CR No.4254 of 2007 -1- ***** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.4254 of 2007 Date of decision:28.04.2011. Smt. Lajwanti ...Petitioner Versus Avtar Singh ...Respondent CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Ms. Reeta Kohli, Advocate, for the petitioner. Mr. Jai Deep Verma, Advocate, for the respondent. ***** Rakesh Kumar Jain, J. The landlady is in revision against the orders of the Courts below by which her application for ejectment of the tenant has been dismissed. In short, the landlady filed the eviction petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 [for short “the Act”] against the tenant in respect of a shop [hereinafter referred to as the “demised premises”] which was allegedly let out @ `300/- per month to the tenant. The eviction was sought, inter alia, on the grounds of non-payment of rent w.e.f. 01.10.1993 and that the shop in question is required by her personal use and occupation in which the landlady wanted to open a Dhaba/Tea-stall for her son Om Parkash who has not been doing anything. In reply, the tenant alleged that the landlady has not come to the Court with clean hands as her son Om Parkash is running his business in the property situated within the municipal limits of Kurali where she owns other shop also and has, thus, made up a concocted story that her son wants to run a Dhaba in the demised premises. After the pleadings were over, the issues were framed by the learned Rent Controller. The parties CR No.4254 of 2007 -2- ***** led their oral as well as documentary evidence. The learned Rent Controller dismissed the eviction petition on 21.02.2006 which was upheld in appeal by the Appellate Authority on 23.04.2007. Learned counsel for the petitioner has submitted that the Courts below have only dealt with the ground of personal necessity and rejected it against the landlady on the ground that Om Parkash (AW2) had alleged that he has got some land and is doing agriculture and as such, personal necessity of the landlady to settle her son Om Parkash is not bona fide. The Courts below have also observed that the landlady has possessed a Flour Mill (Atta Chakki) and since this fact was suppressed, therefore, the eviction petition was dismissed. It is argued by learned counsel for the petitioner that there is a total misreading of evidence available on record as the Appellate Authority has observed that Om Parkash was unmarried, whereas Om Parkash is married and even if he has been pursuing agriculture, there is no bar that he cannot start the business of Dhaba in the demised premises. The landlady had appeared as AW1 and categorically stated that her son Raj Kumar is running the Atta Chakki after the death of her husband, meaning thereby that her son Om Parkash is not engaged in the business of Atta Chakki which, of course, cannot be converted into a Dhaba. The landlady has three sons, out of whom, one is settled in Italy, second one is looking after the Atta Chakki and the third one is Om Parkash for whom the demised premises is sought to be vacated for using it as a Dhaba. On the other hand, learned counsel for the respondent has submitted that once the landlady has another shop (Aatta Chakki) and had not disclosed it in her eviction petition, therefore, she had no right to maintain the eviction petition which has been rightly dismissed by the Courts below. He also submitted that the requirement of the son has been falsely pleaded because he is already having land which he is cultivating. He further submitted that as there is no illegality in the orders of the Courts below, therefore, there is no occasion for interfering in the said orders. I have heard both learned counsel for the parties and perused the available record with their able assistance. CR No.4254 of 2007 -3- ***** On the pleadings of the parties, the learned Rent Controller had framed three issues, out of which, issue No.1 was with regard to non-payment of rent which has become redundant. Issue No.2 was with regard to personal necessity which could not be proved by the landlady and issue No.3 was with regard to maintainability of the eviction petition which was not pressed by the tenant as is evident from the order of the learned Rent Controller where it has been observed that “the onus to prove this issue was on the respondent, but this issue was not pressed at the time of arguments, hence decided against the respondent”. The solitary issue of eviction is, thus, of the personal necessity which has been proved by the landlady by leading evidence on record that she has three sons, out of whom, one is settled in Italy, second one, namely, Raj Kumar is looking after the Aatta Chakki after the death of her husband and third one is Om Parkash, for whom the demised premises is required for running a Dhaba, who is only pursuing small agriculture. The learned Appellate Authority has committed a patent error of law in misreading the evidence while observing that the landlady had alleged that Atta Chakki has been installed by us which means that it includes Om Parkash as well, whereas it has been brought on record that Atta Chakki was installed by the deceased husband of the landlady who had categorically stated that it is now being looked after by her other son Raj Kumar. Insofar as the pursuit of agriculture by Om Parkash is concerned, that would not be a bar for the landlady for claiming the demised premises for the purpose of settling her son in the business of running a Dhaba in his own shop. In view of the above discussion, I find merit in the present revision petition and as such, the same is hereby allowed and the impugned orders passed by the Courts below, by which the eviction petition has been dismissed, are hereby set aside and the respondent/tenant is directed to vacate the demised premises. In the facts and circumstances of the present case, the parties are directed to bear their own costs. April 28, 2011. ( Rakesh Kumar Jain ) vinod* Judge