C COLACO Vs. URBAN DSILVA

JUDGEMENT

(1.) The petitioner before this Court is the landlord. Petitiener filed a petition under S.21(1) (b), (c) and (d) of the Mysore Rent Control Act of 1861 (hereinafter referred to as the Act) against the respondent- tenant and prayed that, because the tenant had contravened said provisions, the tenant is liable to be evicted from the said premisses. The trial Court held that the petitioner has made out-the contravention of the provisions of sub-clauses (b) and (d) of Sec.21(1) of the Act and passed an order of eviction. The appeal filed by the tenant was allowed by the learned District Judge of South Kanara. The learned District Judge held that the petitioner has not made out the contravention of provisions of sub-clauses (b) and (d) of S. 21(1) and allowed the appeal. In this revision petition, the petitioner challenges the said order passed by the learned District Judge.

(2.) Shri. Ganapathy Bhat, learned Counsel appearing on behalf of the petitioner has contended that the learned District Judge has not considered the evidence of all the witnesses examined on behalf of the petitioner. It is also stressed that the learned District Judge had not adverted to the admissions made by the respondent and his witnesses. If the evidence of the, petitioner's witnesses and the admissions made by the respondent aw taken into consideration, he submits, there cannot be any doubt that the respondent was carrying on tailoring business in the premises let out to him for residential purposes. He argues that the petitioner has clearly made out contravention of Clause (o) of S. 108 of the Transfer of Property Act and undoubtedly the premises have been used for a purpose othter than that for which It was leased. It is also contended, if tailoring work is carried on in a residential premises late in the night, it will cause nuisance to the neighbours and the petitioner hail also made out a case under S.21(1) (d) of the Act. Shri Ganapathy Bhat has relied on Bhogilal v. Subramania, (1953) 2 Mad.L.J. 625. Abdul Khader v. Rao, (1964) 2 Mad.L.J. 288. Jugraj Jain v. Ambikapathi, (1959) 2 Mad.L.J. 240. and Kesavan v. State, AIR. 1952 TC. 290. in support of his contentions. Shri Balakrishna Rao, learned Counsel appearing on behalf of the respondent has supported the order passed by the learned District Judge. He has stressed the fact that in the quit notice (Ex. A. 1) given by the petitioner dated 25th April, 1966, the petitioner has nowhere referred to the respondent carrying on tailoring business in the said premises nor had the petitioner referred to the nuisance caused by the respondent when carrying on the tailoring business in his residential premises. This is an important circumstance to be borne in mind in judging evidence let in by. the petitioner and the lower appellate court has considered this important factor when deciding the points at issue. It is also argued by the learned Counsel for the respondent that if in a premises let out to the respondent for residence, a portion of that premises is used for carrying on business, it will not violate the provisions of clause (o) of S. 108 of the Transfer of Property Act. The learned District Judge has accepted the version of the respondent that the respondent had also been carrying on the work of a tailor in his residence for a number of years. The learned counsel has strongly relied on Krishnan Nair v. Valliammal, (1949) 1 Mad.L.J. 75. Jugraj Jain v. Ambikapathi, and Vickey v. Martin, (1944) 2 All.E.R. 167. in support of his said contention. It is also contended that quit notice should have been issued to the respondent bringing to his knowledge the alleged breach, as the case of the petitioner was that there was a breach of contract under S.108 Sub-clause (o) of the Transfer of Property Act. It is argued that it is obligatory to bring to the knowledge of the other party the breach committed before the petitioner-landlord claims reentry. It is contended that the lower appellate Court has considered all the material evidence in the, case. The lower appellate court did not consider P.W. 5's evidence as it was not material. This non-consideration of P.W. 5's evidence does not in any way cause injustice to the parties. It is also argued that it is open to this court under S. 50 of the Act to go into the entire evidence and arrive at its own conclusion. In support of this proposition reliance is placed on Central Tobacco Co. v. Chandra Prakash, (1969) 1 SCWR. 1142. It is urged that the conclusions arrived at by the appellate court are correct, and no case is made out calling for interference in revision with orders passed by the learned District Judge.

(3.) The important question for consideration in this case is, if in a premises leased out for residential purposes to a professional man, the said person carries on some professional work in his residence, whether he will be violating sub-clause (o) of S, 108. In Jugraj Jain v. Amblkapathi, this question has been considered by the Madras High Court. It has been laid down in the said decision as follows: -