GOKAL CHAND MITAL, J. - (1.) CHETAN Dass Gupta has been occupying the residential house in dispute as a tenant at a monthly rent of Rs. 41.50 since the time of its previous owners. Originally, the house was owned by Ishwar Chand. After the death of Ishwar Chand, Narinder Nath Gupta son of Ishwar Chand filed an ejectment application against the tenant in which the tenant tendered the rent upto 31.10.1977. Vide registered sale deed dated 29.3.1978, Narinder Nath and his brother sold the entire house to Smt. Sushila Devi for Rs. 20,000/-. She thus became the landlord and filed ejectment petition on 4.10.1978 claiming ejectment of the tenant on the ground of personal necessity. The exact averments in this behalf are contained in paras 6 to 9 of the petition, which are reproduced below. "6. That the petitioners require the premises in question for her personal use and occupation as the accommodation with her in the present house where she is residing is not sufficient for her needs. 7. The petitioner is presently residing in the house which belongs to her husband and there she, her husband and her son alongwith his family members are residing. Due to shortage of accommodation the other son of the petitioner, namely, Subhash Kumar had to be sent to a house which she had taken on rent situated near Anar Dana Chowk, Patiala, where he is living with his wife and children. This house in question is also required by the petitioner for the residence of his married son Subhash Kumar. 8. That the petitioner is not occupying any other premises within the area of Municipal Committee, Patiala, in his own right nor her son is occupying any house within the area of Patiala Municipal Committee is his own right. Subhash Kumar is residing as a tenant in a house situated in Anardana Chowk, Patiala and the petitioner is residing in the house belonging to her husband. 9. That the petitioner or her son Subhash Kumar has not vacated any premises within the area of Patiala Municipal Committee after the commencement of the said Act without sufficient cause. Subhash Kumar earlier to taking on rent premises situated in Anar Dana Chowk, Patiala, was residing with his father in the house owned by the father situated in Mohalla Soot Battan, Patiala."
(2.) THE tenant contested the application and pleaded that the applicant was the daughter of Ishwar Chand, deceased landlord, and after his death, she was one of the owners along with other 7 heirs of Ishwar Chand and the sale deed, if any, was a fictitious transaction and was got executed as a device to seek his ejectment. In reply to paras 6 to 9 it was pleaded that the applicant and her husband had already in their possession separate accommodation which was more than sufficient for their living, which consisted of more than nine rooms in an area of more than 400 sq. yards. It was denied that due to shortage of accommodation Subhash Kumar son of the applicant was, living separately. On the other hand, it was pleaded that he separated from his father about 2/3 years ago and is living separately of his own accord. The Rent Controller by order dated 27.5.1980 came to the conclusion that the landlord needed the premises in dispute that the house already in occupation of the landlady, her husband and second son was not sufficient to accommodate the third son, namely, Subhash Kumar and, therefore, the house in dispute was needed for the residence of the third son and his family. The conclusion was recorded in para 14 of the judgment, as follows : "14. In view of the above discussion, I hold that the applicant requires the disputed premises for bonafide use and occupation of her son." The tenant felt aggrieved and took the matter to the Appellate Authority and the learned Appellate Authority dismissed the appeal vide order dated 19.3.1981 and upheld the order of eviction. The tenant has come to this Court in this revision petition under Section 15(5) of the East Punjab Urban Rent Restriction Act, 1959 (hereinafter referred to as 'the Act'). The admitted facts of the case are that Subhash Kumar, third son of the landlady, is living in the same urban area along with his wife and children in a rented house. Section 13(3)(a)(iv) of the Act does provide that the order of eviction can be obtained for the residence of her son, who is married, but it is subject to two conditions which have been mentioned in clauses (a) and (b) which provide that he should not be occupying in the urban area concerned any other building for residence, and the son should not have vacated such a building without sufficient cause after the commencement of the Act in the urban area concerned. In the ejectment petition, it was not pleaded that the rented house in occupation of the son was not sufficient for his residence. Therefore, if the son was occupying another residential premises in the urban area concerned, another house could not be got vacated for his residence. The aforesaid position of law will have to be kept in view while deciding this case. It is important to notice here that the Courts below did not advert to the aforesaid two matters while deciding this case. Therefore, it will be open to this Court even the revisional jurisdiction to see to the legality and propriety of the order passed by the Court below.
(3.) ACCORDING to the legal position enunciated above, a landlord will have to plead that his married son is not occupying any residential premises in the urban area concerned besides pleading the other matters before an order of ejectment can be obtained. In the present case, this was not so done. On the other hand, it was admitted that he was living in a rented house. If the accommodation with her son was not sufficient, yet it was open to the landlady to plead that the accommodation with her son was sufficient for his residence and he would not be covered by exception (a) because what is meant by exception (a) is that there must be a reasonable accommodation in occupation of the married son. In this behalf, there is no plea on the record muchless the proof. The relevant part in the examination-in-chief of Subhash Kumar, who appeared as A.W.4, is as follows : "I left my residence with my father due to shortage of accommodation in that house. The house in dispute is sustained at a distance of 100/150 yards from the house of my father and is about 4 furlongs from the house on rent with me. There is no accommodation for my brother and sister to visit their families to my father's house. There is no accommodation for me in the house of my father." ;