H. RANGAVITTALACHAR, J, J. ( 1 ) THIS petition under Section 50 of the Karnataka Rent Control act (for short 'the Act') is by the tenant and the alleged sub-lessee, petitioners herein, against the order of the Judge of small causes, bangalore passed in HRC No. 332/86 allowing the petition of the landlady. ( 2 ) THE respondent's deceased husband one B. S. Ganesha Rao filed an eviction petition in HRC No. 332/1986 on two grounds:- ( 3 ) THAT the first petitioner contrary to the law and the agreement has transferred the schedule premises by way of sub-lease to the second petitioner herein. Therefore they are liable to be evicted under section 21 (1) (f) of the Act. ( 4 ) THAT the first petitioner is having a suitable premises of his own in the civil area and therefore liable to be evicted under Section 21 (1) (p ). ( 5 ) SUBSEQUENTLY the said Ganesha Rao by means of amendment added one more ground of eviction namely that he was an unemployed person and in order to spend his time usefully wants to start a business independently of his own and therefore he also requires the schedule premises reasonably and bonafide for his own use and occupation. ( 6 ) SUBSEQUENTLY the said Ganesha Rao died on 7. 1. 1998 and the present respondent came on record as his legal representative. After she came on record as the petitioner she again amended the eviction petition by deleting para 12 (a) whereunder Ganesha Rao had sought eviction for his own use and occupation and also substituted the same by inclusion of the sub-para After the death of the petitioner, it has become difficult for the L. R. of the petitioner to spend her time. She has no gainful avocation of her own. The L. R. of the petitioner has decided to start a cosmetic and bangle stores in the petition scheduie property. She has got the wherewithal and experience to do that business. The L. R. of the respondent has no other suitable premises except the petition schedule premises. In fact, the petition schedule premises is highly suitable having due regard to its location. Hence, the L. R. of the petitioner requires the premises to start business of her own in the petition schedule premises. The L. R. of the respondent has no other suitable premises except the petition schedule premises. In fact, the petition schedule premises is highly suitable having due regard to its location. Hence, the L. R. of the petitioner requires the premises to start business of her own in the petition schedule premises. " ( 7 ) THE petitioners filed their objections to the Eviction Petition with its amendment denying the requirement of the landlady either as reasonable or bonafide. Petitioner No. 1 also denied that he had sub-leased the premises. He also denied that he owned a premises in the civil area. ( 8 ) THE learned Judge of Small causes dismissed the eviction petition filed under Section 21 (1) (p) but however held that the landlady requires the premises reasonably and bonafide for her own use and occupation and also that respondent No. 1 had sub-leased the property to respondent No. 2. Aggrieved by the same both the respondents have filed this petition. ( 9 ) SRI C. B. Srinivasan Learned Counsel appearing for the petitioners herein i. e. respondents in Court below has contended that the petition lacks bonafides inasmuch as what has been pleaded by the landlady in her amendment petition is that the schedule premises is required to start a 'cosmetic and bangle store' but what has been held by the Court below on the basis of the evidence is that the same is required, for the business in 'stationery'. According to him there is a veriation between pleadings and proved which takes away the bonafides. ( 10 ) HE further submitted that the finding of the learned Judge that petitioner No. 1 had sub-leased the premises to petitioner No. 2 is by a misapprehension of the principles enunciated by the Supreme court inasmuch as according to him in order to prove sub-lease the landlady has to establish that the original tenant had parted from his possession and the sub-lessee is in exclusive possession of the premises. In this case according to him admittedly there is no evidence on record to the said effect. Therefore he submitted that the order of the Court below is liable to be set aside and consequently eviction petition is to be dismissed. In this case according to him admittedly there is no evidence on record to the said effect. Therefore he submitted that the order of the Court below is liable to be set aside and consequently eviction petition is to be dismissed. ( 11 ) SRI Varadaraj lyengar Learned Counsel appearing for the landlady respondent submitted that even though there is variation between the pleading and proof no serious note of it can be taken as the tenants had participated in the proceedings without any objection and cross-examined the landlady and have not shown any prejudice and in that view the finding of the Trial Court cannot be faulted. ( 12 ) HE secondly submitted that by a reading of Exhibit R. 2 produced by petitioner No. 1 it is clear that he had parted exclusive possession in favour of petitioner No. 2 in that view he submitted that the Trial Court was perfectly justified in holding that there was sub-lease. ( 13 ) IN view of these rival submissions the following points arise for consideration:-1. Whether the Trial Court was justified in holding that the respondent-landlady required the schedule premises for her own use and occupation to start the business in 'cosmetics and bangles?'2. Whether petitioner-1 had sub-leased the premises to petitioner-2 as held by the Trial Court?the ground on which eviction sought under Section 21 (1) (h) as pleaded is:-"after the death of the petitioner as it has become difficult for the l. R. of the petitioner to spend her time she having no gainful avocation of her own has decided to start a Cosmetic and Bangle stores in which she has got experience she requires the petition schedule premises for carrying on the said business. The LR of the petitioner has no other suitable premises for carrying on the said business except the schedule premises" ( 14 ) THE pleadings does not indicate that there was any element of need for the respondent landlady for starting the business. 1072 INDIAN LAW REPORTS 1998 KARNATAKA SERIES however during the Trial the evidence led by her in the examination in chief is as follows:- rfrf, rtocs^ kdrarfo3tf ?3s?and ws5rzj,33) S. estrfe eortaoifcockfc, ( 15 ) THUS it is clear that what has been pleaded in the eviction petition seeking eviction under Section 21 (1) (h) is to start a business of 'cosmetic and Bangle Stores'. But in the evidence what has been stated is to start a business in 'stationery shop'. Secondly the reason for starting the business is not that there is any element of need but only for the purpose of spending her time as it has become difficult in spending the time without any avocation. The submission that was made by Sri Varadaraja lyengar that it is not necessary for the landlady to plead the nature of business. It is sufficient if she indicates the purpose and the particulars may be filled up by leading evidence. He relied on a decision of the Supreme Court reported in RAJ kumar KHAftan vs. BIBI ZUBAIDA KHATUN1 which it is held as follows:-"that the plaintiffs require the Schedule II property for their personal necessity and the defendants are deliberately avoiding to vacate the same in spite of the fact that other building for carrying on the business may be available to the defendants. It is clear from the averments made in the above quoted paragraphs that the plaintiffs asserted that there was no other means of livelihood with them and as such they wanted to set up their own business in the premises in dispute. The High Court, however, came to the conclusion that apart from above quoted pleadings it was necessary to plead the nature of the business which the appellants-plaintiffs wanted to start in the premises. We are of the view that the High Court fell into patent error. It was not necessary for the appellants-landlords to indicate the precise nature of the business which they intended to start in the premises. Even if the nature of business would have been indicated nobody could bind same business in the premises. "that was a case where the petitioner has pleaded that he had no other business. But he had not pleaded the nature of business which he intends to start. The Supreme Court held that it was permissible to fill up the same by leading evidence. In this case the petitioner has put forward her definite case in the pleadings by pleading that she requires the premises for starting the business in 'cosmetics and Bangles Store'. What she has sought in the evidence is not to fill up the particulars, but coming out with a new case altogether viz. , to start the business in stationery shop. What she has sought in the evidence is not to fill up the particulars, but coming out with a new case altogether viz. , to start the business in stationery shop. Therefore the said decision in my view has no application to the facts of this case. He nextly relied on a decision of the Supreme Court in DUGGI veera VENKATA GOPALA SATYANARAYANA vs. SAKALA VEERA ragahavaiah wherein it has been held as follows:"there can be no doubt that under the law of pleadings facts mentioned in sub-clause (iii) are to be pleaded in the petition and thereafter proved to the Trial for the purpose of an order of eviction against the tenant. "their Lordships also relied on the earlier decision in HASMAT rai vs. RAGHUNATH PRASAD AIR 1981 SC 1711 wherein it has been held that the landlord has to plead and establish that he bdnafide requires the accommodation let to the tenant for non-residential purposes for the purpose of continuing or "starting his business. " ( 16 ) I am unable to understand how this decision helps him. Per contra the decision is to the effect that "petitioner in an eviction petition in order to succeed has to plead his case and thereafter lead evidence on such pleadings". ( 17 ) HE then relied on the decision of the Punjab High Court in GANDA SINGH vs. RAM NARAIN SINGH wherein it has been held:-"the basic rule of law of pleadings is, that a party can only succeed according to what he has alleged and proved, otherwise, on the principle of "secundum allegata at et probata' a party is not allowed to succeed, where he has not set up the case which he wants to substantiate. This rule that pleadings and proof must correspond, rests upon the principle that no party should be prejudiced by being taken by surprise by varying the case as originally set up. " ( 18 ) THIS case also in my view supports the contention that it is not permissible for a landlord to base his claim on a particular ground for eviction and lead evidence totally on a separate ground of eviction. " ( 18 ) THIS case also in my view supports the contention that it is not permissible for a landlord to base his claim on a particular ground for eviction and lead evidence totally on a separate ground of eviction. ( 19 ) HE then relied on the decision in MAHENDRA MAHTO vs. SURAJ PRASAD OJHA wherein it has been held as under:-"in order to determine what in fact the dispute between the parties to a suit is one has to look to the peadings, issues framed in the suit and the evidence adduced. The expressions used by the judge in his judgment alone will not have the effect of altering the case made out by the parties in their respective pleadings. " ( 20 ) IN fact this decision rather than supporting his contention strengthens the well accepted proposition that in order to succeed the party has to lay the foundation by pleading and then leading evidence, on such pleadings. ( 21 ) HE further submitted admittedly the tenant and the alleged sub-lessee had participated in the proceedings without any prejudice. At no point of time during the proceedings they objected or pleaded that prejudice is caused on account of the veriation in the pleadings. They have also cross-examined the landlady on the point that she required the premises for starting "stationery Shop" in the premises. According to him the tenant having participated in the proceedings having cross-examined cannot be held to have been prejudiced by such a variation between the pleadings and proof as has been held by the Supreme Court in the case of NAGUBAI AMMAL vs. B. SHAMA RAO as follows:-"it was argued for the appellants that as no piea of lis pendens was taken in the pleadings, the evidence bearing on that question could not be properly looked into, and that no decision could be given based on Exhibit J-seriea that the sale dated 30th January, 1920, was affected by lia; and reliance was placed on the observations of Lord Dunedin in SIDDIK MOHAMED SHAH vs. MT. SARAN AND OTHERS (AIR 1930 PC) (1930) 58 MLJ), that no amount of evidence can be looked into upon a plea which was never put forward. SARAN AND OTHERS (AIR 1930 PC) (1930) 58 MLJ), that no amount of evidence can be looked into upon a plea which was never put forward. The true scope of this rule is that evidence let in on issues on which the parties actually went to trial should not be made the foundation for decision of another and different issue, which was not present to the minds of the parties and on which they had no opportunity of adducing evidence. But that rule has no application to a case where parties go to trial with knowledge that a particular question is in issue, though no specific issue has been framed thereon, and adduce evidence relating thereto. The rule applicable to this class of cases is that laid down in RANI CHANDRA KUNWARR vs. CHAUDHRl NARPAL singh: RANI CHANDRA KUNWAR vs. RAJAH MUKUND singh (1906-07) 17 MU 103 ). There, the defendants put forward at the time of trial a contention that tne plaintiff had been given away in adoption, and was in consequence not entitled to inherit. No such plea was taken in the written statement; nor was any issue formed thereon. Before the Privy Council, the contention was raised on behalf of the plaintiff that in view of the pleadings, the question of adoption was not open to the defendants. It was held by Lord Atkinson overruling this objection that as both the parties had gone to trial on the question of adoption, and as the plaintiff had not been taken by the surprise, the plea as to adoption was open to the defendants, and indeed, the defendants succeeded on that very issue. This objection must accordingly be overruled" ( 22 ) THAT was a case where the Supreme Court was dealing with the rights of the parties in a civil matter. But in the rent control proceedings the nature of enquiry is not the same. Section 21 of the Rent Control Act reads as under:-"notwithstanding anything to the contrary contained in any other law or contract no order or decree for recovery of possession of any premises shall be made by any court or other authority in favour of the landlord against the tenant. Section 21 of the Rent Control Act reads as under:-"notwithstanding anything to the contrary contained in any other law or contract no order or decree for recovery of possession of any premises shall be made by any court or other authority in favour of the landlord against the tenant. " ( 23 ) UNDER the rent control proceedings it is the duty of the court to examine whether the landlord is entitled to an order of eviction having regard to the various clauses stated therein. ( 24 ) THE variation between the pleadings and proof assumes importance in appreciating the bonafides of the parties seeking eviction. But in this case it is not merely a case of variation between pleadings and proof but the purpose for which the landlady seeks eviction is not because there is some necessity or some element of need but only to spend her time. Therefore in the context of this case and in the situation where her husband wanted to start the business earlier for a cloth shop and subsequently after his death he sought amendment seeking eviction on the ground that the premises is required for starting a stationery shop it cannot be said in this situation that the requirement is reasonable and bonafide. The learned Judge of the Small Causes has completely ignored this point but has proceeded to consider the case as if the landlady requires the premises for starting a stationery shop and therefore in my view the said finding cannot be sustained. in so far as the second point whether the original tenant petitioner 1 has sub-teased the premises and therefore liable to be evicted is concerned the pleading in this aspect is 'that the second respondent has been doing business in the schedule premises under the name and style of Navarathnamal and he has been doing business for the last several months and when the petitioner visited the shop to his surprise he found that the first respondent has not been doing business. On the contrary the second respondent is doing business". The petitioner has not stated that the original tenant has completely parted with his possession and the alleged sub-lessee is put in his place who is in exclusive possession of the same. On the contrary the second respondent is doing business". The petitioner has not stated that the original tenant has completely parted with his possession and the alleged sub-lessee is put in his place who is in exclusive possession of the same. The evidence led by the landlady in this behalf is: ( 25 ) SRI Varadaraja lyengar relied on Exhibit R. 2 and contended thai it amply proves the sub-lease. He submitted that clause (6) of exhibit R. 2 stipulates that the alleged sub-leasee should pay 10% of the sale amount or Rs. 500/- per month whichever is more as a sales commission which is in effect the monthly rent to be paid by him though worded differently. Clause 18 of the said agreement viz. "both the parties shall make suitable arrangements to keep the shop open and business in operation from 10 a. m. to 8 p. m. on all working days except under unavoidable and unforeseen circumstances. " is a clear indication of the alleged sub-lease of the premises. Clauses 4 and 5 wherein the alleged sub-leases is enjoined to take necessary instructions from the concerned department and pay tax on the business is clear indication that he is doing business in the premises. Clause 8 of the said agreement wherein the alleged sub-lessee is stated to be solely responsible for the maintenance of stock, attending to sale and maintain accounts in respect of his goods clearly demonstrates and proves that he has been doing the business. He submitted that by a reading of the evidence of PW. 1 and RW. 2 it is clear that the landlord has proved that the original tenant has sub-leased the premises in favour of the alleged sub-lessee and therefore he is entitled for an order of eviction under Section 21 (1) (f ). ( 26 ) SRI C. B. Srinivasan Learned Counsel for the petitioners submitted that the burden of proof of sub-lease is on the landlady. According to him what is required to be proved is that the original tenant has completely parted with his possession and in his place the sub-lessee is put in possession of the property and he is in exclusive possession. If these two ingredients are not proved or established then it cannot be held that there is sub-lease. According to him what is required to be proved is that the original tenant has completely parted with his possession and in his place the sub-lessee is put in possession of the property and he is in exclusive possession. If these two ingredients are not proved or established then it cannot be held that there is sub-lease. He relied on the decision of, the Supreme Court in DEV KUMAR vs. SWARAN lata and stated that in similar situation the Supreme Court has held as follows:-"if exclusion possession of the alleged sub-tenant is established then it may not be impermissible for the Court to draw an inference that the transaction was entered into with mandatory consideration in mind". In my view the said submission has substance. ( 27 ) IN this case in order to prove sub-lease the respondent landlady has examined herself as PW. 1. The evidence in this behalf is as follows:- ( 28 ) EXHIBIT R. 2 the "selling agency contract" produced by respondent cannot be termed as creating any interest in the schedule premises in favour of the alleged sub-lessee by the original tenant nor can be termed as sub-lease of property. In this case the original tenant has not parted with the possession. He continues to do business in the name and style of "harivilas and Harivilas Agency" and in fact the sale receipts issued for the goods sold by the alleged sub-lossee also is in the name of "harivilas Agency". In otherwords the original tenant petitioner No. 1 continues to do business in the schedule premises. All that he has done is to have allowed the alleged sub-lessee/petitioner No. 2 to do business on commission basis under his control and supervision. The alleged sub-lessee has not been put in exclusive possession of the property. Under similar circumstances the Supreme Court in JAGADISH PRASAD vs. ANGOORI DEVI has held as follows:-"merely from the presence of the person other than the tenant in the shop, subletting cannot be presumed and as long as control over the premises is kept by the tenant and the business run in the premises is of the tenant, subletting flowing from the presence of the person other than the tenant in the shop cannot be assumed. It was further held that in an application for eviction of a tenant from a shop which is based on the allegations that the premises has been sublet, the allegation has to be proved. " ( 29 ) IN this case also all that can be said is that while the original tenant was doing the business in the schedule premises, without parting his possession and he also permitted the alleged sub-lessee todo business along with him. Exhibit R. 2 therefore cannot be termed as creating any interest in the schedule premises in favour of the alleged sub-lessee by the original tenant. Petitioner-1 has not parted with his possession, he continues to be in possession. The alleged sub-lessee has only been permitted to do business along with him. As the element of "exclusive possession" being parted by petitioner- 1 is lacking in this case it cannot be held that petitioner-1 has sub-leased the premises in favour of petitioner-2. ( 30 ) SRI Varadaraja lyengar learned counsel appearing for the landlady relied on the decision of the Supreme Court reported in shah PHOOLCHAND LALCHAND vs. PARVATHI BAI. In that case it was established by evidence that the original tenant 'shah phoolchand Lalchand' had ceased to carry on the business and M/ s Adeshwar Class Mart found to have carrying on the business and under the circumstances the non-production of the assessment order, account books and ledgers were relevant the Courts were entitled to draw an inference that there was sub-letting. The facts of the said case are distinguishable from the one on hand. In this case admittedly there is no parting of possession by the original tenant nor there is any evidence that the alleged sub-lessee is in possession. ( 31 ) HE nextly relied on the decision reported in M/s BENNETT COLEMAN AND COMPANY vs. PREM CHAND JAIN AND OTHERS. That was also a case where it was held on facts that exclusive possession was parted in favour of the alleged sub-tenant. Under the circumstances the Court held that nomenclature employed by the parties is not the determining factor. That was also a case where it was held on facts that exclusive possession was parted in favour of the alleged sub-tenant. Under the circumstances the Court held that nomenclature employed by the parties is not the determining factor. He then relied on a decision of the Supreme Court reported in the case of RAJBIR KAUR vs. M/ s CHOKOSIRI AND COMPANY wherein it is held as follows:- in a suit for eviction on ground of subletting if exclusive possession is established and the version of the tenant as to the particulars and the incidents of the transaction is found unacceptable in the particular facts and circumstances of the case, it may not be impermissible for the Court to do draw an inference that the transaction was entered into with monetary considerations mind. It is open to the tenant to rebut this. Such transactions of subletting in the guise of licences are in their very nature clandestine arrangements between the tenant and the sub-tenant and there cannot be direct evidence got. It is not unoften, a matter for legitimate inference. The burden of making good a case of subletting is, of course, on the landlord, the burden of establishing facts and contentions which support the part's case is on the party who takes the risk of non-persuasion. If at the conclusion of the trial a party has filed to establish these to the appropriate standard. . . . . . ". In this case also parting of exclusive possession was established. ( 32 ) HE then relied on the decision in BHAIRAB CHANDRA NANDAN vs. RANADHIR CHANDRA DUTTA. It was also a case where the alleged sub-tenant has parted with his possession in favour of his brother who was put in exclusive possession. Under the circumstances it was held that the landlord has established a case of submtting. None of the above decisions supports the case of the petitioners. ( 33 ) THE learned Trial Judge has not appreciated that unless "exclusive possession" is parted by original tenant and the alleged sublessee is put in exclusive possession creating an interest in immovable property no sub-lease can be inferred. Hence the finding that petitioner-1 has sub-leased the property in favour of petitioner- 2 is liable to be set aside. ( 33 ) THE learned Trial Judge has not appreciated that unless "exclusive possession" is parted by original tenant and the alleged sublessee is put in exclusive possession creating an interest in immovable property no sub-lease can be inferred. Hence the finding that petitioner-1 has sub-leased the property in favour of petitioner- 2 is liable to be set aside. ( 34 ) FOR the reasons stated above, the order of the Court of the Small Causes Judge Bangalore passed in HRC No. 332/86 is set aside. This revision petition is allowed. Consequently the eviction petition filed by the respondent-landlord is dismissed. In the circumstances of the case no costs. --- *** --- .