unchallenged.22. as rightly argued by the learned counsel for the respondent, if it was the case of the petitioner that he is doing business in a rented premises and he wants to move to his own shop, then it would be different. the only ground under which the eviction order is sought against the respondent in this case is that the petitioner is under threat of eviction by his landlord. no other ground is urged. the petitioner has not given any other reasons in the eviction petition as to why he wants to shift to his own premises. therefore, it was incumbent upon the petitioner to have established satisfactorily the allegation that he is under a threat of eviction by his landlady. there is absolutely no satisfactory evidence to prove this allegation.23. the learned counsel for the petitioner argued that the trial court has committed a factual error in holding that the petitioner while continuing in possession of the rented premises, has let out the petition schedule property to the respondent and this fact goes to show that the claim of the petitioner that he was in need of the petition schedule premises is not bona fide. he submitted that the petitioner purchased the petition schedule property in 1980, he was carrying on business in clothes in it for some time and then he fell ill in 1981. therefore, he was forced to close his cloth business and lease out the property to the respondent who happened to be his close friend. it is contended he let out the property to the respondent for a short period, but taking advantage of that fact, the respondent is refusing to vacate. he contended therefore, the petitioner was forced to take his present rented premises in the year 1984. this argument does not stand test of scrutiny. p.w.1, the petitioner in his evidence, has admitted in para 2 that he is running a fancy store near the petition schedule shop and he has taken it on rent from habibunnisa. in the cross-examination which was recorded on 8.11.1986, he has stated that he is running his business in the rented premises since 10 years, that would be since 1976. therefore, the contention that the petitioner took the rented premises in 1984 does not stand. further, p.w.2 basheer ahmad has stated in his evidence that the petitioner was running a cloth shop in the petition schedule property. he fell ill and could not run the shop and therefore, the respondent took it on lease for a temporary period. he has stated he, that is p.w,2, was responsible for that lease transaction. he has stated that the respondent was to vacate it after the petitioner recovered from the illness. in the cross-examination, he has stated that he has a shop adjoining the petition schedule shop. this evidence of p.w.2 is set at naught by another witness examined by the petitioner himself, p.w.3 d.k. srinivasa shetty. he has stated he was working in the cloth shop of the petitioner from 1979 to 1981. this admission by the petitioner's own witness destroys the argument of the learned counsel for the petitioner that the petitioner took his shop on rent in 1984. contradicting the statement of p.w.2, p.w.3 has stated in his cross-examination that the cloth business of the petitioner in the petition schedule shop was not doing well and therefore, the petitioner sold out all the cloth at reduced rates and it became vacant and then he leased it out to the respondent. it is thus seen that the evidence on record clearly establishes that the petitioner has been in possession of the rented premises belonging to habibunnisa since 1976 and his contention that because he fell ill and could not continue the cloth business, he leased out the petition schedule shop to the respondent for a short period is not true. i therefore, find that the learned trial judge has rightly appreciated the evidence on record and there is no infirmity in the reasonings or the conclusions arrived at by the trial court.24. with regard to the subsequent event alleged in the application i.a.iii, that fact has been admitted by the respondent in his objection statement. it was strenuously argued by the learned counsel for the petitioner that on account of this subsequent event, namely the marriage between the daughter of the petitioner and son of habibunnisa, the position of the petitioner has become very awkward and he can no longer resist the claim of habibunnisa for the premises in occupation of the petitioner since the son-in-law of the petitioner himself is in need of the said shop. while the learned counsel was very persuasive in making this submission, i must say that factually he does not find any support. as a perusal of the impugned order goes to show, there is absolutely nothing on record to show that habibunnisa at any time has asked the petitioner to vacate the shop given to him on lease by her. if really the petitioner was in such an embarrassing position as it was sought to be made out by the learned counsel, it was open to the petitioner to have filed the affidavit of either habibunnisa or her son at least in support of i.a.iii. but there is no such affidavit filed. therefore, it remains only as a contention. it was argued by the learned counsel for the respondent that it could also be inferred that on account of the closer relationship due to the marriage, the natural conduct of habibunnisa would be not to insist upon the petitioner to vacate the shop which is in his possession, but to seek the other shops belonging to her if really she is in need of a shop for the use of her son. this argument cannot be brushed aside easily. therefore, it is not possible to accept the argument of the learned counsel for the petitioner that the subsequent event alleged goes to show that the need of the petitioner for the petition schedule property has become all the more greater. i therefore, find that the learned trial judge has rightly come to the conclusion that the only ground urged in the petition under section 21(1)(h) has not been established satisfactorily by the petitioner and an order of eviction cannot be based on such evidence. i therefore find that the revision petition in c.r.p.no. 1473/90 is liable to be dismissed.25. with regard to c.r.p.no. 2419/87, on a perusal of the impugned order passed on i.a.vi by the trial court on 12.2.1987, i find there is no substance in the contention of the tenant that an opportunity was not given to him to prove that the rent is only rs. 100/-per month. the learned trial judge has observed in the impugned order that inspite of a number of opportunities given, the respondent has not adduced his evidence. a perusal of the order also goes to show that at the time of the lease of the petition schedule property to the respondent, the petitioner himself was paying a rent of rs. 125/- per month to the shop which he had taken from habibunnisa. therefore, it is not possible to accept the contention that the petitioner had let out the petition schedule property to the respondent on a rent of rs. 100/- per month. on a perusal of the evidence adduced by the petitioner, the learned trial judge has rightly come to the conclusion that the rent was rs. 250/- per month. at the time of the arguments also, the learned counsel for the respondent-tenant did not seriously dispute the correctness of this finding. i therefore, find that the revision petition in c.r.p.no. 2419/87 is also liable to be dismissed.26. for the reasons aforesaid, both the revision petitions are dismissed. considering the facts and circumstances of the case, i direct the parties to bear their own costs in these revision petitions.

Judgment:
ORDER

Aswathanarayana Rao, J

1. These two Revision Petitions arise out of an order in H.R.C.Nos. 3359/84 on the file of the IX Additional Small Causes Court, Bangalore, dismissing the said petition by an order dated 19.1.1990. The said petition had been filed by the petitioner-landlord in C.R.P.No. 1473/90 against the respondent - tenant under Section 21 (1)(d) and (h) of the Karnataka Rent Control Act, 1961 (here in after wards referred to as 'the Act') praying for eviction of the respondent from the petition schedule property, namely a shop bearing No. 15 situated in O.K.Road, Basavaraja Market, Bangalore. Being aggrieved by the dismissal order in the said Eviction Petition, the landlord has preferred the Revision Petition in C.R.P.No. 1473/90. During the pendency of the Eviction Petition, the petitioner-landlord filed an application I.A.VI under Section 29(1) and (4) of the Act praying for a direction to the respondent-tenant to pay the arrears of rent due and on his failure to do so, for a direction to stop the proceedings and direct the eviction of the respondent. Since there was dispute with regard to the quantum of rent, the Trial Court held an enquiry and by an order dated 12.2.1987, determined the quantum of rent at Rs. 250/- per month as against the claim of the tenant that the rent was Rs. 100/- per month and directed the tenant to deposit the arrears of rent at the rate of Rs. 250/- per month. Being aggrieved by that order, the tenant has preferred the Revision Petition in C.R.P.No. 2419/1987.

2. The facts which have led to these revision petitions may briefly be stated as follows. For the purpose of convenience, I will refer to the parties to these Revision Petitions by the positions they have occupied in the Trial Court.

3. The case of the petitioner has been summarised by the learned Trial Judge in the impugned order at paras 2 to 4. They read as follows:

'2. Petitioner's case in brief is as follows:-

He is the owner and landlord of shop premises bearing No. 15, O.K.Road, 'Export House', Basavaraja Market, Bangalore-2 (schedule premises) wherein respondent is a tenant on a total monthly rental of Rs. 500/-; Rs. 250/- for premises and Rs. 250/-for furnitures and fixtures. The tenancy commences from the 15th of every calender month.

3. Petition premises was leased to respondent to carry on lawful business and which are not offensive under law. Of late, petitioner learnt that respondent has been misusing the premises to carry on offensive trade and business about which all the neighbouring people have complained. Respondent thus became a nuisance in the locality and has rendered himself liable to eviction.

4. Petitioner is presently carrying on business in a rented accommodation and his landlady has been demanding him to vacate. Hence he requires the schedule premises for his own use and occupation viz., to carry on business in General Stores. The need is honest besides being reasonable and urgent. He has no alternate suitable accommodation for the purpose. Since respondent failed to vacate inspite of repeated requests, this petition was filed. He will be put to great hardship and inconvenience if eviction is not ordered, while respondent will not suffer any hardship by vacating the premises.'

4. The respondent contested the petition. The objections of the respondent have been summarised in the impugned order at paras 5 to 7 carried as follows:-

'5. xxx xxx xxx Petitioner is the owner and landlord in respect of the schedule premises. He is a tenant in it on a monthly rent of Rs. 100/-. There were no furniture in the premises when let. It is false that the rent was Rs. 250/- for the premises and Rs. 250/- for furnitures and fixtures. He paid a sum of Rs. 25,000/- to petitioner at the inception of lease as goodwill which was to be refunded at the time of vacating without interest. The tenancy commences from the 1st of each calender month and not from the 15th as alleged in the petition.

6. Respondent has been carrying on business in Tea Powder in the name and style 'Brindavan Tea Centre'. He has not indulged in any offensive or unlawful trade or business. Allegations to that effect are false and mischievous.

7. Petitioner is carrying on business in a rented accommodation for several years which belongs to his relative, That accommodation is most suitable to his business than the schedule premises. It is false that petitioner's land-lady has been demanding him to vacate. His land lady has got 3 more shops fallen to her share in a family partition and has no need of the premises of petitioner's shop for any purpose. Petitioner in addition has two more shops at Gandhinagar where he is carrying on business with the help of assistants. His need of schedule premises is not bonafide and reasonable. Petition is motivated with mala fides and filed since respondent failed to concede to his demand of Rs. 500/- rent per month. Therefore, petitioner will not suffer any hardship if eviction is not ordered, while respondent will suffer more hardship ordered to vacate.'

5. On these pleadings of the parties, the learned Trial Judge formulated the following points for consideration:

'(1) Whether petitioner proves that respondent has been doing unlawful or offensive business in the schedule premises thereby causing nuisance to the neighbouring people?

(2) Whether he proves his bonafide and reasonable need of the schedule premises to carry on business in General Stores?

(3) Whether respondent proves this petition was filed with an oblique motive to extract higher rent?

(4) If point No. 2 is proved, whether respondent proves he would be put to greater hardship if ordered to vacate than the petitioner otherwise?'

6. In support of his case, the petitioner examined himself and relied upon the documents Exs.R1 to R20 produced by him. After trial and hearing the learned Counsel for the parties, the learned Trial Judge answered point Nos. 1 to 3 in the negative and on point No. 4, he held that in view of the finding on point No. 2, point No. 4 did not arise for consideration. In view of the findings on point Nos. 1 and 2, the learned Trial Judge dismissed the petition.

7. In the grounds urged in the Revision Petition in C.R.P.No. 1473/90, the petitioner has contended that the appreciation of the evidence on record by the Trial Court is not correct. It is contended the conclusion arrived at by the Trial Court that the petitioner has not established the ground under Section 21(1)(h) is erroneous and perverse and is not based on the evidence on record. It is contended the mere fact that the petition schedule premises is smaller than the premises in which the petitioner is carrying on business cannot be a ground for refusing an order of Eviction.

8. During the pendency of this Revision Petition, the respondent filed an application I.A.No.III under Section 151 CPC praying for taking into consideration certain subsequent events. In the affidavit filed along with I.A.III, the respondent has stated that the landlady of the petitioner Habibunnisa is related to the petitioner and the petitioner has not established the allegation that he is under a threat of eviction by his landlady from the premises which is in his occupation. It is alleged subsequently the petitioner's daughter Reshma has been given in marriage to Tanveer, son of Habibunnisa and their marriage took place on 17.9.1995. It is contended in view of the closer relationship which now exists between the petitioner and Habibunnisa on account of the marriage of their children, there is no possibility of the petitioner from being evicted from the premises which is in his occupation.

9. The petitioner in his objections to this application, has admitted the fact that his daughter was given in marriage to the son of Habibunnisa and the marriage took place on 17.9.1995. He has contended that because of the close relationship, Habibunnisa had not initiated any eviction proceedings against him even though she has been asking him to vacate the premises. It is contended immediately after she demanded the premises from the petitioner, the petitioner filed the present Eviction Petition against the respondent and therefore, Habibunnisa was keeping quiet as the petitioner had not yet secured the petition schedule shop, it is contended on account of the subsequent event, that is the marriage between his daughter and the son of Habibunnisa, the position of the petitioner has become awkward as his son-in-law needs the premises which is in occupation of the petitioner for carrying on his business and therefore, the petitioner cannot continue in the said premises anylonger. It is contended on account of the subsequent event, the need of the petitioner has become all the more immediate and pressing.

10. In the grounds urged in C.R.P.No. 2419/87, the Revision petitioner-tenant has contended that while deciding I.A.VI, he was not afforded an opportunity to adduce his evidence on I.A.VI in order to prove that the rent was only Rs. 100/- per month and therefore the impugned order is bad in law.

11. With regard to the ground urged under Section 21(1)(d) of the Act, the learned Trial Judge in the impugned order, has rightly observed that the plea in this regard is very vague, The said provision reads as under:

'Section 21(1)(d): that the tenant or any person residing with the tenant has been guilty of conduct which is nuisance or annoyance to the adjoining or neighbouring occupiers, or has been convicted for using premises or allowing the premises to be used for immoral or illegal purposes:'

12. As pointed out by the learned Trial Judge in para 3 of the Eviction Petition, what is the offensive trade or business the respondent is carrying on in the petition schedule shop has not been pleaded. The evidence on this point is equally vague. P.W.1, the petitioner has stated that the respondent has been dealing in tea powder. He has further stated that he is dealing in stolen articles and there was an enquiry by the police in that regard. He has stated that the respondent also deals in smuggled goods. It is significant to note that these facts are not pleaded in the petition. Nowhere in the petition we will find such allegations made against the respondent, In the cross-examination, the petitioner has admitted that he has no evidence to show that the respondent deals in smuggled articles. Except the interested and uncorroborated testimony of the petitioner alone, we do not have any other evidence on this aspect. It is not safe to rely upon such uncorroborated statement of P.W. alone. I therefore, find that the learned Trial Judge has come to the right conclusion that the ground under Section 21(1)(d) is not established.

13. With regard to the ground under Section 21(1)(h) of the Act, the allegation in para 4 of the Eviction Petition is as follows.:-

'4, The petitioner further submits that presently he is carrying on his business in a rented accommodation and his landlord has been demanding him to vacate and deliver the vacant possession of the premises in occupation of the petitioner. Hence, the petitioner requires the schedule property for his own personal use and occupation i.e., to carry on business in general stores. xxx xxx xxx

14. The respondent, in his objection statement in para 4, has denied this allegation. Since, that was the only ground urged under Section 21(1)(h) of the Act, it was for the petitioner to have satisfactorily established the contention by adducing the necessary evidence. The learned Counsel for the petitioner argued that there is sufficient and convincing evidence on record to hold that the ground, under Section 21(1)(h) has been established and the Trial Court has not properly appreciated the evidence and has erred in relying upon a Decision referred to by the respondent reported in 1982 (1) KARNATAKA LAW CHRONICLE 334. On the other hand, the learned Counsel for the respondent contended that the appreciation of the evidence by the Trial Court is proper and the Trial Court has rightly followed the Decision referred to above and has come to the correct conclusion.

15. Before referring to the evidence on this aspect, it would be necessary to refer to certain Decisions relied upon by the learned Counsel for the petitioner. The Trial Court has refused to accept the evidence of the petitioner, amongst other grounds on the ground that the petitioner has not chosen to examine his landlady in order to show that he is under threat of eviction. The learned Trial Judge holding that it was necessary for the petitioner to have examined his landlady, has relied upon the Decision in 1982(1) KARNATAKA LAW CHRONICLE 334 Mysore Chemical & Biological Agencies and Ors. v. J.M.A. Ahamed Moideen and Ors. It has been held in the said Decision as follows:

b) 'NON-EXAMINATION OF PETITIONERS' LANDLORD IN SUPPORT OF THEIR CLAIM THAT HE WANTED THEM TO VACATE THE PREMISES UNDER THEIR OCCUPATION; NON-PRODUCTION OF QUIT NOTICE OR LETTER AND ABSENCE OF EVICTION PROCEEDINGS - INJURIOUS TO THE CASE OF THE PETITIONERS.

The petitioners are living in the premises belonging to one Nagappa since 1965. According to them, the said Nagappa had written them a letter in 1965 asking them to vacate the premises. That letter is not produced. Even that Nagappa has not been examined by the petitioners to show that he wants the possession of that premises. It is undisputed that Nagappa has not filed any eviction petition as yet. There is no material to show that Nagappa has asked them to vacate or to show that he has sent a letter or notice asking them to vacate. Therefore even viewed from this angle, their requirement cannot be said to be bona fide or reasonable.

c) EVEN WHEN LANDLORDS ARE RESIDING IN A RENTED HOUSE, IN THE ABSENCE OF BONA FIDES, THEIR PETITIONS FOR EVICTING THEIR TENANTS WILL FAIL.'

16. The learned Counsel for the petitioner submitted that this Decision has no application to the facts of the case on hand. He tried to distinguish the same by pointing out that in the case under the said Decision, a letter which had been written by the landlord of the petitioner was not produced before the Court and under those circumstances it was held that the non-examination of the landlord was injurious to the case of the petitioner. It is rather difficult to accept this argument. A careful perusal of the above said Decision goes to show that there were two circumstances which were against the petitioner in that case, firstly, the said letter had not been produced and secondly, the landlord of the petitioner Nagappa was not examined. This Court held that both the factors were against the petitioner's contention and showed lack of bona fides on his part in filing the Eviction Petition.

17. The learned Counsel for the petitioner relied on the Decision reported in 1989(1) KLJ 199, wherein the above referred Decision in 1982(1) KARNATAKA LAW CHRONICLE 334 has been referred to. It has been held therein as follows:

'The landlord's desire to stay in his own house is incidental to his proprietory right. Because of the Rent Restriction Act, his absolute right is curtailed and he is required to follow the procedure provided in the Act. His right is not dependent on his landlord's action, where he is a tenant. Further it would be illogical and fallacious to state that unless he is under threat of eviction, he cannot seek eviction of his tenant. Further, various clauses in Section 21(1) provide a right to the landlord to seek eviction on different grounds. It is the proof of the alleged ground that entitles him to seek eviction.'

While referring to the Decision in 1982(1) KARNATAKA LAW CHRONICLE 334 Premchand Gupta v. P. Suryanarayana and Anr., this Court observed in para 17 of the above Decision as follows:-

'In the said decision, the learned Judge mentioning several circumstances, while judging the bona fide of landlord, considered this fact as an additional ground to reject the claim as bona fide and reasonable. It is not an authority to state that in all cases the landlord who 'is occupying a rented premises is required to prove that he is under threat of eviction from his landlord. Indeed this will be a strange legal proposition. The landlord's desire to stay in his own house is incidental to his proprietary right. Because of the Rent Restriction Act, his absolute right is curtailed and he is required to follow the procedure provided in the Act. His right is not dependent on his landlord's action, where he- is a tenant. Further it would be illogical and fallacious to state that unless he is under threat of eviction, he cannot seek eviction of his tenant. Further, various clauses in Section 21(1) provide a right to the landlord to seek eviction on different grounds. It is the proof of the alleged ground that entitles him to seek eviction.'

18. A careful perusal of these observations go to show that while it may not be necessary for the petitioner to examine his landlord in all cases where eviction is sought on the ground that the petitioner is in possession of a rented accommodation, it is not an authority to say that it is not at all necessary to examine the landlord. In any such case, the observations made by the Court referred to above go to show that while judging the bona fides of the landlord petitioner, one of the circumstances to take note of is whether his landlord has been examined to support his contention. While the non-examination of the landlord is not fatal to the petition, at the same time it cannot be said that the examination of the landlord is not necessary in any case. It is not possible to accept the argument that in the above referred Decision this Court has differed from the view taken in the case reported in 1982(1) KARNATAKA LAW CHRONICLE 334. The two Decisions are not conflicting with one another. The gist of the two cases is that the examination or non-examination of the landlord is one of the circumstances to decide the question of bona fides and whether the examination of the landlord is necessary or not is a question that has to be decided on the facts of each case.

19. Then the learned Counsel for the petitioner relied upon the case reported in ILR 1995 KARNATAKA 1400 Akberali Sons Estate v. The Pen Shop. It has been held in the said Decision as follows:

'.......to say that the landlord who is residing in tenanted premises cannot ask for eviction from his property for his own use unless he is dragged into litigation by his landlord, is, in my opinion, amounts to too much stretching of the regulatory provisions in favour of tenants. When there is uncontroverted evidence on record to show that the landlord of the premises seeking eviction is insisting for vacating the premises, then it has to be accepted that the plea of personal necessity is genuine and bona fide. Non-examination of the owner of the premises of the building is not of much consequence. Therefore, it cannot be said that the plea of personal necessity of the landlords is a mere desire of occupying the building for their use as opposed to bona fide need.'

This Decision has no application to the facts of the case on hand. In the case reported, there was uncontroverted evidence on record to show that the landlord of the premises seeking eviction was insisting for vacating the premises. In the case on hand, there is no such uncontroverted evidence. No doubt, uncertainty of tenure in a rented premises is one of the factors that has to be taken into consideration while deciding the bona fide nature of the claim made by the petitioner, but it is not possible to accept the argument that on the ground of uncertainty of tenure itself, merely because the landlord himself is in occupation of a rented premises, an order of eviction should automatically follow. If that was the intention of the Legislature, provision would have been made accordingly in the Act. There is no such provision. This position has been stated in the first decision referred to above in 1982(1) KARKATAKA LAW CHRONICLE 334. It has been clearly held that 'even when landlords are residing in rented house, in the absence of bona fides, their petition for evicting their tenants will fail.' There is no inconsistency in the pronouncements made by this Court in the Decisions referred to above.

20. The learned Counsel for the petitioner also relied upon the Decision reported in 1962 MYSORE LAW JOURNAL 760 S.G. Narayanappa & Bros. v. A.M. Narasimhaiah. It was a case which arose under the Mysore House Rent and Accommodation Control Act 1951, but the principle enunciated therein applies to a case under the present Act also. It has been held therein as follows:

'The provision of the Act on the strength of which a tenant may resist the landlord's claim to evict him cannot be described as a right to possession, but is only a statutory immunity from eviction.'

There can be no dispute about this proposition. But it may be seen from the Decision that on facts, it is distinguishable. The observations made at page 761 therein go to show that in that case there was no question of bonafides at all. Because it was not the case of the respondent that the claim of the petitioner was not bona fide and the circumstances of the case did not make out a case of mala fide against the petitioner. Therefore, it was held that the uncertainty of tenure of the petitioner in a rented premises was a strong ground for eviction and the right of the petitioner in a rented premises could not be described as a right to possession, but only a statutory immunity from eviction. On facts, the said Decision is not applicable to the case in hand, because the bona fides of the petitioner-landlord has been seriously questioned in the objection statement in the case on hand.

21. Now, I shall consider the evidence on record on this aspect. P.W.1, the petitioner has stated in his evidence that his landlady is demanding possession of the premises which is in occupation of the petitioner for the use and occupation of her son. He has stated he wants to shift his business to the petition schedule shop and he has the funds and experience for that purpose. As has been rightly pointed out by the learned Trial Judge in the impugned order, the fact that the landlady of the petitioner is demanding possession of the shop which is in occupation of the petitioner for the use and occupation of her son has never been pleaded in the petition. It is being spoken to for the first time in the evidence by the petitioner. Neither the landlady nor her son have been examined by the petitioner to corroborate his evidence and there is no explanation in the evidence of the petitioner as to why he has not examined them. The learned Counsel for the petitioner argued that this statement of the petitioner in his evidence remains unchallenged in the cross-examination. I am unable to accept this argument. In the cross-examination, it is elicited that the landlady of the petitioner has got two other shops. It is elicited that the landlady of the petitioner is a house-wife and she has not filed Eviction Petition against him nor issued any notice. In view of this cross-examination, it cannot be said that the evidence of the petitioner has remained unchallenged.

22. As rightly argued by the learned Counsel for the respondent, if it was the case of the petitioner that he is doing business in a rented premises and he wants to move to his own shop, then it would be different. The only ground under which the eviction order is sought against the respondent in this case is that the petitioner is under threat of eviction by his landlord. No other ground is urged. The petitioner has not given any other reasons in the Eviction Petition as to why he wants to shift to his own premises. Therefore, it was incumbent upon the petitioner to have established satisfactorily the allegation that he is under a threat of eviction by his landlady. There is absolutely no satisfactory evidence to prove this allegation.

23. The learned Counsel for the petitioner argued that the Trial Court has committed a factual error in holding that the petitioner while continuing in possession of the rented premises, has let out the petition schedule property to the respondent and this fact goes to show that the claim of the petitioner that he was in need of the petition schedule premises is not bona fide. He submitted that the petitioner purchased the petition schedule property in 1980, he was carrying on business in clothes in it for some time and then he fell ill in 1981. Therefore, he was forced to close his cloth business and lease out the property to the respondent who happened to be his close friend. It is contended he let out the property to the respondent for a short period, but taking advantage of that fact, the respondent is refusing to vacate. He contended therefore, the petitioner was forced to take his present rented premises in the year 1984. This argument does not stand test of scrutiny. P.W.1, the petitioner in his evidence, has admitted in para 2 that he is running a fancy store near the petition schedule shop and he has taken it on rent from Habibunnisa. In the cross-examination which was recorded on 8.11.1986, he has stated that he is running his business in the rented premises since 10 years, that would be since 1976. Therefore, the contention that the petitioner took the rented premises in 1984 does not stand. Further, P.W.2 Basheer Ahmad has stated in his evidence that the petitioner was running a cloth shop in the petition schedule property. He fell ill and could not run the shop and therefore, the respondent took it on lease for a temporary period. He has stated he, that is P.W,2, was responsible for that lease transaction. He has stated that the respondent was to vacate it after the petitioner recovered from the illness. In the cross-examination, he has stated that he has a shop adjoining the petition schedule shop. This evidence of P.W.2 is set at naught by another witness examined by the petitioner himself, P.W.3 D.K. Srinivasa Shetty. He has stated he was working in the cloth shop of the petitioner from 1979 to 1981. This admission by the petitioner's own witness destroys the argument of the learned Counsel for the petitioner that the petitioner took his shop on rent in 1984. Contradicting the statement of P.W.2, P.W.3 has stated in his cross-examination that the cloth business of the petitioner in the petition schedule shop was not doing well and therefore, the petitioner sold out all the cloth at reduced rates and it became vacant and then he leased it out to the respondent. It is thus seen that the evidence on record clearly establishes that the petitioner has been in possession of the rented premises belonging to Habibunnisa since 1976 and his contention that because he fell ill and could not continue the cloth business, he leased out the petition schedule shop to the respondent for a short period is not true. I therefore, find that the learned Trial Judge has rightly appreciated the evidence on record and there is no infirmity in the reasonings or the conclusions arrived at by the Trial Court.

24. With regard to the subsequent event alleged in the application I.A.III, that fact has been admitted by the respondent in his objection statement. It was strenuously argued by the learned Counsel for the petitioner that on account of this subsequent event, namely the marriage between the daughter of the petitioner and son of Habibunnisa, the position of the petitioner has become very awkward and he can no longer resist the claim of Habibunnisa for the premises in occupation of the petitioner since the son-in-law of the petitioner himself is in need of the said shop. While the learned Counsel was very persuasive in making this submission, I must say that factually he does not find any support. As a perusal of the impugned order goes to show, there is absolutely nothing on record to show that Habibunnisa at any time has asked the petitioner to vacate the shop given to him on lease by her. If really the petitioner was in such an embarrassing position as it was sought to be made out by the learned Counsel, it was open to the petitioner to have filed the affidavit of either Habibunnisa or her son at least in support of I.A.III. But there is no such affidavit filed. Therefore, it remains only as a contention. It was argued by the learned Counsel for the respondent that it could also be inferred that on account of the closer relationship due to the marriage, the natural conduct of Habibunnisa would be not to insist upon the petitioner to vacate the shop which is in his possession, but to seek the other shops belonging to her if really she is in need of a shop for the use of her son. This argument cannot be brushed aside easily. Therefore, it is not possible to accept the argument of the learned Counsel for the petitioner that the subsequent event alleged goes to show that the need of the petitioner for the petition schedule property has become all the more greater. I therefore, find that the learned Trial Judge has rightly come to the conclusion that the only ground urged in the petition under Section 21(1)(h) has not been established satisfactorily by the petitioner and an order of eviction cannot be based on such evidence. I therefore find that the Revision Petition in C.R.P.No. 1473/90 is liable to be dismissed.

25. With regard to C.R.P.No. 2419/87, on a perusal of the impugned order passed on I.A.VI by the Trial Court on 12.2.1987, I find there is no substance in the contention of the tenant that an opportunity was not given to him to prove that the rent is only Rs. 100/-per month. The learned Trial Judge has observed in the impugned order that inspite of a number of opportunities given, the respondent has not adduced his evidence. A perusal of the order also goes to show that at the time of the lease of the petition schedule property to the respondent, the petitioner himself was paying a rent of Rs. 125/- per month to the shop which he had taken from Habibunnisa. Therefore, it is not possible to accept the contention that the petitioner had let out the petition schedule property to the respondent on a rent of Rs. 100/- per month. On a perusal of the evidence adduced by the petitioner, the learned Trial Judge has rightly come to the conclusion that the rent was Rs. 250/- per month. At the time of the arguments also, the learned Counsel for the respondent-tenant did not seriously dispute the correctness of this finding. I therefore, find that the Revision Petition in C.R.P.No. 2419/87 is also liable to be dismissed.

26. For the reasons aforesaid, both the Revision Petitions are dismissed. Considering the facts and circumstances of the case, I direct the parties to bear their own costs in these Revision Petitions.