Shri Sewa Ram Sethi and another vs Des Raj

J.V. Gupta, J.—This is landlords petition in whose favour eviction order was passed by the Rent Controller but was set aside in appeal.

The landlords Sewa Ram and Baldev Raj (both brothers) sought ejectment of their tenant Des Raj from the premises in dispute i.e. the residential building situated in Jullundur which was on monthly rent of Rs. 40/- with him. The ejectment was sought primarily on the ground that Sewa Ram landlord required the premises in dispute for the use of his married son B. M. Sethi, who was previously employed in Central Bank of India, Chandigarh and was now transferred to Jullundur on 25-8-1980. It was further pleaded that B. M. Sethi does not own any other residential building in the urban area concerned and has not vacated any such property at Jullundur after the commencement of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as ''the Act''). In the written statement, the tenant asserted that there was no relationship of landlord and tenant between him and Sewa Ram. He also controverter the allegations of landlords and pleaded that B.M. Sethi does not require the premises for his own use and occupation. The learned Rent Controller found that both the Petitioners are the landlords whereas Des Raj is the tenant under them. It was further found that B.M. Sethi is the son of Sewa Rain landlord and he requires the premises in dispute bonafide for his married son as provided u/s 13(3) (iv) of the Act. Consequently, eviction order was passed vide order dated 18-8-1982. In appeal, the learned appellate authority reversed the said finding of the learned Rent Controller relying on the judgment of this Court in Kasturi Lal Sharma v. Kartar Singh 1984 (1) R.C.R. 211. According to the lower appellate authority since B.M. Sethi is living separately for 12/13 years prior to the filing of present ejectment application and is not dependent on Sewa Ram landlord, the landlord was not entitled to seek ejectment of his tenant on that ground i.e. for the residence of his married son. In view of that finding, eviction order was set aside. Dissatisfied with the same, the landlords have filed this petition in this Court.

During the pendency of this petition, the tenant Des Raj moved C.M. No. 1057-01/86 in order to bring subsequent facts on record for consideration at the time of final hearing. It was stated therein that during the pendency of this petition, said B.M. Sethi for whom the premises were sought to be vacated was transferred from Jullundur to Ludhiana and therefore, the ground on which the ejectment application was filed, was no more in existence. Reply to the said application was filed on behalf of the landlords by way of affidavit of B. M. Sethi. He admitted that he had been transferred from Jullundur to Ludhiana but at the same time he had categorically stated in para 6 thereof that he has not shifted his residence from Jullundur to Ludhiana nor he has any intention to shift the same. He also filed the certificate from the School to show that his children are still studying at Jullundur. According to his affidavit he is a daily passenger from Jullundur to Ludhiana. It has been further stated therein that during the pendency of this petition, the landlord Sewa Ram has himself also retired and therefore wants to shift to his own house i.e. the premises in dispute and stay with his son and grand children.

Learned Counsel for the Petitioner submitted that the approach of the lower appellate authority was wholly wrong, illegal and misconceived and the judgment relied on in Kasturi Lal''s case (supra) was clearly distinguishable and has no applicability to the facts of the present case. It was further contended that u/s 13 of the Act, the ejectment could be sought by the landlord if he wanted to occupy his own premises as provided u/s 13(3)(a) whereas the landlord is also entitled to get the building vacated for the residence of his married son u/s 13(3) (iv). Thus argued the learned Counsel, both the grounds are independent and are available separately to the landlord to seek ejectment of his tenant. In support of his contention, he referred to Shri Nand Kishore v. Shri Jagdish Chander Jain (1985) 87 P.L.R. 215.

On the other hand, learned Counsel for the tenant submitted that Sewa Ram landlord admitted that his son B.M. Sethi was not dependent on him and that being so, he could not seek the ejectment of his tenant for his married son. He also relied on the observations made in Kasturi Lal Sharma v. Kartar Singh 1984 (1) R.C.R. 211. He also contended that since B.M. Sethi has been transferred from Jullundur to Ludhiana and therefore the requirement for his residence was no more available and on that ground alone, the petition should be dismissed.

I have heard the learned Counsel for the parties and have also gone through the relevant evidence and the averments made in the civil miscellaneous application filed in this Court and the reply filed thereto. The main argument raised on behalf of the tenant is based on the judgment of this Court in Kasturi Lal Sharma''s case (supra). Admittedly that was a case where the landlord had sought ejectment of his tenant on the ground that he personally wanted to occupy the premises for his own use and occupation as provided u/s 13(3)(a) of the Act and not u/s 13(3) (iv) which is an independent ground where the landlord could seek ejectment of his tenant for the residence of his married son. What was being considered in that case was primarily the words "is in occupation" which include only dependent members of the landlord who are ordinarily residing with him. While discussing that it was observed that "the only exception to this provision is the one contained in Clause (iv) of Sub-section (3) which authorises the landlord to get the tenant ejected if he requires any residential building for use as an office or consulting room by his son who intends to start practice as a lawyer or as a registered medical practitioner or for the residence of his son who is married provided his son has no accommodation in the urban area concerned nor has vacated any other building without sufficient cause." From the observations made, it is clear that the case of the landlord that he required the demised premises for his married son was never set up. Not only that it has been further observed therein that "the plea of the need of the married son and his family was, therefore, neither set up nor substantiated from the facts proved on the record." The observations relied on by the appellate authority to the effect that "however, on the facts of the present case it was not possible to set up the need of Ajit Singh under Clause (iv) because the landlord would not be entitled to seek ejectment of the tenant for the need of married son only if he has been residing with him and the accommodation is needed for his residence soon after his marriage. The provision contained in this clause cannot be interpreted so as to entitle the landlord to claim ejectment of the tenant for tin residence of his married son who is not dependent upon him and is residing separately for a number of years" are in the nature of obiter dicta made in view of the peculiar facts of the case because admittedly in the said case ejectment was never sought by the landlord udder Section 13(3) (iv). Thus the finding of the Rent Controller in this behalf was wholly correct and the same has been set aside by the appellate authority on wrong assumption of law.

As regards the subsequent event suffice it to say that in the reply filed on behalf of the landlord it has been categorically stated that B.M. Sethi is still residing at Jullundur and is a daily passenger from Jullundur to Ludhiana. That being so, the requirement of premises in dispute is still there. Since the landlord is entitled to seek ejectment for the residence of his married son the question of occupying the premises by the landlord himself after retirement as brought in the reply in this Court need not be gone into.

In view of the above discussion the petition succeeds and impugned order of the appellate authority is set aside and that of the Rent Controller directing ejectment of the tenant Des Raj is restored. with costs. However, the tenant is allowed three months time to vacate the premises provided he pays the arrears of rent if any, and deposits the same with the Rent Controller within one month from today, with further undertaking in writing that the vacant possession will be handed over to the landlord and that rent for the said period of three months will be paid in advance by the 10th of every month.