Kewal Krishan vs Smt. Janki Devi

J.V. Gupta, J.—The tenant-petitioner has filed this present petition against the order of the Appellate Authority Ambala, dated 15th May, 1980, whereby order of the Rent Controller, Jagadhri, dated 28th September, 1979, was maintained.

The premises in dispute consists of a part of House No. 1058, situated in old Subzimandi Road, near Chuna Bhatti, Yamunanagar the ejectment was sought on the ground that the landlady bona fide requires the premises for her own use and occupation. It was stated in the ejectment application that she has no other house of her own within the municipal limits of Yamunanagar and that she had not vacated any house after the enactment of the East Punjab Urban Rent Restriction Act, 1949, (hereinafter called the Act). In the written statement of the tenant petitioner it was pleaded that the landlady is living with her husband in a house which is owned and possessed by him. It was further stated that actually the landlady wanted to dispose of the premises in dispute after getting it vacated on such false pleas so that she might get a handsome price. In the replication filed on behalf of the landlady these allegations made in the written statement were denied and nothing waS stated as to whether she was living with her husband in a house which was owned and possessed by him. On the pleadings of the parties, the Rent Controller framed the following issues :--

(1) Whether the house in dispute is required by the applicant for her personal use and requirement?

(2) Relief.

The Rent Controller after going through the evidence on the record, came to the conclusion that the landlady bona fide required the premises for her ova use and occupation and she was not occupying any other building in the urban area concerned in her own right. Consequently, order of ejectment was passed against the tenant-petitioner. In appeal this finding of the Rent Controller was upheld. However, it has also been observed by the Appellate Authority that :--

In the present case, it is admitted that the landlord Janki Devi and her husband had several houses. They are, therefore, sufficiently rich persons. In those circumstances, a desire on the part of the landlord to live separately was indeed bona fide as was held by the learned Rent Controller.

Feeling aggrieved against this, the tenant has come up in revision is Court.

The Learned Counsel for the petitioner vehemently contented that (sic) never pleaded in her application that she was not occupy (sic) other residential building in the urban area concerned which is one of the necessary ingredients u/s 3(3) (a) (i) (e) of the Act. Secondly, it was contended that the best evidence as to prove the bona fide requirement was withheld as no member of the family of the landlady or her husband or any of his sons came forward to support her claim. According to the Learned Counsel, even the site plan of the house which is in occupation of the landlady where she is residing with her husband, has not been filed to prove that the accommodation in her occupation was insufficient as to seek the ejectment of her tenant In support of these contention she has referred to Ramesh Kumar v. Raj Paul 1980 (2) R.L.R. 377 Yog Raj v. The State of Haryana (1970) 75 P.L.R. 350 and Tarlok Chand v. Guran Ditti alias Tara Wati and others 1981 (1) R.L.R. 216.

On the other hand, Learned Counsel for the respondent landlady submits that the residential building which is in occupation of the land lady does not belong to her and she is living with her husband and children not in her own right and, therefore, it was not necessary for her to plead the same in her ejectment application. In any case, according to the Learned Counsel, there is evidence on the record to prove that the accommodation in her occupation is in sufficient and it has been found as a matter of fact by both the authorities below and the same should not be interfered with in the exercise of the revisional jurisdiction. In support of his contentions he has referred to Naranjan Dass Sood v. Smt. Vidya Wati 1979 (1) R.C.R. 543, Bundoo v. Akbar Ali 1973 (1) R.C.R. 543, Phool Chand v. Hira Lal 1963 R.C.J. 23 S.N. Rana Gokaldas Zinabhai v. Dadnra Thakorlal Chunill (deceased) through his heirs and others 1975 R.C.J. 53 S.N. and Saahu Ram v. Shakumla Devi 1979 (1) R.C.R. 312.

I have heard the Learned Counsel for the parties at length and have also gone through the pleadings of the parties and the evidence on the record. Admittedly, in the application nowhere it has been stated that she is not occupying any other residential building in the urban area concerned. Even in the replication filed it was never stated by her though it was specifically pleading in the written statement that the landlady is living with her husband in a house which is owned and possessed by him. In these circumstances one of the necessary ingredients of section 13(3) (a) (i) (b) of the Act has not been pleaded and it is settled law that these ingredients are to be pleaded before an order of ejectment can be obtained by the landlord. The argument that there is evidence on the record as to the insufficiency of the accommodation in occupation of the landlady and has teen believed by the authorities below is not available in the present case particularly when the best evidence which was available was not produced. As stated earlier neither the husband of the landlady nor any of his family members came forward to prove her bona fide requirement. Reference in this connection may be made to Ramesh Kumar'' case (supra). Similarly, even the site plan of the house belonging to her husband where the landlady is living for the time being has also not been produced on the record. It has been held in Yog Raj''s case (supra) that when no plan of the house in occupation of the landlord is put on the record to indicate as the whether the premises in the possession of the landlord are not sufficient for requirement of his family, it is not possible to give any clear finding that the landlord requires the premises for his own personal use. Unless there is clear evidence on the record as to the possession of the landlord, it cannot be said that the existing premises are not reasonably sufficient for his need. Apart from that, it was never pleaded in the ejectment application that the accommodation in her possession was insufficient and in the absence of any such pleadings, ejectment cannot be ordered on the ground of insufficiency of accommodation. Reference in this respect may be made to Tarlok Chand''s case (supra).

The authorities cited on behalf of the respondent are no longer good law in view of the Division Bench judgment of this Court reported in Karnail Singh v. Vidva Devi wife of Gaggan Ram 1980 (2) R.L.R. 25. Earlier in some of the cases this Court has taken the view that the landlord must be in occupation in his own right as an owner and in case he was in occupation of the premises as tenant that, was not hit by section 13(3) (a) (i) (b) of the Act. In Karnail Singh''s case (supra) it has been held that if the landlord is in possession of any other residential building in the same urban area, whether as owner, landlord, tenant, mortgagee with possession or in any other recognised mode, having right in property, he would not be able to claim eviction of his tenant from other premises in the same urban area without the aid and proving some thing more. It cannot be disputed that the occupation of the landlady in the house of her husband is as a matter of right unless there are circumstances to show otherwise.

The Appellate Authority also seems to have fallen in error that it is the desire of the landlord and not his actual bona fide requirement that is decisive of the matter. That is why the observation reproduced above has been made by it in its judgment. It is well settled by now that it is not the mere desire of the landlord but he must prove his bona fide requirement to the satisfaction of the Rent Controller. In this view of the matter the whole approach of the authorities below is illegal and improper and the order of ejectment passed, is liable to be set aside. It was obligatory on the landlord to plead in her application for ejectment that the premises in her occupation were insufficient for her accommodation. In the absence of such a plea and there being no reliable evidence on the record for her bona fide requirement, no order of ejectment could be passed against her tenant.

Before parting with the judgment it may be made clear that the view reported in Karnail Singh''s case (supra) has been taken by this Court during the pendency of this case. The landlady will be at liberty to make another proper application for ejectment, if so advised, where in she may be able to prove her bona fide requirement, if any. Even the tenant has also made an application in this Court Civil Misc. No. 2135-C-II of 1980, wherein a prayer has been made for permission to amend his written statement filed by him before the Rent Controller. Thus under these circumstances he will also be entitled to take any plea available to him at that time though not taken earlier in the present ejectment application.

For the reasons recorded above, this petition succeeds and the order of the authorities below is set aside and the application for ejectment is dismissed with costs.