( 1 ) IN this revision petition, the petitioner who is the landlord, has challenged the order dated 24-9-1975 of the District judge, Mysore, in H. R. C. Appeal No. 41 of 1971 reversing the order dated 21-9-1971 of the II Additional I Munsiff, mysore, in H. R. C. No. 28 of 1968. ( 2 ) PREMISES bearing No. 1583 situated at Yelwal Road, Devraj Mohalla, Mysore, which belonged to a joint family consisting of the petitioner, his father and his brothers, had been leased some time in about the year 1948 by the manager or Kartha oi the said joint hindu family to the respondent, a partnership firm consisting of 4 partners, on a monthly rent of Rs. 130 for carrying on the business of the firm. On or about 1-2-1964 there was a partition amongst the members o,f the said joint Hindu family, in which the said premises was allotted to. the share of the petitioner and, thereafter the respondent has recognised the petitioner as its landlord 1o the said premises. In the said partition, the petitioner was not allotted any other residential or non-residential premises in the City of Mysore. ' ( 3 ) ON terminating the tenancy, which was not necessary, vide Dhanapal chettiar v. Yeshodai Ammal AIR 1979 SC 1745 . , the petitioner as early as on 24-1-1968 filed a petition in H. R. C. No. 28 of 1968 under S. 21 (1) (h) of the Karnataka rent Control Act of 1961 (hereinafter referred to as the Act) for eviction of the respondent from the said premises. The petitioner alleged that he had no, residential or non-residential premises of his own and that he requires the premises for his residence and for carrying on his own business. He alleged that he proposes to reconstruct the building, for residence and for carrying on his business in accordance with the license granted by the municipality. ( 4 ) THE petition was resisted by the respondent on diverse grounds. While denying the allegations made by 'the petitioner, the respondent alleged that the original rent of Rs. 130 per month had been increased to Rs. 150 per month from 1-12-1965 and the eviction has been squght solely with the object of compelling it to pay further enhanced rent. While denying the allegations made by 'the petitioner, the respondent alleged that the original rent of Rs. 130 per month had been increased to Rs. 150 per month from 1-12-1965 and the eviction has been squght solely with the object of compelling it to pay further enhanced rent. In para 10 of its objection statement, the respondent referred to a 'panchayathi' or talk of settlement in which the petitioner had agreed to receive enhanced rent of Rs. 200 and effect repairs which he had not fulfilled. Lastly, the respondent vaguely alleged that the petitioner owns several houses in Mysore and had acquired several houses in the name of his close relatives and that he does not require the premises for his bona fide use and occupation. ( 5 ) ON a consideration of the evidence placed by the parties, the learned Munsiff by his order dated 21-9-1971 accepted the case of the petitioner and allowed his petition granting three months' time from that day to the respondent to vacate the premises. Against the said order, the respondent filed an appeal in h. R. C. Appeal No. 41 of 1971 before the learned District Judge along with an application under Order 41 Rule 27 of the Code of Civil Procedure viz. , I. A. No. II to receive addditional evidence. On 19-6-1973, the learned District judge allowed the said appeal and remitted the case to the learned Munsiff to give an opportunity on the additional evidence produced by the respondent, the correctness of which was challenged by the petitioner before this Court in c. R. P. No. 1993 of 1973. On 11-6-1974 venkataswami, J. , allowed the said revision petition and remitted the appeal to the learned District Judge for fresh disposal along with I. A. No. II in the light of the observations made in the said order. In pursuance of the remand order made by this Court, the very learned District Judge that had earlier decided the appeal, heard the appeal and by his order dated 22-9-1975 again allowed the appeal and dismissed the petition filed by the petitioner. On 12-11-1975, the petitioner has presented this revision petition under S. 50 of the act as it then stood. In order to sustain the order of the learned District Judge, the respondent has also filed I. A. Nos. III to V for reception of additional evidence. On 12-11-1975, the petitioner has presented this revision petition under S. 50 of the act as it then stood. In order to sustain the order of the learned District Judge, the respondent has also filed I. A. Nos. III to V for reception of additional evidence. I have heard the said I. As. along with the merits of the case. ( 6 ) SRI G. S. Visweswara, learned counsel for the petitioner, contended that the order of the learned District judge was illegal, incorrect and cannot be sustained. Elaborating his contention, , Sri Visweswara maintained that the findings reached by the learned District judge without reference to the reasons and the findings reached by the trial court, were based on inadmissible evidence or total misreading of the evidence on record. ( 7 ) SRI Padubidri Raghavendra Rao, learned counsel for the respondent vehemently supported the order of the learned District Judge on every one of the reasons given by him and also on other reasons and evidence which will be noticed by me and dealt at a later stage. ' ( 8 ) BEFORE examining the rival contentions, it is useful to notice that the order made by the learned District Judge is in an appeal filed under S. 48 of the Act as it then stood which did not place any restriction on the powers of an appellate authority except those that are well recognised. As ruled by a Full Bench of this Court in Haricharandas v. V. K. Satyanarayan ILR 1978 Kar, 1573 FB this revision petition has to be treated as one filed under S. 50 of the Act as it stood prior to the karnataka Rent Control (Amendment) act of 1975, which came into force with effect from 22-5-1975 and decided on that basis only. ( 9 ) S. 50 of the Act before its amendment empowered this Court to examine the legality or the correctness of the decision rendered by the District Judge. The scope of S. 50 as it then stood, has been interpreted by the Supreme Court and by this Court in a large number of rulings. In M|s. Central Tobacco Co. , bangalore v. Chandra Prakash (1969) 1 RCR 579. The scope of S. 50 as it then stood, has been interpreted by the Supreme Court and by this Court in a large number of rulings. In M|s. Central Tobacco Co. , bangalore v. Chandra Prakash (1969) 1 RCR 579. on the scope of S. 50 of the Act, the Supreme Court observed thus:"s. 50 of the Mysore Rent Control act, 1961 (hereinafter referred to as the 'act') gives the High Court power to call for and examine the records relating to any decision given or proceedings taken by the District Judge for the purpose of satisfying itself as to the legality or correctness of such decision, order or proceeding and it further empowers the High Court to pass such order as it thinks fit. The learned Judge of the High Court examined the evidence and differing from the finding of the District Judge came to the conclusion that the landlord had proved that he reasonably required the premises for his own use and occupation. The High Court held that the burden of proving that eviction would cause greater hardship on the tenant lay on him and topk the view that he had not discharged that burden. Counsel for the appellant contended first that it was not open to the High Court in exercise of its re- visionary jurisdiction to differ from the concurrent views of the two lower courts and, secondly, it had wrongly placed the burden of proof of greater hardship on the tenant and this vitiated its ultimate conclusion. As the re- visionary powers are couched in very wide terms we are not inclined to accept the first contention. "again in Dattonpant Gopalvarao Devakate v. Vithalrao Marutirao AIR 1975 SC 1111 . the supreme Court on the scope of that section observed thus:"it is true that the power conferred on the High Court under S. 50 is not as narrow as the revisional power visional power of the High Court under S. 115 CPC it is not also wide enough to make the High Court a second Court of first appeal. But having regard to the scheme of the Act and the power conferred upon the high Court under S. 50, the jurisdiction to go into the question of legality or correctness of the decision includes the power to reappreciate the evidence. But having regard to the scheme of the Act and the power conferred upon the high Court under S. 50, the jurisdiction to go into the question of legality or correctness of the decision includes the power to reappreciate the evidence. The High Court can interfere if the findings of the appellate Court are shown to be erroneous (See: Neta ram v. Jiwal Lal ( AIR 1963 SC 499 ) and P. K. Rukmini Bai v. Venkateswara Silk Hoose (AIR 1972 Mys. 143 (1971) (2) Mysore Law Journal 635 ). "from the above it is clear that it is open to this Court to reappreciate the evidence and decide the case finally also. But before doing so, it is useful to examine what an appeal is, the limitations recognised in deciding an appeal even in the absence of any limitation placed by the Act on the powers of an appellate court and whether the learned District judge, the first and final Court of appeal under the Act, has decided the appeal bearing those principles. ( 10 ) A proceeding under the Act is a civil proceeding. An appeal is a complaint to a superior Court against an order made by an inferior Court according to Lord Davey in Ponnamma v. Arumogam 1905 AC 390. , An appeal, strictly so called, is one "in which the question is, whether the order of the court from which the appeal is brought was right on the materials which that court had before, it. " In deciding an appeal, an appellate Court is required to examine the legality, correctness and propriety of the, order that is challenged before it. An appellate Court, in the absence of any restriction placed by the statute, has all the powers of the original Court, but, that does not necessarily mean' that an appellate Court can decide an appeal of the High Court under S. 115 of the code of Civil Procedure. But, at the same time, it is not wide enough to make the High Court a second court of first appeal. " in Dattaram v. K- Gururaja Bhat (1971) 2 Mys. L. J. 402. But, at the same time, it is not wide enough to make the High Court a second court of first appeal. " in Dattaram v. K- Gururaja Bhat (1971) 2 Mys. L. J. 402. on the scope of S. 50 of the Act, Range gowda, J. , in, the light of the interpretation placed by the Supreme Court in central Tobacco Company's case (3) observed thus: "when the High Court in the exercise of its revisional jurisdiction is of the opinion that the material evidence on record is ignored or a finding is such that on the evidence taken as a whole no court can give such a finding, or a decision is manifestly unjust, the High Court is entitled to interfere," in P. K. Rukmini Bai v. Vekateswara silk House (1971) 2 Mys. LJ. 635. , while reviewing all the authorities rendered till the date of that ruling, including Central Tobacco Company's case, on the scope of S. 50, datar, J. observed thus:"therefore, having regard to the scheme of the Mysore Kent Control act and the power conferred upon the high Court under S. 50 of the Mysore rent Control Act, the jurisdiction to go into the question of legality or correctness of the decision includes the power to reappreciate the evidence. An examination of the correctness of the finding on fact involves the actual reassessment of evidence, and therefore, this Court is entitled to go into the question of fact and arrive at a decision. "in Narayana Gangasa Bhure v. Ramachondra Ambasa Kalburgi (1977) 2 Kar. LJ. 202. , Venkatachaliah, J. , on the scope and ambit of the said provision observed thus: "it is true that while the power conferred on the High Court under S. 50 of the Act is not as narrow as the rewithout examining the reasons and conclusions drawn by the lower Court. On the other hand it is bound to consider the reasons and findings of the lower court and give reasons, for its concurrence or difference. ( 11 ) AN appellate Court in examining an appeal should always bear in mind, that on questions of fact that largely depend on oral testimony, the conclusions of the trial court will not be lightly interfered with, vide Sarju Prashad ramdeo Sahu v. Jwaleshwari Pratap narain Singh (9) and Radha Prasad singh v. Gajadhar Singh AIR 1960 SC. 115 . . 115 . . In Sarju pershad Ramdeo Sahu's case AIR 1951 SC. 120 . the supreme Court stated the principles in these words:"the rule is - and it is nothing more than a rule of practice - that when there is conflict of oral evidence of the parties on any matter in issue and the decision, hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate Court should not interfere with the finding of the trial Judge on a question of fact. The duty of the appellate Court in such cases is to see whether the evidence taken as a whole can reasonably justify the conclusion which the trial Court arrived at or whether there is an element of improbability arising from proved circumstances which, in the opinion of the Court, outweighs such finding. "another equally important well recognised principle touching on the credibility of witnesses, re-sta,ted by the Supreme Court in T. D. Gopalan v. Commissioner? H. R. C. E. Madras AIR 1972 SC 1716 . is this:"the universal practice in the matter of appreciation of evidence has been, that if the trial Court has given cogent and detailed reasons for not accepting the testimony of a witness, the appellate Court, in all fairness to it, ought to deal with those reasons before proceeding to form a contrary opinion about accepting the testimony which had been rejected by the trial Court". ( 12 ) IN the course of his fairly lengthy order, the learned District Judge nowhere refers to the reasons given by the learned Munsiff and to the conclusions drawn, much less, does he give reasons for discarding either of them. The only sentence if at all it can be said wherein he has adverted to the reasons, conclusions and the order of the learned Munsiff is para 5 of his order which reads thus:"on a careful consideration of the material placed before me, I am unable to agree with the findings of the learned Munsiff, since it is based on incorrect appreciation of the evidence on record. "after stating as above, which also undoubtedly gives an impression that he is examining the matter as if he was the trial Judge, the learned District judge proceeds to examine the evidence of each witness and rejects the testimony of the petitioner and his witnesses either on the ground that there is no pleading or the pleading is inadequate or there are contradictions. In a civil proceeding every minor contradiction or discrepancy cannot be a ground for wholesale rejection of the testimony of a witness. After rejecting the testimony of the petitioner and his witnesses, the learned District judge, almost blindly, accepts the testimony of the respondent and his witnesses Without even referring to the opinion expressed by the learned munsiff who had the benefit of recording their evidence and watching their demeanour. As I am able to apprehend, the learned District Judge appears to examine the case as if it was a criminal trial in which the guilt of a person had to be proved beyond all reasonable doubt, but not on probabalities and all the surrounding circumstances as is required in a civil case. An examination of the order made by the learned District Judge discloses that he has not kept before him any one of the well accepted legal principles, but he has decided the appeal as if he was deciding the very original petition on the evidence placed before him for the first time. From this it follows that the order of the learned district Judge is illegal, requires to be set aside on this score and the appeal remitted to him for fresh disposal. But, i do not propose to do so for more than one reason. Firstly the proceeding has been pending for more than 12 years, Secondly there has already been more than one remand. Lastly S. 50 of the Act empowers this Court to re-examine the matter and decide the case finally. For these reasons, I propose to examine the merits of the case bearing in mind the limitations on the exercise of my powers and decide the case finally. ( 13 ) WHILE the learned Munsiff rejects the plea of the respondent that the petitioner had sought for eviction with oblique motives, the learned District judge upholds the same and rejects the claim of the petitioner solely on that ground. ( 13 ) WHILE the learned Munsiff rejects the plea of the respondent that the petitioner had sought for eviction with oblique motives, the learned District judge upholds the same and rejects the claim of the petitioner solely on that ground. It is now necessary to examine, whether the reasons given and the conclusion drawn by the learned district Judge is sound. ( 14 ) IN his petition, the petitioner has specifically adverted to the panchayathi or settlement brought about by the well wishers of the, parties and the increase in rent from Rs. 130/- to rs. 150/ -. The increase in rent haying regard to the commanding position of the premises, the previous rate of rent and the affluent position of the petitioner is absolutely negligible. There is nothing strange if the petitioner after issuing notice of termination at the intervention of common friends agreed to permit the respondent to occupy the premises for a few more months acceding to the suggestion to receive an enhancement of Rs. 20/- per month. One important reason given by the learned District Judge for upholding the plea of oblique motive is that the petitioner had not specified the period for which he had agreed to receive enhanced rent, namely the period of six months in, the petition itself. Even though the petitioner had not specifically stated the same, it was not material for deciding the controversy and that omission could not be a ground for accepting the case of the respondent and rejecting the case of the petitioner. Secondly, as pointed out by the Supreme Court in Surajpal singh v. State AIR 1952 SC. 52 . a Court should be slow to throw out a claim on a mere technicality of pleading when the substance of the thing is there and no prejudice is caused to the other side, however clumsily or inartistically the plaint may be worded'. Lasitly, the slight increase in the rent having regard to the importance of the locality, the lease granted as early as in the year 1948, phenomenal increase in rents, the affluent position of the petitioner and the intervention of common friends cannot form a sound basis for holding that the petitioner is motivated to evict the respondent to secure higher rents only. ( 15 ) IN reaching his conclusion, the learned District Judge had relied on the testimony of D W-1 Sri. ( 15 ) IN reaching his conclusion, the learned District Judge had relied on the testimony of D W-1 Sri. Sundarajiyengar - a member of the Mysore Bar. DW-1 had only given a reply notice ex-D2 on the instructions of the respondent to the notice of termination of tenancy got issued by the petitioner ex-P3. DW-1 was not present at either of the settlements and had no personal knowledge. As rightly opined by the learned Munsiff the evidence of DW-1 was only hearsay and was inadmissible. The hearsay evidence of DW-1 cannot be acted upon merely on the ground that he is a respected member of the bar. I am at a loss to understand as to why DW-1 was at all examined. In this view, the reliance placed by the learned District Judge on the testimony of DW-1 was erroneous and illegal. ( 16 ) SO far as the other evidence, on the first settlement, the learned District Judge, attaches undue importance to unimportant details, unimportant contradictions and has not evaluated the evidence in the proper perspective, apart from totally ignoring the reasons and the conclusions drawn by the learned Munsiff. ( 17 ) BEFORE examining the reasoning and the conclusion of the learned district Judge on the second settlement, it is necessary to remember that it is the respondent that has pleaded the same in support of his case, that the petitioner had approached the court with an oblique motive of extracting higher rents. As the respondent has set up that plea, it is for him to prove that part of the case. But, very strangely the learned District judge holds that Huliyappa who was one of the panchayatdars or persons that participated in the settlement has not been examined by the petitioner and draws an adverse inference against him, which is obviously erroneous. ( 18 ) WHILE the learned Munsiff that had the benefit of watching the demeanour of the witnesses opines that P W-2 K. Narasegowda - is a truthful witness, the learned District judge appears to doubt his testimony on the ground that Huliyappa has not been examined and the petitioner is unable tc say whether DW-2, Vashumal bhagavandas was present or not at the second settlement. Very rightly the respondent also does not challenge the testimony of PW-2. Very rightly the respondent also does not challenge the testimony of PW-2. A reading of the evidence of PW-2 with due regard to the opinion expressed by the learned munsiff, would show that the learned district Judge was clearly in error in discarding the testimony of PW-2. ( 19 ) A considerable portion of the discussion of tne learned District Judge is devoted to the testimony of DW-2. On the testimony of DW-2, the learned munsiff that had the benefit of watching his demeanour has stated thus:"the evidence of this witness cannot be believed for very many reasons. Firstly, he is a casteman and a close associate of Arjundev; secondly, he had money transactions with arjundev and thirdly, there is evidence to show that this witness has taken a keen interest on behalf of the respondent during the course of these proceedings. The evidence of PW-3 kariappa goes to show that when PW3 was examined, this witness was present in Court. This witness being so much interested his evidence becomes unbelievable for the reasons that he states that he had gone to the shop of arjundev only once obviously on the day of Panchayath. Further, in the cross-examination he states that nobody had invited him as panchayatdar and that he went of his own accord as a casual passer by. Then again, in the cross-examination, he states that he does not know if one nanjundappa was present in the Panchayati. Then again he says that Kariappa was not present in the Pancha- yati and in the very next breath, he again says that Kariappa was present. Further, he states that already panchayati was going on and all the panchayatdars had assembled and were having discussions and he went last. If that is so, would it be possible for the petitioner to repeat and declare once more in the presence of this witness soon after his arrival that he wanted enhanced rent? Then again, the evidence of PWs-2 and 3, the two pancahyatdars is quite contrary to the version given by this witness. Therefore, I have to say that this witness is an untrustworthy witness and his evidence is unreliable. Then again, the evidence of PWs-2 and 3, the two pancahyatdars is quite contrary to the version given by this witness. Therefore, I have to say that this witness is an untrustworthy witness and his evidence is unreliable. "while this is the opinion expressed by the learned Munsiff, the learned District judge, obviously ignoring the same believes this witness and even discards) the testimony of the petitioner on the ground that he does not say whether this witness was present at the settlement or not. Even a cursory reading of the evidence of this witness would convince that he is almost a chance witness and the criticism of the learned Munsiff on his testimony is well founded. A court of appeal though entitled to reappreciate the evidence of witnesses and come to a different conclusion, would not be acting properly in accepting the testimony of such a witness whose testimony is discarded by the trial Court for valid and sound reasons. In cross-examination of the petitioner, he was asked whether he had seen DW-2 at the settlement to which he replied that he did not observe him. From this answer it would be erroneous either to reject the testimony of the petitioner or accept the testimony of DW-2. ( 20 ) IN his evidence before Court, the petitioner has stuck to his case that he never demanded higher rent and that he was not keen on higher rent but was keen on securing the premises for his bona fide use and occupation which is supported by the independent evidence of PWs. 2 and 3. Even all the circumstances earlier referred by me which have been examined by the learned Munsiff with care and thoroughness, do not support the theory of the respondent that the petitioner had sought for his eviction with the oblique motive of securing enhanced rent or was keen on evicting him and let out the premises to others. Arjundev, one of the partners of the. firm examined as DW-3 admits the nature of the business carried on by the petitioner, the diminution of place business and the fact that he has no other shop premises to carry on his business. Arjundev, one of the partners of the. firm examined as DW-3 admits the nature of the business carried on by the petitioner, the diminution of place business and the fact that he has no other shop premises to carry on his business. When a person doing a business and who has no other shop; premises of his own requires the same for doing his business, it would be erroneous to hold that he has not proved his case on the ground that he received an enhanced rent of Rs. 20/- per month after the first settlement. ( 21 ) ADMITTEDLY the second settlement was broached after the institution of H. R. C. No. 28 of 1968 by the petitioner. Both parties were aware of the pendency of the case filed by the petitioner. As on the first occasion, the respondent was keen to have the matter amicably settled for which purpose he requested the common friends to intervene. Anything stated in the course of such a settlement by any of the parties or by the common friends who have been examined as witnesses would, be hit by the second alternative of S. 23 of the Evidence Act and is, therefore inadmissible in evidence S. 23 appears to recognise the legal principle enunciated in several English cases and notably in Walker v. Wilsher 1889 (Vol. 23) LR 335 neatly summarised by Sarkar on evidence 12th edition at page 215. In this view, the reliance placed by the learned District Judge on the testimony of the witnesses or that part of the testimony of those witnesses that had participated in the second settlement should have been excluded and should not have been relied upon by him. ( 22 ) AS on the day the petitioner instituted the petition, he was not in occupation of a residential or non-residential premises. But, subsequently and even before the learned Munsiff decided the case, the petitioner has been able to secure a residential accommodation and that is not disputed by him. Even though the respondent has vaguely alleged that the petitioner has secured non -residential accommodation during the pendency of the proceedings, no material has been placed before the Courts below or before this Court to hold that the petitioner has secured a non-residential accommodation. Even though the respondent has vaguely alleged that the petitioner has secured non -residential accommodation during the pendency of the proceedings, no material has been placed before the Courts below or before this Court to hold that the petitioner has secured a non-residential accommodation. According to the petitioner he proposes to make alterations to the building for which purpose he had also obtained a license and use the same for his residential and non-residential purposes. So far as the capacity of the petitioner to make the alterations to the building, it is not disputed by the respondent. Even the respondent admits that the petitioner is carrying on one or the other business and that he has no shop premises of his own for carrying on that business. When a landlord requires his own premises for carrying on his own business whatever may be the nature of that business, it is not open to a tenant to say that the landlord should not be permitted to occupy the same and carry on his business. The Act does not confer any such right on a tenant. What business should be carried on by a landlord and from which place are all matters, for the landlord himself to decide. All that the court has to examine is whether his need is reasonable and bona fide. When the trial court which had the benefit of watching the demeanour of the witnessses, applying the correct legal principles, holds in favour of a landlord, an appellate or a revisional Court should be slow to interfere with such a finding. ( 23 ) LEARNED Counsel have taken me through the entire evidence on record. On an examination of the evidence, bearing the principles noticed by me earlier, I am of the opinion, that the finding recorded by the learned Munsiff on the reasonable and bona fide need of the petitioner, does not suffer from any illegality or impropriety and there was no justification for the learned District judge to upset that finding, which is vitiated for more than one reason noticed by me earlier. ( 24 ) SRI Raghavendra Rao urged that the nature of business carried op by the petitioner was such that it did not require a separate building and the same can be carried on from his own house as is now done by him all these years. ( 24 ) SRI Raghavendra Rao urged that the nature of business carried op by the petitioner was such that it did not require a separate building and the same can be carried on from his own house as is now done by him all these years. He maintained that the petitioner was supplying goods to Governmental departments and other agencies on tender- contract basis and the same does not require a separate building at all. ( 25 ) WHEN the petitioner's plea that he requires the premises for carrying pn his business is accepted, I fail to see as to how a distinction at all can be made, as contended by Sri Raghavendra rao. Secondly, the fact that the petitioner has been somehow carrying on his business all these years in the absence of the respondent vacating the premises, does not. mean that he should continue to suffer the same inconvenience or difficulties and a decree for eviction should be refused on that count. Lastly, as to what kind of business the petitioner proposes to do from time to time in the premises is a matter exclusively for him to decide and a Court cannot compel him to do a particular business in a particular premises of his own. For these reasons, I see no merit in the alternative contention urged by Sri raghavendra Rao for the first time before me and I reject the same. ( 26 ) BEFORE examining the question of comparative hardship, it is useful to deal with applications - I. A. Nos. III to v-filed by the respondent before this court for reception of additional evidence which are opposed by the petitioner. ( 27 ) IN I. A. No. 3 the respondent has sought for reception of additional evidence in a proceeding bearing H. R. C. No. 198 of 1971 filed by the wife of the petitioner wherein she had sought or eviction of shop premises from the espondents named therein which has been allowed by the trial Court. Against the order made in that case, an appeal has been filed by the tenants and an order of stay has been obtained which is not disputed by the respondent. Firstly, the said proceeding is not against the petitioner; secondly the said proceeding has not become final. Against the order made in that case, an appeal has been filed by the tenants and an order of stay has been obtained which is not disputed by the respondent. Firstly, the said proceeding is not against the petitioner; secondly the said proceeding has not become final. In these circumstances, I do not see sufficient ground to allow I. A. No. 3 and consider the evidence produced along with the said application. ( 28 ) IN I. A. No. IV, the respondent has sought for permission to produce a photograph and a certified copy of the registered sale deed dated 28-1-1974 executed by one S. T. Sheshagiriyappa in favour of M. N. Leela alias Lalithamma, a minor daughter of the petitioner. In his objections, the petitioner has disputed the authenticity of the photograph produced by the respondent and has alleged that the name board found therein does not refer to him. Along with the photograph the negative of the same is not produced by the respondent. Secondly, at this stage it would be hazardous to permit the reception of the said photograph and embark on a detailed enquiry on that aspect. In his counter to I. A. No. IV, the petitioner does not dispute the execution of said sale deed, but has asserted that the said building also is in occupation of the tenants and the same is also not useful for his business. In these circumstances, no useful purpose would be served by permitting the reception of the sale deed dated 28-1-1974 produced by the respondent. In this view, I. A. No. IV is also liable to be rejected. ( 29 ) ALONG with I. A. No. V, the respondent has produced a sealed packet alleging that it contains the original tape record, recording the entire conversation that took place among the various persons in the second settlement and has sought leave to play the same during the course of arguments. Before the trial Court the respondent did not seek to produce the tape record that was then avilable and the Court did not refuse to admit the same in evidence. Even the authenticity of the tape record is seriously disputed by the respondent. When, the respondent failed to produce evidence that was available with him, the question of its non-admission does not arise. Even the authenticity of the tape record is seriously disputed by the respondent. When, the respondent failed to produce evidence that was available with him, the question of its non-admission does not arise. As the respondent had failed to produce the tape record, which was in his possession when evidence was recorded before the trial Court, it is not permissible for me to admit the tape record much less play the same and rely on it. I. A. No. V is, therefore, liable to be rejected. From the foregoing, it follows that I. A. Nos. II to V are liable to be rejected and are accordingly rejected. ( 30 ) AS I have disagreed with the finding of the learned District Judge on the reasonable and bona fide need of the petitioner and agreed with the. finding of the learned Munsiff on that question, it is now necessary to consider the question of comparative hardship under Section 21 (4) of the act. ( 31 ) AFTER holding that the petitioner does not reasonably and bona fide require the premises, the learned district Judge proceeds to examine the question of comparative hardship also under S. 21 (4) of the Act and holds on that question also in favour of the respondent. When once a Court holds that a landlord has not made a case for eviction, the question of examining the comparative hardship does not arise. Such a question arises only when the Court holds that a landlord has made out a case for eviction of his tenant and not otherwise. In examining the question of comparative hardship, the learned District Judge does not refer to the reasoning and conclusion of the learned Munsiff as he was bound to. As I am able to understand, the one and the only reason given by the learned District Judge to hold that question in favour of the respondent is that he had stored articles worth lakhs of rupees in the building and a decree for eviction would cause him hardship and injury, which on the face of it is erroneous. For all these reasons it is safer to ignore the finding of the learned District Judge on this question and examine the case of the parties bearing the correct legal principles and the finding recorded by the learned munsiff. For all these reasons it is safer to ignore the finding of the learned District Judge on this question and examine the case of the parties bearing the correct legal principles and the finding recorded by the learned munsiff. ( 32 ) ON the question of comparative hardship, the learned Munsiff bearing in mind the principles enunciated by the Supreme Court in Central Tobacco co. , case noticed and followed by this court in C. V. Hayagriv v. Mysore Silk museum (1971) 1 Mysl. J. 322 has examined the case of the parties and has found that greater hardship would be caused to the petitioner if a decree for eviction is refused. Whenever a decree for eviction is made, undoubtedly there would be some inconvenience to a tenant. But, that inconvenience will not be a case of greater hardship to a tenant. On a critical and proper examination of the entire evidence on record and all the circumstances, the learned munsiff has found that greater hardship would be caused to the petitioner if a decree for eviction is refused. Every one of the reasons given by the learned Munsiff and the evidence on record fully justifies the conclusion drawn by the learned Munsiff. Before me, one and the only circumstance that is now urged to disagree with that finding of the learned Munsiff is that the petitioner does not require the premises for the nature of the business he is carrying on and can continue to carry on his business as is being done by him all these years or in some other shop building purchased in the name of his wife or daughter. While examining the reasonable and bona fide need of the parties, I have rejected this part of the submission of the respondent. So far the petitioner has not been able to secure any shop premises of his own. When that is so, J do not see as to how this Court can disagree with the finding of the learned Munsiff on the question of comparative hardship. As pointed out by the learned Munsiff, the respondent has not even made any attempt to secure alternative accomodation though non-residential buildings are being constructed in and around the area where it is carrying on its present business. As pointed out by the learned Munsiff, the respondent has not even made any attempt to secure alternative accomodation though non-residential buildings are being constructed in and around the area where it is carrying on its present business. After all Mysore city is a growing city and if an earnest attempt is made it is possible for the respondent to secure an alternative accommodation within a reasonable time. In these circumstances, I haye no hesitation in agreeing with the opinion expressed by the learned munsiff on the question of comparative hardship. ( 33 ) SRI Raghavendra Rao urged that in any event this is a fit case in which a decree in respect of a portion of the premises should be granted in favour of the petitioner so as to relieve the hardship to the respondent. ( 34 ) SRI Visweswara urged that the extent of the premises being so small, it is impossible To grant a decree in respect of a part of the premises. ( 35 ) IN their pleadings, evidence and at the hearing, neither of the parties have laid any foundation for passing a decree in respect of a part of the premises. In the absence of as plea and a contention, the Courts below have not rightly examined the question. When that is so, normally it would not be proper for this Court, for the first time, to examine that question and decide the same. But, still I have examined this aspect of the matter and found that the premises being so small, the same cannot be reasonably bifurcated and arrangements made to accommodate the petitioner and the respondent in the said premises and grant a partial decree in respect of a part of the premises. In this view I reject this contention of Sri Raghavendra Rav ( 36 ) ADMITTEDLY, the respondent is in occupation of the premises and, therefore, it is necessary to give him reasonable time to vacate the premises. In my opinion, having regard to all the facts and circumstances of the case, it is reasonble to grant time to the respondent to vacate the premises till 31-12-1980. In my opinion, having regard to all the facts and circumstances of the case, it is reasonble to grant time to the respondent to vacate the premises till 31-12-1980. ( 37 ) IN the light oi my above discussion, I allow this revision petition, set aside the order dated 24-9-1975 of the learned District Judge in H. R. C. Appeal No. 41 of 1971 and restore the order dated 21-9-1971 of the learned munsiff in H. R. C. No. 28 of 1968. But, the respondent is granted time till 31-12-1980 to vacate the premises. ( 38 ) CIVIL Revision Petition allowed with costs. Advocate's fee Rs. 100| -. --- *** --- .