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PETITIONER: SMT. LAXMI & ANANDI & OTHERS.

       Vs.

RESPONDENT: SHRI C. SETHARAMA NAGARKAR & ORS.

DATE OF JUDGMENT18/09/1995

BENCH: KULDIP SINGH (J) BENCH: KULDIP SINGH (J) AHMAD SAGHIR S. (J)

CITATION:  1995 SCC  (6) 576        JT 1995 (7)   400  1995 SCALE  (5)481

ACT:

HEADNOTE:

JUDGMENT:                           W I T H                CIVIL APPEAL NO. 8471 OF 1995   (Arising out of S.L.P.(C) No.21968 of 1995 (CC 2547/95)) C. Seetharama Nagarkar                            Versus Smt. Lakshmidevi & Anandi & Ors.                       J U D G M E N T BHARUCHA, J:      Delay condoned.      Leave granted.      These are  cross appeals against the judgment and order of the  High Court  of  Karnataka  dismissing  the  revision petitions filed  by the  landlord and  the tenants  who were parties to an eviction proceeding.      The proceeding  was  lodged  on  the  ground  that  the tenants were  in  default  of  payment  of  rent  and  were, therefore, liable  to be  evicted under  the  provisions  of Section 21(1)  (a) of  the Karnataka  Rent Control Act; that the landlord  bona fide  and reasonably  required  the  rent premises; and  that the tenants had sub-leased the same. The trial court  upheld the landlord’s case on all three grounds and passed  an order of eviction. The learned District Judge reversed the  finding of  the trial  court on  the first two grounds and upheld it on the ground of sub-letting. The High Court rejected  the  landlord’s  revision  petition  on  the ground of  bona fide  need. It  also rejected  the  tenants’ revision petition and upheld the findings of the trial court and  the   District  Judge   that   the   original   tenant, Shankarnarayana Shet, the late husband of the 1st respondent and father  of the 2nd and 3rd respondents, had sub-let part of the  suit premises to the 4th respondent. The landlord is in appeal on the ground of bona fide need and the tenants in their  appeal  question  the  concurrent  findings  of  sub- letting.      It is convenient to dispose of the landlord’s appeal on

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the ground of bona fide need first. The original plea of the landlord was  that he  required the  suit premises  for  his mother’s residence.  The mother  expired during the pendency of the  proceedings. The  landlord had  then taken  the plea that he wanted the suit premises for his own occupation. The District Judge  and  the  High  Court  upheld  the  tenants’ contention that  this subsequent plea required investigation on  facts  and  could  not  be  entertained  in  a  revision petition. We  are in  no doubt that the High Court was right in the  view that it took. The facts necessary to make out a case relating  to the need of the landlord himself to occupy the  suit  premises  are  altogether  different  from  those relating to  the need of the landlord’s mother to occupy the suit premises. The facts to establish that the landlord bona fide required the suit premises for his own occupation could not have  been ascertained  at the  stage  of  the  revision petition.      This brings  us to the appeal in regard to the findings of the  High Court, affirming that of the courts below, that the original  tenant Shankarnarayana  had sub-let  a part of the suit  premises. The premises in their entirety may first be described.  Abutting a  public road is the main building; attached to  it is a garage; in the compound, to one side of the main  building and behind it, are a well, toilets and an outhouse. The  first lease  to the  original tenant upon the record is  dated 16th  May, 1968  and it relates to the main building bearing  P.B.775/II (which  is  now  numbered  Door No.495, as  the evidence of the landlord, to which reference shall be  made, shows).  Another lease  was executed  on 1st March, 1972  which was  for the "tile roofed storey building having No.P.B.775/II".  On 21st  May, 1973 yet another lease was executed  which  also  was  of  "a  tile  roofed  storey building having No.P.B.775/II". It was upon this document of 21st May,  1973 that  the eviction  petition was  filed. The averment therein in regard to sub-letting read thus:      "That the  opponents 1  to  3  has  sub-      leased the  outhouse bearing Door No.497      to the  4th opponent  for rent,  without      the  consent   and   approval   of   the      applicant and  also against the terms of      the badige agreement."      In support  of his  case the landlord gave evidence and stated in  the  examination-in-chief  that  the  residential building was  situated by  the side of the road; there was a small building, close to the cowpen, bearing Door No.497 and the landlord  had been  using the same as his storehouse and the  original  tenant  had  sub-leased  "the  said  building bearing Door No.497" to the 4th opponent on a monthly rental of Rs.15/-  without obtaining the landlord’s consent. (There is no  dispute that  Door No.497 is the outhouse.) In cross- examination, the landlord stated: thus:      "It is  true that  there are 4 buildings      included with 3 residential quarters and      a garage  with a  cow-pen and latrine on      the suit  properties. The  present  Door      No.495 was  bearing Door  No.775  of  II      ward previously  in which  respondents 1      to  3   are  residing.........This  Door      No.775 continued  till  1973........Only      Door   No.775   was   leased   to   late      Shankarnarayana Shet.  The  premises  in      which  R.4   was  residing  and  another      building in which there was a garage and      the 3rd  building were  never leased  in      favour of Shankarnarayana Shet. But late

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    Shankarnarayana Shet  was  requested  to      take care of them, their possession were      never given to him".      In  relation   to  this  evidence  the  District  Judge ovserved:      "No  doubt,   at  one  stage  in  cross-      examination it  has come to the evidence      of P.W.1  that the premises in which 4th      respondent was  residing and  the  motor      garage and  the 3rd  building were never      leased  in   favour  of  Shankarnarayana      Shet.  It   was,  therefore,  argued  on      behalf of  the revision petitioners that      P.W.1 himself  admits that  the building      in the  occupation of 4th respondent was      not leased  to Shankarnarayana  Shet. In      my view the answer of P.W.1 has not been      recorded  properly.   It   must   be   a      mistake." (Emphasis supplied.) The High Court, in this connection, said this:      "It may be quite possible that persuaded      by various  reasons, some  witnesses may      spell out  something which  is not  true      but that  by itself  may not be a ground      for brushing aside the other part of the      deposition   or   other   relevant   and      acceptable evidence."      We fail  to appreciate  the view  taken by  the learned District Judge  and by the High Court. This was the evidence of the  landlord himself  in support  of  the  plea  in  his application for eviction of the tenants that the tenants had "sub-leased the  outhouse bearing  Door No.497  to  the  4th opponent". In  his evidence  the  landlord  said  that  Door No.495 had  prior to  1973 borne  Door No.775 of II ward and that only  Door No.775  of  IInd  ward  was  leased  to  the original tenant.  He said that the premises in which the 4th respondent was  residing were  never leased  to the original tenant. There  was no re-examination of the landlord in this regard. The  onus of  proving the sub-tenancy as alleged was on the  landlord. The landlord’s evidence does not establish such sub-tenancy.  In fact,  it rules out any possibility of it. The  statements in  the landlord’s  evidence  cannot  be explained away  by observing  that the landlord’s answer had not been  recorded properly  or "must be a mistake" or spelt out something that was not true.      It must also be noted that there has been no finding as to when  the sub-tenancy in favour of the 4th respondent was created, and  this was  very necessary  in the facts of this case. Also  very relevant  is  the  fact  that,  though  the eviction petition  averred that  the  sub-tenancy  had  been created by  "opponents 1  to 3"  the landlord’s  evidence in examination-in-chief and  the findings were that it had been created by the original tenant, Shankarnarayana.      We find the conclusion of the High Court upon the issue of sub-letting  unreasonable, having  regard to  the record, and must set it aside.      In the  result, the appeal of the landlord (arising out of S.L.P.(C) No 21968 of 1995 (CC No.2547/95)) is dismissed. The appeal  No.8470/95  of  the  tenants,  (arising  out  of S.L.P.(C) 7933 of 1995) is allowed and the order of eviction passed against them is set aside. There shall be no order as to costs.

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