Jagjit Lal alias Jagjit Raj vs Shri Gurjinder Singh Arora and another

R.S. Narula, C.J.—An order for the eviction of the petitioner u/s 13(3)(a)(i) of the East Punjab Urban Rent Restriction Act (3 of 1979) (hereinafter called the Act) has been passed by the Court of Shri Sukhdev Singh Rent Controller, Amritsar, and upheld by the order of Shri H.S. Bakhshi, Appellate Authority under the Act, dated November 29, 1976. The tenant has come up in revision for setting aside the said order. It is the common case of both sides that the tenant-petitioner (hereinafter referred to as the tenant) was inducted into the premises On February 15, 1968, as a tenant at Rs. 125/- per menses excluding the electricity and water charges. Eviction was claimed in the petition filed by the respondents on December, 22, 1973, on various grounds out of which the only one which is now relevant for consideration is that the respondents required the premises for their own occupation The Rent Controller as well as the Appellate Authority have come to a definite finding of fact that the requirement of the landlord is bona fide. The finding is that the premises are required By respondent No. 1 who is the son of respondent No. 2.

Mr. G.R. Majithia, Learned Counsel for the tenant, has argued that no distinction has been drawn between respondent No. 1 and respondent No. 2 in their capacity as petitioners for eviction u/s 13, and that in as much as the requirement proved is of the son and not the father, eviction could be ordered in this case only under sub-clause (iv) of clause (a) of sub-section (3) of section 13 of the Act. The circumstances in which a landlord can claim eviction under that clause are stated in the Act in the following words:-

(3)(a) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession-

(i) to (iii)

(iv) in the case of any residential building, if he requires it for use as an office, or consulting room by his son who intends to start practice as a lawyer or as a ''registered practitioner'' within the meaning of that expression as used in the Punjab Medical Registration Act, 1916, or for the residence of the son who is married, if-

(a) his son as aforesaid is not occupying in the urban area Concerned any other building for use as office consulting loom or residence, as the case may be: and

(b) his son as aforesaid has not vacated such a building without sufficient cause after the commencement of this Act, in the urban area concerned;

(The three provisos to the clause are not relevant in this case).

Assuming that the eviction has been claimed and ordered under the above-quoted clause, counsel has submitted that the respondents have no cause of action for claiming eviction under this particular clause as respondent No. 1 (the son) was not married at the litre of the Sling of the petition. I am unable to find any force in the submission of Mr. Majithia for more than one reason. Firstly, it appears that though respondent No. 1 was not married at the time of the filing of the original petition, be had been married before the amended petition, dated May 3, 1974, was filed before the Rent Controller, and that a specific amendment pleading the factum of marriage had been made in paragraph 2 of the petition, wherein the date of the marriage is also mentioned. The tenant has denied that averment in his reply to the amended petition. The two Courts below have found against the tenant on that count. That finding has not been questioned before me The relevant date on which all the conditions precedent for obtaining an order for eviction against a tenant under any of the clauses of section 13 of the Act should be fulfilled is the date on which the order for eviction has to be passed and not the date of making the application. This is so because of the phraseology used in the opening part of sub-section (2) read with sub-section (1) of section 13. Sub-section (1) states that a tenant in possession shall not be evicted in execution of a decree or otherwise except in accordance with the provisions of the Act. Sub-section (2) provides that "a landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf." It further states that if the Controller, after giving the tenant a reasonable opportunity of showing cause against the applicant, is satisfies that the requirements of any of the clauses mentioned in that sub-section are fulfilled, the Controller may make an order directing the tenant to put the landlord in possession Similarly clause (a) of sub-section (3) states that a landlord may apply to the Controller for an order directing the tenant to put the landlord in possession, and if the Rent Controller is satisfied that the claim of the landlord is bona fide and fulfils all the requirements of any of the alternative clauses under which eviction can be sought, make an order directing the tenant to put the landlord in possession. The satisfaction of the Rent Controller about the proof of the conditions precedent for making an order for eviction must, therefore, relate to the time when he passes an order for eviction.

Secondly, the facts of the case leave no doubt that eviction in the present case has not been allowed under sub-clause (iv) of section 13(3)(a) but under sub-clause (iii) wherein all that a landlord has to prove to obtain an order directing the eviction of the tenant is that:-

(a) he requires it for his own occupation;

(b) he is not occupying another residential building in the urban area concerned ; and

(c) he has not vacated such a building in the said urban area without sufficient cause after the commencement of the Act.

No question of marriage of any one arises under sub-clause (iii). I, therefore, find no force in the first contention of Mr. Majithia.

The second submission made by the Learned Counsel is that the application for eviction filed by the respondents does not disclose the relationship between the two respondents and the application must, therefore, be dismissed on the short ground that it does not show that it has been filed by the landlord inasmuch as the whole of the application when read does not make it clear as to who is the landlord This argument must also be repelled on the short ground that the petition read with the written statement of the tenant himself makes it abundant clear that the tenant was inducted in the premises by respondent No. 1 That is also clear from the statement of the tenant himself (made by him in the course of his examination as his own witness) to the effect that be executed a rent note in favour of respondent No. 1 at the time of the inception of the tenancy. In paragraph 1 of the petition it is clearly stated that the petitioner was inducted as a tenant with effect from February 14, 1968, "by applicant No. 1". Whoever may be the owner of the premises, no doubt at all is left from the reading of the pleadings of the parties that the landlord of the petitioner is respondent No. 1. The reason why the father of the landlord, that is respondent No. 2, had also to be impleaded as a party to the case by respondents is clearly set out in paragraph 3 of the petition. The averment in that paragraph is that when a notice of eviction was served by respondent No. 1 on the tenant, the latter stated in reply that the premises in dispute were taken by him on rent from respondent No 2, and, therefore, in order to avoid any unnecessary controversy both the respondents served a fresh notice on the petitioner and both of them subsequently joined in filing the application for eviction.

The third submission of Mr. Majithia is that the finding of the Courts below about the requirement of the respondents being bona-fide cannot be upheld in the light of the fact that several premises had been vacated by some other tenants during the pendency of this litigation, and the respondents could make use of those premises. It is not disputed that such a plea was raised before the Appellate Authority on account of which the case was remanded whereupon the report, of the Rent Controller was against the tenant, and that the objections against that report not having succeeded, a finding of fact against the tenant has been recorded by the Appellate Authority on this point. That being so, I am unable to reappraise the evidence on the point in these revisional proceedings particularly when I do not find anything improper or illegal in the process by which the Appellate Authority has arrived at the finding.

On the merits of the controversy, Learned Counsel for the tenant has invited my attention to the judgment of the Supreme Court in Mattulal Vs. Radhe Lal, wherein it has been held that the High Court can certainly examine the correctness of a finding recorded by the lower appellate Court on the question of bona fide requirement. That judgment in fact goes against the petitioner. It has been held there that the High Court in exercise of its second appellate jurisdiction can interfere with a finding of fact on the point in question on the limited ground that the decision is contrary to law or that it is based on no evidence at all or that the same was arbitrary, unreasonable or perverse. In the same judgment their Lordships have held that the question whether a particular party requires certain premises for a particular purpose or not, and if so whether his requirement was bona fide or not are questions of fact and the findings or the Appellate Authority on those issues (though on doubt inferred from other basic facts) remain findings of fact, and the High Court cannot interfere with the same unless it is shown that in reaching those findings a mistake of law has been committed, or that the findings are based on no evidence at all, or are such as no reasonable man can reach. This cannot be said about the findings recorded by the Courts below regarding the requirement of the respondents. It has been found as a fact that the respondents are nine members of family (including the father of respondent No. 1, his mother, a deserted sister, a brother and his wife, another, brother etc. besides the wife of respondent No. 1 himself). It has also been proved that they are in possession of only about four rooms in all in the premises at Lawrence Road, and that they are ''cramped up there and have no additional accommodation. It cannot be said that the findings of the trial Court are based on the mere statements of the respondents. All that is required is an objective decision on the question of bona fide requirement on the basis of evidence and facts and not merely respecting the subjective decision of the landlord. The Courts below have arrived at the finding in question on proper objective basis, and have not relied merely on the, ipse dixit of the landlord.

The last submission of Mr. Majithia is that in view of the Full Bench judgment of this Court in Shri Banke Ram v. Shrimati Sarasti Devi (1977) 79 P.L.R. 112, Civil Revision 302 of 1974, decided on December 17, 1976, it is necessary for the respondents to plead and prove all the ingredients of sub-clause (i) of clause (a) of sub-section (3) of section 13 of the Act, and that inasmuch as the requirement of item (b) is not satisfied the application filed by the respondents for the eviction of the petitioner must be dismissed. The requirement of item (b) read with the Full Bench judgment of this Court in Strike Ram''s case is that a landlord who wishes to evict a tenant from residential premises as the same are required for his own occupation must plead and prove that "he is not occupying another residential building in the urban area concerned." the requirement of this clause is stated by the respondents to have been satisfied by their pleading in paragraph (ii) of their amended petition as below:-

Application No. J is having no house in his own name within the municipal limits of the city nor the applicant has vacated anyone.....

The requirement of the statute which has already been reproduced above is that the landlord must allege and prove that he is not occupying another residential building in the urban area concerned. The use of the word "house" in the pleadings is in my opinion equivalent to "residential building", I also agree with Mr. Sarwan Singh that when it is stated by his client (respondent No. 1) that he is "having" no house in the municipal limits, he can safely be held to imply having pleaded that be is not occupying and house in the municipal limits, etc. The real difficulty in the way of the respondents, however, is that they have somehow introduced a qualification while taking up this plea by confining the non occupation of a house within the municipal limits of the city to only such a house which respondent No. 1 may be having "in his own name," This amounts to specifically excluding from the operation of the averment any house which respondent No. 1 may be having in his occupation in the municipal limits of Amritsar in any name other than his own. Mr. Sarwan Singh, has argued that in order to serve as an impediment in the way of a landlord to obtain eviction under this clause, the other accommodation must be in the occupation of the landlord in his own right and not at a mere sufferance of someone. In support of this preposition he has cited the judgment of P.C Pandit, J. (as he then was) in Hari Krishan Degra v. Arjan Singh. (1973) 75 P.L.R. 658. The law laid down in that judgment is of no avail to the respondents. All that has been said in that case on the relevant point is that the phrase "occupation of another residential building" occurring in section 13(3)(a)(i)(b) of the Act means that the landlord must be then in his own right. There is no dispute in the present case whether the accommodation with the respondents is with them in, their own tight or not, but the question is to which accommodation does the averment relate. The distinction between real ownership and ostensible ownership in law is well known. Ostensible owner of property of which the real owner is someone else is neither the owner of the property nor may indeed be in occupation thereof. The real owner who may not have the property is his own name is in such cases the owner of the property and is expected to be in occupation thereof notwithstanding that he does not have the property in his own name. IN these circumstances the respondents appear to have restricted the operation of the requisite averment by qualifying it with the words "in his own name", and to that extent they have not satisfied the requirement of item (b) of section 13(3)(a)(i). I might have ignored even this lapse by holding that the benefit of doubt in connection with the interpretation of this averment should be given to the landlord, if the respondents, had proved the requirement of this ingredient What is required according to the Full Bench is that all the ingredients of the provision should be pleaded and also proved. It is admitted by the counsel for the respondents that respondent No. 1 has not at all stated in the course of his evidence before the Rent Controller that he was not In occupation of any other premises within the municipal area of Amritsar. Mr. Sarwan Singh has tried to argue that the Full Bench merely requires the plea and not the proof. This is meaningless is an order can be passed only on the basis of proof and not a mere plea even in a case in which there is no contest and the matter has to proceed ex-parte. Whenever the law requires that an order should be passed only if certain conditions are satisfied, it cannot be said that sere pleading of those conditions satisfies the requirement of such law since admittedly there Is no proof of fulfillment of this mandatory requirement of the statute without which fulfillment no order for evictor can be passed, I am left with no alternative but to allow this petition and to set aside the order for eviction. At the same time it does not appear appropriate to dismiss the petition of the respondents after it has been pending for such a long time at various stages and hen definite findings of fact have been recorded on all the other requirements of the section which findings have been upheld right up High Court.

In these circumstances while setting aside the order of the were appellate Court for the eviction of the tenant (without upsetting we findings of fact recorded by the lower appellate Court) I remand the se to the Court of the Rent Controller, Amritsar, as Mr. Sarwan (sic) seeks oral leave of this Court to amend the petition so as to make therein (in paragraph 2(ii) of the petition) specific averment in terms the requirement of item (b) of section 13(3)(a)(i) of the Act. I (sic) the oral prayer of the respondents and permit the petition for eviction being amended to that extent. The amended petition may be (sic) before the Rent Controller, Amritsar, within two weeks from lay A copy of the same would be served on the tenant who would entitled to file a reply to the amended petition restricted to the amendment low made. If the averment introduced is to the petition eviction by amendment is denied by the tenant, a specific issue in it behalf may be framed by the Rent Controller and decided after following both sides an opportunity to prove or rebut the same The ties have been directed to appear before the Rent Controller on January 7, 1977. The parties are left to bear their own costs of this petition.