TARACHAND MEHTA v. THEMMAMMA — 1996 DIGILAW 421 (KAR)

A. M. FAROOQ, J. ( 1 ) ALL these three revision petitions are preferred under Section 50 of the Karnataka Rent Control Act by the respondents in h. r. c. nos. 2215, 2216 and 2217 of 1987. Respondents in these revision petitions were the eviction petitioners in the three h. r. c. petitions before the lower court. All the three eviction petitions were clubbed together by the trial court and a common order was passed in all the three cases. In this Order, parties will be referred to as landlords and tenants. ( 2 ) THE landlords instituted eviction petitions against the revision petitioners-tenants stating that the first eviction petitioner is the wife of one b. N. Puttanarasimhaiah @ rajanna and the petitioners 2 to 9 are the sons and daughters of the said puttanarasimhaiah, who has not been heard of from 29-3-1978 by the petitioners till the date of filing of the eviction petition. In spite of their best efforts from 29-3-1978, the said puttanarasimhaiah has not been heard of for more than 7 years by the petitioners, who would have naturally heard of him and therefore, under law, Sri b. n. puttanarasimhaiah is presumed to have been dead. It is further stated that the petitioners are the only legal heirs of the said puttanarasimhaiah and they have succeeded to his estate. It is further stated that the tenants in the three eviction petitions are monthly tenants under them on a monthly rentals of Rs. 350/-, Rs. 275/- and Rs. 475/- respectively. During the life time of b, n. Puttanarasimhaiah, he had borrowed a loan from grain merchants co-operative bank, Bangalore and in order to clear the loan, he had directed the tenants to pay the monthly rentals to the said bank with effect from 1-7-1977 for a period of 30 months and joint deed was executed on 1-7-1977 by puttanarasimhaiah and the three tenants in favour of the above mentioned bank. The landlords have further alleged, that in spite of the said agreement, the tenants have not paid the rents to the bank as agreed and therefore, they have fallen into arrears. Here itself, it is to be noted that the ground under Section 81 (1) (a) of the Rent Control Act is not pressed by the landlord. The landlords have further alleged, that in spite of the said agreement, the tenants have not paid the rents to the bank as agreed and therefore, they have fallen into arrears. Here itself, it is to be noted that the ground under Section 81 (1) (a) of the Rent Control Act is not pressed by the landlord. ( 3 ) IT is further alleged that the petitioners 7 to 9 were young and energetic and they are unemployed. The 7th petitioner was having sufficient experience to run a non-vegetarian restaurant and the petitioners want to start a non-vegetarian restaurant in the entire schedule building after effecting necessary alterations to suit their requirement and convenience and that they have the necessary financial capacity to start the said business. It is also stated by them that they have no fixed source of income to lead a decent life and therefore, they wanted to augment their income by starting the said business in the schedule premises, which are convenient and suitable for the said purpose. It is also stated by them that except the schedule premises, which are in occupation of the three tenants, they do not own or possess any other building in Bangalore. They therefore, reasonably and bona fide required the petition premises in the occupation of the tenants for their own use and occupation for the purpose of starting a non-vegetarian restaurant. They also pleaded comparative hardship in their favour. ( 4 ) AFTER the tenants appeared, they filed statement of objections resisting the eviction petitions. The respondents in house rent revision petition No. 1106 of 1994 (h. r. c. No. 2215 of 1987) and house rent revision petition No. 979 of 1994 (house rent control No. 2216 of 1987) filed almost similar objections. In their objections in para 1, this is what they have stated : "regarding the averments made in para 3 of the petitions, this respondent submits that he is not aware whether the petitioners 1 to 9 are the legal heirs of Sri puttanarasimhaiah. This respondent is also not aware, whether b. n. puttanarasimhaiah, has not been heard of from 29-3-1978 and that in spite of best efforts made by the petitioners, the whereabouts of Sri b. n. puttanarasimhaiah, are not known for more than 7 years. This respondent is also not aware, whether b. n. puttanarasimhaiah, has not been heard of from 29-3-1978 and that in spite of best efforts made by the petitioners, the whereabouts of Sri b. n. puttanarasimhaiah, are not known for more than 7 years. This paragraph of the objection statements is in reply to the averments made in the petition by the eviction petitioners stating that the first eviction petitioner is the wife of b. n. puttanarasimhaiah and the others are his children and the said b. n. puttanarasimhaiah has not been heard of from 29-3-1978 and for more than 7 years, his whereabouts are not known to the petitioners, who are the persons who would have naturally heard of him. The respondent in house rent revision petition No. 1138 of 1994 (h. r. c. No. 2217 of 1987), while denying the averments made in para 3, has stated in the objections that to the best of information of the tenants, no efforts have been made by any of the petitioners to find out the whereabouts of said b. n. puttanarasimhaiah and the said b. n. puttanarasimhaiah has made himself out of view recently for the past some time with a fraudulent designs for the second time in his career in collusion with the petitioners and the petitioners know about his whereabouts and the tenant is reliably informed that the said b. n. puttanarasimhaiah secretly visits the petitioners once in a way and during the period from 20-12-1979 to 19-01-1980, b. n. puttanarasimhaiah had personally met the tenant and received the rents and issued receipt for payment of rent on 21-1-1980. Therefore, it is submitted that under law, it cannot be presumed that b. n. puttanarasimhaiah is dead. They also denied that the petitioners are the legal heirs of the said b. n. puttanarasimhaiah and the question of legal heirs will arise only if b. n. puttanarasimhaiah is proved to be dead. He has denied all the other allegations made by the eviction petitioners. The tenants have stated that there is no bona fides at all in the claim made by the landlords and none of the petitioners has any experience or capacity to carry on any hotel business. It is also stated that the premises in their occupation are not suitable for any hotel business. The tenants have stated that there is no bona fides at all in the claim made by the landlords and none of the petitioners has any experience or capacity to carry on any hotel business. It is also stated that the premises in their occupation are not suitable for any hotel business. There is neither kitchen nor bathroom and not even a washing room available and therefore, no hotel can be run there. They pleaded greater hardship in case an order of eviction is passed against them. ( 5 ) ON these pleadings of parties, the court below formulated the following points for consideration :1. Whether there is relationship of landlords and tenant between the eviction petitioners and the tenants? 2. Whether the eviction petitioners had made out any ground under Section 81 (l) (a) of the act (which is now given up in this revision petitions) ? 3. Whether the schedule premises in these cases are reasonably and bona fide required by the petitioners for their occupation? And 4. Who will suffer greater hardship? ( 6 ) DURING the course of enquiry, the landlords examined petitioners 3 and 7 as p. ws. 1 and 2 and one more witness as P. W. 3 and marked 17 documents and tenants in each of the case examined themselves and examined one more witness as r. w. 4 and about 128 documents were marked. The trial court after consideration of the evidence on record, held all the points in favour of the landlords except the ground urged under Section 81 (2) (a) of the act which is now given up. On the question of the presumption under Section 108 of the Indian Evidence Act urged by the petitioners in their eviction petition itself, the court below held that the evidence adduced by the eviction petitioners were sufficient to come to the conclusion that b. n. puttanarasimhaiah has not been heard of for more than 7 years and therefore, he should be presumed to be dead under Section 108 of the Evidence Act. Thereafter, it considered the evidence of each of the witnesses both on behalf of the petitioners and the tenants and came to the conclusion that petitioners have satisfactorily established that they required the petition schedule premises reasonably and bona fide for their own use and occupation for the purpose of running a non-vegetarian restaurant, which could be run by P. W. 8 and his brothers. It also held that comparative hardship is in favour of the landlords since except the petition schedule premises, they do not own or possess any other premises, whereas the tenants are well off and they have other business and buildings. It also held that since the eviction petitioners have sought for the entire schedule premises in the occupation of the three tenants, it is not possible to partition the premises so as to direct partial eviction in each of the eviction petitions. Accordingly, it allowed all three eviction petitions under Section 21 (1) (h) of the act and directed the tenants to vacate and hand-over the vacant possession of the schedule premises to the landlords on or before 31-12-1994. All the 3 tenants have approached this court by preferring these revision petitions. ( 7 ) SRI V. Tarakaram, Learned Senior Counsel, Sri Padubidrira Ghavendra rao, senior Advocate and Sri b. k. sridhar, learned counsel appearing for the petitioners in h. r. r. p. No. 1106 of 1994, addressed combined arguments in respect of all the three eviction petitions and cited several judgments. ( 8 ) IT is necessary at this initial stage itself to consider the question whether the petitioners could maintain the eviction petitions filed by them in view of the fact that Sri b. n. puttanarasimhaiah, who was the original owner of the schedule premises has not been proved to be dead. It is submitted by the learned counsels appearing for the tenants revision petitioners that under Section 108 of the Indian Evidence Act, it was necessary for the persons, who approach the court to positively prove by reliable evidence that the person whom they allege missing has not been heard of for more than 7 years, that he has been actually missing and such evidence should be of persons, who naturally would have heard of the missing person. It is submitted by the learned counsels appearing for the petitioners that the first revision petitioner is the wife of Sri b. n. puttanarasimhaiah and others are his children. The wife of b. n. puttanarasimhaiah has not entered the witness box. Her evidence would have been the best evidence in the case and since she has not given evidence, adverse inference ought to be drawn against the eviction petitioners and the evidence given by petitioners 3 and 7 will not be of any significance. It is also submitted that even if the evidence given by p. ws. 1 to 3 is taken into consideration, that evidence is not sufficient to prove that b. n. puttanarasimhaiah has not been heard of for more than 7 years from the date of filing of the eviction petitions. On the other hand, Sri nagmohandas, learned counsel appearing for the petitioners submitted that two of the tenants have not specifically denied about the averments made by the eviction petitioners that b. n. puttanarasimhaiah has not been heard of since more than 7 years from the date of filing of the eviction petitions. Only the tenant in h. r. c. No. 2217 of 1987 (h. r. r. p. No. 1128 of 1994) has denied that b. n. puttanarasimhaiah is alive and he is being hidden by the eviction petitioners with ulterior motive and in fact the tenant himself has paid rents to him and has obtained receipt ex. R-1 (ex. R-58), dated 21-1-1980. ( 9 ) HERE itself I should mention that the court below has not made a specific point for determination as to whether puttanarasimhaiah who is the original owner of the schedule premises has not been heard of for more than 7 years from the date of filing of the petition as alleged by the landlords. Obviously, the court below has taken into consideration the objection statements filed by the two tenants, who have stated that they are not aware of the missing of puttanarasimhaiah and the tenant tarachand even though has denied in his objection statement about not knowing the whereabouts of puttanarasimhaiah for more than 7 years, has stated in his objection that petitioners have not made any search or enquiries about the missing of puttanarasimhaiah. However, the lower court has considered the evidence of p. ws. However, the lower court has considered the evidence of p. ws. 1 and 2, who have stated in their evidence that since 29-3-1978, they have not heard of their father, puttanarasimhaiah and they have also stated that they have given a missing complaint through one of their uncles. But the said uncle was not examined. The court below has also taken into consideration the evidence of the respondents also while considering the question about the missing of b. n. puttanarasimhaiah. The learned counsels appearing for the parties have also taken me through the entire evidence on record and also the other materials. It is true that under Section 108 of the Indian Evidence Act, when the question is whether a man is alive or dead and it is proved that he has not been heard of for seven years by those, who would naturally have heard of him, if he had been alive, the burden of proving that he is alive is shifted to the person, who affirms it. Therefore, in my view, what is to be proved by the persons, who state that such and such a person has not been heard of for more than 7 years is to put forth evidence to show that they are the persons who would have naturally heard of the missing person and for seven or more years they have not heard of him. The Section does not specify who are the persons, who would have naturally heard of a missing person, who has to be presumed to be dead. But in my humble view, it cannot be only the relatives like the wife, father, mother or children, it can be friends or any other person whose relationship with the missing person is such that they would have also normally would have heard of him. Such persons cannot be specified. Here in this case, not only P. W. 1 and P. W. 2 who are the sons of b. n. puttanarasimhaiah, but r. w. 1 and r. w. 3 who are the tenants of b. n. puttanarasimhaiah, are also persons who would have naturally heard of him. Such persons cannot be specified. Here in this case, not only P. W. 1 and P. W. 2 who are the sons of b. n. puttanarasimhaiah, but r. w. 1 and r. w. 3 who are the tenants of b. n. puttanarasimhaiah, are also persons who would have naturally heard of him. It is the admitted case of the tenants that puttanarasimhaiah has been collecting rents from them and they were eagerly waiting for the arrival of puttanarasimhaiah to collect rent from them, but b. n. puttanarasimhaiah did not turn up at all and therefore, they had to approach the court and file petitions under Section 19 of the Karnataka Rent Control Act and take permission of the court for depositing the rents. From this evidence of the tenants it can be held that b. n. puttanarasimhaiah has not been going to them to collect rents since some time earlier to 1981 when they filed petitions under Section 19. Therefore, the evidence of p. ws. 1 and 2 is corroborated by the evidence of the respondents themselves. This evidence coupled with the non-denial of the averments made by the eviction petitioners in para 3 of the eviction petitions by the two tenants, establish beyond any doubt that b. n. puttanarasimhaiah was not heard of for more than 7 years when the eviction petitions were filed. When the petitioners are able to prove about their not hearing of the whereabouts of b. n. puttanarasimhaiah for more than 7 years, the burden petitions to prove or show by evidence that b. n. puttanarasimhaiah is alive. Such evidence has not been adduced by any of the tenants. On the other hand, the tenants in their evidence have admitted about not knowing the whereabouts of b. n. puttanarasimhaiah at least from 1980. In the objection filed by the tenants tarachand mehta it is stated that he has received the rental receipt as per ex. R-1 (r-58), dated 21-1-1980, which is issued to him by b. n. puttanarasimhaiah. The same tenant has produced ex. R-85 showing that he has been paying the rentals to the grain merchants bank as agreed by him with b. n. puttanarasimhaiah by a written agreement. All the tenants have admitted about the tripartite agreement entered between them, b. n. puttanarasimhaiah and the bank. The same tenant has produced ex. R-85 showing that he has been paying the rentals to the grain merchants bank as agreed by him with b. n. puttanarasimhaiah by a written agreement. All the tenants have admitted about the tripartite agreement entered between them, b. n. puttanarasimhaiah and the bank. As per the agreement, they have to pay rents for 30 months to the bank starting from 1-7-1977. That period comes to an end only at the end of december, 1979. This fact is clearly admitted by all the tenants including tarachand mehta. Therefore, there was no occasion at all for tarachand mehta to get the rent receipt as per ex. R-l (r-58) as contended by him, since rent for the month of December 1979 rent was already paid to the bank. Therefore, it must be a concocted document, since he himself has admitted that he has paid all the rents as agreed to the bank for 30 months. Thirty months comes to an end by end of december, 1979 and therefore, question of paying the rent of January comes only in the month of february, 1980. As such, there is no question of this tenant paying January rentals to b. n. puttanarasimhaiah in January itself and b. n. puttanarasimhaiah issuing any receipt to him. None of the tenants have produced any receipt issued by b. n. puttanarasimhaiah earlier. It is not their case that b. n. puttanarasimhaiah has been issuing receipts in the printed form like ex. R-l (r-58 ). Ex. R-l is the only document produced by them stating that it is a rent receipt issued by b. n. puttanarasimhaiah. But this is falsified by his own admission. It is submitted by the learned counsel appearing for the petitioners that even though P. W. 1 has stated in her cross-examination that a complaint has been lodged about the missing of b. n. puttanarasimhaiah, copy of any such complaint has not been produced or the uncle, who according to P. W. 1 has filed the complaint has not been cited as a witness or examined in court. If there was no other evidence on record, some more evidence like the one contended by the petitioners would have been necessary to hold that b. n. puttanarasimhaiah has been not heard of more than 7 years from the date of filing of the petitions. If there was no other evidence on record, some more evidence like the one contended by the petitioners would have been necessary to hold that b. n. puttanarasimhaiah has been not heard of more than 7 years from the date of filing of the petitions. But here there is absolutely no dispute that for 7 years since 1987 when ex. R-l is issued to r. w. 3, none of the tenants have seen him. No other evidence has also been adduced by the tenants to show that b. n. puttanarasimhaiah has been found anywhere alive. Moreover, no material has been produced by the tenants to show any ulterior motive on the part of the eviction petitioners either to usurp the properties of b. n. puttanarasimhaiah or to cheat any other persons to claim the properties. On the other hand, the evidence and admitted facts on record show that b. n. puttanarasimhaiah had borrowed money from a bank and that amount has been cleared by the tenants, who had agreed with b. n. puttanarasimhaiah to pay the loan to the bank. Therefore, there was no occasion at all for the eviction petitioners to state falsely that they are the owners of the properties since b. n. puttanarasimhaiah has been not heard of for 7 years. Even if b. n. puttanarasimhaiah had been alive, he could have filed an eviction petition requiring the premises for the use of his sons. It is not the case of any of the tenants that there was any strained relationship between b. n. puttanarasimhaiah and eviction petitioners. Therefore, I do not find that there is any ulterior motive on the part of the petitioners to allege that b. n. puttanarasimhaiah has not been heard of for more than 7 years. The court below has considered all the evidence on record and has correctly come to the conclusion that the eviction petitioners have proved that b. n. puttanarasimhaiah has not been heard of for more than 7 years from the date of filing of the eviction petitions and they are his heirs. ( 10 ) SEVERAL judgments have been cited and they are:1. Gurudit singh v munsha singh. 2. Sodhi transport company and others v State of Uttar Pradesh and others. 3. N. Jayalaxmi animal and another v r. Gopala pathar and another. 4. Subhash ramachandra wadekar v union of India. 5. ( 10 ) SEVERAL judgments have been cited and they are:1. Gurudit singh v munsha singh. 2. Sodhi transport company and others v State of Uttar Pradesh and others. 3. N. Jayalaxmi animal and another v r. Gopala pathar and another. 4. Subhash ramachandra wadekar v union of India. 5. Prema aranti v tahsildar, coimbatore and others. 6. R. Gopala pathar v n. Jayalakshmi ammal and others. 7. Surjit kumar v jhujar singh. 8. Parikhot muduli and others v champa dei and others. 9. Ramrati kuer v dwarika prasad singh and others. in all these judgments, the principle laid down is that the burden of proving that a person has not been heard of for seven years or more is on the party, who affirms it and when once there is evidence to show that the person has not been heard of for more than 7 years, presumption under Section 108 of the Evidence Act arises and the burden is shifted to the party who asserts that the said person is alive and in all these judgments, it is held that there is no presumption that the person, who has not been heard of for seven years or more is presumed to be dead at a particular point of time and that has to be proved by evidence by the party who asserts it. Section 108 is a proviso to Section 107 of the Evidence Act. Section 107 of the evidence act reads thus : Section 107. Burden of proving death of person known to have been alive within thirty years. When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it. Section 108. Burden of proving that person is alive who has not been heard of for seven years-provided that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it. A division bench of this court in shankarappa v shivarudrappa and others , has held that Section 108 nowhere says that the presumption to be that the person concerned is dead on the date of the suit. Section 108 of the Indian Evidence Act merely deals with the procedure to be followed when a question is raised before the court as to whether a person is alive or dead. That Section does not lay down any presumption as to how long the person concerned must be deemed to have been alive or at what time he died. The relevant point of time at which the presumption under Section 108 is available is when the factum of the death of the person concerned becomes material and not the date of the suit. In parikhot muduli's case, supra, the Orissa High Court considering the scope of Section 107 and 108 of the Act, has held that there can't be any doubt about the legal position that if a person has not been heard of for 7 years, there is a presumption of law that he is dead. But at what time within that period that person died is not a matter of presumption, but of evidence and the onus of proving that death took place at any particular time within 7 years lies upon the person who claims right to the establishment of which that fact is essential. The Orissa High Court has further observed that for the purpose of the said case proving of death at a particular time is not essential and in view of the evidence on record, there could not be any doubt that chakra, who is the person involved in the said case left his house in 1940 and some 3 years after passing of the act has not been heard of since about 20 years that is, when the suit was filed. Once the Rule of presumption is invoked on the ground that a man is not heard of for 7 years, the plaintiff was entitled to ask for the relief he has asked on the footing that the man is dead. Here in this case, the eviction petitioners have stated that b. n. puttanarasimhaiah left his house on 29-3-1978 and since then he has not been heard of by any of the person, who would have normally heard of him. Here in this case, the eviction petitioners have stated that b. n. puttanarasimhaiah left his house on 29-3-1978 and since then he has not been heard of by any of the person, who would have normally heard of him. Even though the tenants filed objections and one of them specifically denied about b. n. puttanarasimhaiah being not heard of since 7 years earlier to the filing of the suit and specifically stated that one of them has met him and a rent receipt has been given to him. The material adduced to prove the same has been rejected by the court below and after reconsidering the same, I have held that the said document is contrary to the admission made by the said tenant r. w. 3 and the other document ex. R-1 (r-58) and ex. R-85, which is relied upon by r. w. 3. Therefore, the petitioners have proved that b. n. puttanarasimhaiah was not heard of for 7 years or more earlier to the filing of the petition. Hence, the lower court was correct in raising the presumption under Section 108 of the Evidence Act. In none of the judgments cited on behalf of the tenants, there is a contra view and as I have stated earlier, all the judgments have laid down the principle that the evidence to raise a presumption under Section 108 of the Evidence Act should be that the person has not been heard of for seven years or more by those who could have naturally heard of him. That evidence has been produced by the eviction petitioners. The question before the lower court was not whether b. n. puttanarasimhaiah was dead or alive. The question before the lower court was whether he has not been heard of for seven years or more from the date of eviction petitions. The lower court has correctly dealt with the question. I do not find any material to differ from the finding given by the court below on the said question. In view of the said finding, under Section 108 of the Evidence Act, it should be presumed that b. n. puttanarasimhaiah is dead and from the evidence of the petitioners, it is clear that the first petitioner is the widow of said b. n. puttanarasimhaiah and the other petitioners are his children. In view of the said finding, under Section 108 of the Evidence Act, it should be presumed that b. n. puttanarasimhaiah is dead and from the evidence of the petitioners, it is clear that the first petitioner is the widow of said b. n. puttanarasimhaiah and the other petitioners are his children. Even though the tenants do not admit that the petitioners are related to b. n. puttanarasimhaiah as alleged by them in their eviction petition, there is nothing to disbelieve the evidence of p. ws. 1 and 2 as to the relationship of the petitioners with b. n. puttanarasimhaiah. Therefore, the eviction petitions filed by the petitioners are clearly maintainable. ( 11 ) IT is submitted on behalf of the petitioners that the question raised by the tenants as to their relationship is a question relating to title and since the said question is a complicated question regarding title, the rent control court cannot decide such a question. Relying upon a decision in pratap singh v jaibunnisa begum , it is submitted that first the petitioners should establish their title in a competent civil court and thereafter file an eviction petition if the civil court holds that they are lawfully entitled to the petition schedule premises as owners. I do not think that any complicated question of title is involved in this petition. This is a simple case where the landlords have sought for possession of premises for their own use and occupation. In view of the circumstances, that b. n. puttanarasimhaiah, who was the original owner has not been heard of by the petitioners for more than 7 years they have approached the court and adduced evidence to that effect to raise a presumption of death in view of the proved fact. They have adduced evidence before the court, which proved that b. n. puttanarasimhaiah has not been heard of for seven years or more and petitioners are the legal representatives of b. n. puttanarasimhaiah as he is presumed to be dead. Therefore the petitioners are legally entitled to file the eviction petitions. I do not see any complicated question of title in the matter. Therefore, the judgment cited is not applicable to be facts of the present case. Therefore the petitioners are legally entitled to file the eviction petitions. I do not see any complicated question of title in the matter. Therefore, the judgment cited is not applicable to be facts of the present case. ( 12 ) IT is stated in the eviction petition that the third petitioner r. Pankaja, P. W. 1 has been employed and she is getting a salary of Rs. 2,500/- and the 4th petitioner is working in some private firm and is getting a salary of Rs. 400/- and apart from this income, which they get, they do not have any other source of income except from the rent to the petition schedule premises and it is further stated that the petitioners 7 to 9 are able youngsters and one of them has got himself trained in running a hotel and in order to augment their income, they wanted to set up a non-vegetarian restaurant in a portion of the premises after joining the portions of the premises in occupation of the three tenants, against whom they have filed the eviction petitions. It is stated that it is very difficult for the family to maintain themselves with the meagre income got by the third petitioner and the 4th petitioner and therefore, if they start a non-vegetarian hotel in the premises in question, they can very well maintain themselves. For the said purpose, they have produced materials apart from the oral evidence of p. ws. 1 and 2 and 3. A certificate ex. P-6 has been produced to show that the 7th petitioner has been working in a non-vegetarian hotel nearby and he has gained sufficient experience to run such a hotel. Further what the petitioners have urged and proved before the court is that in many places in bangalore, small hotels both vegetarian and non-vegetarian have come up and it is very profitable to run such hotels in and around Bangalore city. Not much experience is required to run such dhaba like hotel. In cross-examination of r. w. 4, they have brought out that what the landlords have stated is true that there are many such hotels in and around the area where the petition schedule premises is situated. Not much experience is required to run such dhaba like hotel. In cross-examination of r. w. 4, they have brought out that what the landlords have stated is true that there are many such hotels in and around the area where the petition schedule premises is situated. It cannot be disputed that the place where the petition schedule premises are situated is one of the busiest localities in Bangalore and if the eviction petitioners seeks to make use of the schedule premises for running such a hotel, that cannot be viewed with any suspicion. They have produced the plan ex. P-4, which show that provision is made for dining hall, kitchen, store-room and toilet. ( 13 ) THERE was dispute regarding space available in the three premises in question. However, the said dispute raised by the tenants, was ultimately settled when they had filed a revision petition before this court in civil revision petition nos. 1146 and 1147 of 1993 when it was accepted by all the parties including the petitioners herein that measurement as stated by them will be accepted. According to the petitioners, the total measurement of all the premises taken together is 390 square feet and not 420 square feet as alleged by the landlords. R. w. 4 could not deny that even hotels which are smaller in accommodation than the one mentioned above, have been given licence by the corporation. It is pertinent to note that it cannot be said that the prayer sought for by the petitioners is only a mere desire to run a non- vegetarian restaurant. On the other hand, the materials produced by the eviction petitioners show hot only they had made plan ex. P-4 and also the estimate that is required for the purpose of converting the premises into a hotel like premises and also obtaining of licence etc. , and also about their capability to spend that much amount by adducing evidence of P. W. 3, who is none other than their own brother-in-law, who has got a lodging house in kempegowda circle. All these evidence establish that the requirement of the petitioners is genuine. , and also about their capability to spend that much amount by adducing evidence of P. W. 3, who is none other than their own brother-in-law, who has got a lodging house in kempegowda circle. All these evidence establish that the requirement of the petitioners is genuine. ( 14 ) RELYING upon the principles laid down by this court under the Rent Control Act, it was argued on behalf of the petitioners that the landlords who seek eviction of the tenants under Section 21 (1) (h) of the act must not only show their desire, but their desire must be a genuine need which should be present in the requirement and there is lot of difference between the desire and a need and petitioners have failed to adduce such evidence before the court and therefore, the lower court was wrong in holding that the petitioners require the petition schedule premises for their own use and occupation. The court below has considered the evidence very elaborately and has weighed the same against the evidence of the tenants and it is only thereafter that the court below has come to a finding in favour of the landlords. ( 15 ) IT was also contended by the tenants before this court as well as the lower court that the schedule premises are not suitable to start a non-vegetarian restaurant. Even the court below has considered the same by examining the plan, evidence of the parties and also the admitted total space available and the undisputed fact that such small restaurants are seen even nearby the petition schedule premises and has come to the conclusion that if total area of the three petition schedule premises are available to the landlords, it will be suitable for them to run a non-vegetarian restaurant. This court in k. n. suryanarayanasetty v k. Sattarkhan and others, while considering the question under Section 21 (1) (h) of the act has observed that for starting of a provisional store in the nature of things, no elaborate arrangement or preparation is necessary. No expensive furnitures or other accessories are required. All that would be required is one or two racks to start with to keep the articles of daily use to be sold in the shop premises and to start the provision, it cannot be said that the funds required to be invested would be a large sum. No expensive furnitures or other accessories are required. All that would be required is one or two racks to start with to keep the articles of daily use to be sold in the shop premises and to start the provision, it cannot be said that the funds required to be invested would be a large sum. One can start the provision store with a small amount of Rs. 4,000/- to Rs. 6,000/ -. Therefore, the finding of the trial court that the petitioners have failed to show the arrangement they have made for establishment of a provision store and how much fund is readily available with them to establish their bona fides is unrealistic and it is further observed by this court that as regards the arrangement to be made by the landlord, the finance available with him would be relevant if he intended to establish a business on a large scale. But to establish a small business, no such preparation or arrangement is necessary. The cash on hand factor loses its relevance, more so with drastic changes in the economic policies and cash is freely available through the medium of financial institutions. ( 16 ) IN this case also, the petitioners are not establishing a big industry or a five star hotel. Such hotels which the petitioners are intending to open are found coming up like mushrooms all over Bangalore city and no such high investment is necessary to open such a hotel. Moreover, the petitioners have shown that the third petitioner, who is examined as P. W. 1 has been working in a government establishment and in 1987 she was earning a salary of Rs. 2,500/- and even the other petitioners have been doing some thing or the other to maintain themselves and it is also not in dispute that since the date of filing of the petitions, the tenants have been depositing the rents in court and I do not think there will be any dearth of funds for starting such a business for the petitioners. Therefore, the court below was perfectly right in holding that the petitioners have proved that they reasonably and bona fide required the petition schedule premises for their own use and occupation and that they have made all arrangements for starting of such a business and for the purpose of establishing such a business, they have got necessary funds and experience. Therefore, the court below was perfectly right in holding that the petitioners have proved that they reasonably and bona fide required the petition schedule premises for their own use and occupation and that they have made all arrangements for starting of such a business and for the purpose of establishing such a business, they have got necessary funds and experience. ( 17 ) IT is contended by the tenants that if an order of eviction is passed, they will be put to greater hardship than the petitioners, since they have been doing business since several years in the petition schedule premises. Petitioner in house rent revision petition No. 972 of 1994 is running a wine shop and the petitioners in house rent revision petition nos. 1106 of 1994 and 1128 of 1994 are running the shops dealing in electrical goods. For running electrical goods business, the tenants can get any number of premises if they are to pay some more rent. It is submitted by them that they cannot get a premises in the same road and therefore, it will be difficult for them to run such business anywhere else. It may be true that they may find it difficult to get an alternative premises in the same road, but most of the roads in and around the area are all busy roads where such business is carried on and it will not be difficult at all for them to find an alternative accommodation if they can pay more rents. ( 18 ) THE evidences on record show that all the tenants are very well off and all of them are having cars and houses and it will not be difficult for them to pay more rents to get alternative accommodation. All of them are income-tax assessees and evidence also show that tenant susheela bai wife of r. w. 2 who is running wine shop in one of the premises possesses a house and a shop adjacent to the house. However, r. w. 2, the husband of said susheela bai in his evidence while admitting that he owns and possesses a house nearby stated that he does not know who is running the business in the shop abutting the house. Therefore, even for the tenant susheela bai there will not be any difficulty to shift her business to another place. However, r. w. 2, the husband of said susheela bai in his evidence while admitting that he owns and possesses a house nearby stated that he does not know who is running the business in the shop abutting the house. Therefore, even for the tenant susheela bai there will not be any difficulty to shift her business to another place. It is submitted by the tenant that her house in ranganathaswamy temple street is near to the temple and no licence will be granted to her. It is stated by the said tenant that it is difficult for her to run a wine shop near the place where her house is situated. The materials on record show that business is being run in the name of susheela enterprises in the said building belonging to the said tenant. But her husband, r. w. 2 has surprisingly showed his ignorance as to who runs the said business. Further there is no evidence to show that no licence could be granted for a wine shop if it is being run in the said shop. It will not be difficult for the said tenant to shift her premises to any other place in and around the area and get the licence, from the excise department. Even assuming that it is difficult for her to run a wine shop anywhere-else because of the difficulties in getting the licence from the department, that cannot be made a ground to deprive the petitioners of getting their own premises for their genuine need. If an eviction order is not passed against the tenants, the landlords would be put to greater hardship than the tenants. ( 19 ) THE landlords after their father has disappeared has been looked after only by their sister P. W. 1 spending from her salary and they have undergone untold miseries and therefore, their desire to occupy their own premises and try their luck in running a non-vegetarian hotel appears to be very genuine and therefore, they will definitely be put to greater hardship than the tenants. The lower court has also considered all these aspects and has come to the same finding as regards the question of hardship. It was next contended by the tenants that the court below has not considered the question of partial eviction in respect of any of the tenements. The lower court has also considered all these aspects and has come to the same finding as regards the question of hardship. It was next contended by the tenants that the court below has not considered the question of partial eviction in respect of any of the tenements. The court below has in one paragraph has ' referred to the aspect of partial eviction and has held in view of the facts and circumstances of the case, it is not feasible to direct partial eviction. Even according to the tenants, their case is that if the entire area is given to the landlords-eviction petitioners, they cannot run a hotel business because for the purpose of running a hotel, they will require much more space than what is available to them from the three tenements. If that is the case, if partial eviction is made, it will not serve their purpose, for which the petitioners have come up before the court seeking an order of eviction. From all the three petition schedule premises the total space that will be available is admittedly 390 sq. Ft. For a dhabha like restaurant that much space is absolutely necessary. Considering all these circumstances it is not a case where partial eviction can be ordered in respect of any of the premises. ( 20 ) THEREFORE, after reconsidering the entire evidence on record, which has also been considered by the lower court, I fully concur with all the findings given by the lower court and I do not find any ground to interfere with the just order passed by the court below. I, therefore, dismiss all these revision petitions. Considering the facts and circumstances of the case, petitioners are granted time till the end of march, 1997 to vacate and deliver the vacant possession of the petition schedule promises to the landlords. No costs. --- *** --- .