KEDAR NATH BHATNAGAR Vs. SHRI DHARAM PAUL

JUDGEMENT

(1.) Dharam Paul, landlord-respondent, filed an eviction application that the petitioner had not paid the arrears of rent, that the premises in dispute had been sublet to Smt. Nirmal Devi and that the same were required bonafide by him for his personal necessity. The petitioner paid the arrears of rent on the first hearing and therefore, this grounds did not survive. On the other two grounds, the Rent Controller held that the tenant-petitioner had sublet the premises in favour of Smt. Nirmal Devi and that the landlord-respondent required the premised for his personal use and occupation. Consequently, an order of eviction was passed. In appeal, it was held by the Appellate Authority that Nirmal Devi was the notice of the said tenant petitioner who had been deserted by her husband and was living with him since long and as such her status was that of a licensee and not of a sub lessee. However, the finding of the Rent Controller on the other ground was upheld and it was concluded that the landlord-respondent required the premises for his own use and occupation this order of the Appellate Authority has been challenged in this revision.

(2.) It has been contended by the learned counsel for the petitioner that the respondent had filed, earlier to the present eviction application, an ejectment petition against Brahma Nand, tenant, on the ground of personal necessity and the eviction order had been passed.

(3.) Therefore, under second proviso to section 13(3)(a)(iv) of the East Punjab Urban Rent Restriction Act, 1949, (hereinafter to be called the Act) the present eviction application was not maintainable. In support of this ground, support was sought to be derived from the statement of the respondent as his own witness in which he stated that he got the property vacated from some other tenant on the ground of necessity. The learned counsel for the respondent has brought to my notice a certified copy of the judgment dated Ist April, 1967, by the Appellate Authority, Jullundhar against the order of the Rent Controller ejecting the tenant, Brahma Nand. A perusal of this judgment shows that the contention of this landlord-respondent regarding the personal necessity of the premises in the application has not been sustained by the Rent Controller, and the said finding was not disturbed by the Appellate Authority. In fact, the eviction order had been passed on the ground that the tenant had not paid arrears of rent on the first hearing and this finding was upheld by the Appellate Authority. Besides it has been vehement contention to this effect was not raised by the petitioner in his written statement. It is not disputed that this contention had not been made in the written statement specifically. In view of these circumstances, there is no substance in this contention. Secondly, it had been contended that the premises in dispute though described as H. No. 18/1, is part of House No. 18 in Mohalla No. 14, Jullundur Cantt, and these very premises had been got vacated by the respondent from Brahma Nand tenant and therefore he had leased out the same to the petitioner. So far as the identity of the property is concerned, the reliance of learned counsel for the petitioner on the statement of the landlord in this eviction application appears to be mis-conceived. As close perusal of the statement shows that the property described as H. No. 18, on the ground-floor was got vacated and a part of it was leased out to Bishamber Dass and Hira Lal and the remaining -part was leased out to Ghora Gari Bidi, i.e. sellers and distributors of Bidi bearing the trade name as Ghora Gari. In the eviction application, the premises in dispute have been described as H. No. 18 known as H. No. 18/1. From the averments made in the petition and the evidence on the record, it appears that the premises in dispute, which are the upper storey, are different from the property which was got vacated from Barhma Nand.