JUDGMENT
Hemant Gupta, J.
1. The tenants are in revision petition aggrieved against the ejectment order passed by the learned Appellate Authority on the ground that the tenanted premises are required for bona fide use and occupation by the landlady and her family members.
2. The respondent herein sought ejectment of the petitioners from Shop-cum-Flat No.37, Sector 19-D, Chandigarh on ground that she is an old widow who has two sons, Vinod Kumar, one of the sons, was working in the Punjab National Bank from where he has taken premature retirement and relieved on 13.1.2001. The said son of the respondent wants to start a business and for the said reason the premises in question is required for their use and occupation. The ground floor will be required for shop whereas first and second floor are required for residence. It is the stand of the petitioners that ejectment petition is not maintainable as the building is non-residential building and the ground of personal necessity was not available to the landlady and the necessary ingredients were lacking in the petition. It was denied that the landlady wants to settle her son in the business and that, in fact, the landlady wants to enhance the rent of the premises in question.
3. The landlady has appeared as a PW1 and produced lease deed Exhibit P-l. Vinod Kumar, son of the landlady, has been examined as PW2 who has deposed that he has no other non-residential premises in his possession where he could set up his business. He produced order dated 13.01.2001, Exhibit P-2, on the basis of which he was relieved from service. The tenant appeared as RW4, who deposed that the first and second floors of the demised premises were never used for the purposes of godown and that the premises under their tenancy is not required by either by the landlady or by her son for use and occupation. The tenants also produced copies of previous judgments Exhibits R-l and R-2 whereby previous tenant Daya Singh was ordered to be evicted.
4. Learned Rent Controller found that the landlady is able to prove that she requires the premises in question for use and occupation of her son to run a business of stationery in the shop after his retirement from the bank and that she has no other accommodation available with her where her son can start his business. Therefore, the need of the landlady was termed as bona fide. However, ejectment order was not passed in favour of the landlady on the ground that she has been able to prove her personal necessity qua the shop portion but has failed to prove the change of user of upper portion and consequently dismissed the petition as tenancy cannot be splitted. However, in appeal against the said judgment, the Appellate Authority found that the entire Shop-cum-Flat is treated as non-residential premises and the contention that the tenancy cannot be split up was found to be erroneous and unsustainable. Consequently, the order of ejectment was passed against the petitioners herein.
5. Learned Counsel for the petitioners has vehemently argued that necessary ingredients to seek ejectment on the ground of bona fide requirement as contemplated in East Punjab Urban Rent Restriction Act, 1949′, has not been pleaded and proved by the landlady and, therefore, no ejectment order could be passed without pleading in terms of the aforesaid provisions and the proof thereof. Reliance is placed upon a Full Bench judgment of this Court reported as Banke Ram v. Shrimati Sarasti Devi 1977(1) Rent Control Reports 595. However, I am unable to accept the said argument. The said argument was not raised before the Courts below. However, with the assistance of learned Counsel for the parties, 1 have gone through the pleadings and the evidence. The landlady has pleaded’ in Para No.3(ii) of the ejectment petition as under: –
That the petitioner or her son is not in possession of any non-residential accommodation in the urban area, of Chandigarh nor they have vacated any such premises in the urban area of Chandigarh after the enforcement of the Rent Restriction Act. The premises was let out in the year 1981 when the said son of the petitioner was employed in Punjab National Bank. It is further relevant to submit and state that the said son of the petitioner is married and has lot of responsibilities to discharge.
6. It is contended by learned Counsel for the petitioners that such pleadings do not satisfy the provisions of Section 13(3) of the Act which consists of three necessary ingredients i.e. (i) the landlord requires it for his own use; (ii) the landlord is not occupying in the urban area concerned for the purpose of his business any other such building; and (iii) the landlord has not vacated such a building without sufficient cause after the commencement of this Act in the said urban area. It is contended that the third condition is not satisfied as the landlady has not disclosed that she has obtained the possession of the premises in the year 1980 after her ejectment petition against previous tenants Daya Singh was allowed. Thus, the landlady has got vacated building after commencement of the Act but such fact has not been disclosed in the ejectment petition.
7. Para No. 3(ii) of the ejectment petition reproduced above, has to be read as a whole. It is pleaded therein by the landlady that the premises were let out in the year 1981. The premises could be let out only if the same was vacant. The landlady has explained that at that point of time her sons was employed in the bank and now he is married and has lot of responsibilities to discharge. Therefore, the landlady has explained as to why the building was let out in the year 1981 and that now the same is required in view of changed circumstances. The language used in Sub-section (3) of Section 13 of the Act is not to be used mechanically. It is required to be examined whether the landlady has complied with the preconditions in substance rather than in form. A perusal of Para No. 3(ii) of the ejectment petition leaves no manner of doubt that the landlady has explained the circumstances of letting out the premises to the petitioners in the year 1981. Therefore, I am unable to accept the argument raised by the petitioners.
8. Learned Counsel for the petitioners then vehemently placed reliance upon decision of the Hon’ble Supreme Court reported as Shahbir Ahmad v. Sham Lal and An. Judgments Today 2002(1) S.C. 646, to contend that the petitioners cannot be ordered to be evicted from the shop-cum-flat which is a non-residential building within the meaning of the Act.
9. The said argument raised by learned Counsel for the petitioners is not tenable in law. The petitioners were inducted as tenants of the entire building which consists of a shop on the ground floor and residential flat on the first and second floors. The said building is a non-residential building after the substitution of definition of non-residential building in Section 2(d) of the Act vide East Punjab Urban Rent Restriction (Chandigarh Amendment) Act, 1982 w.e.f. 21.8.1982. By virtue of Section 4 of the Amending Act, the provisions of the Act were made applicable in relation to every case for eviction of a tenant from the building let under a single tenancy. As per said definition, non-residential building means “a building being used solely for the purpose of business and trade; or a building let under a single tenancy for use for the purpose of business or trade and also for the purpose of residence. Therefore, in view of the definition, the entire building is deemed to be non-residential building. Since it is a non-residential building, the tenant therein is liable to be evicted. Such proposition has been settled in a three Judge Bench judgment reported as Rakesh Vij v. Dr. Raminder Pal Singh Sethi and Ors. 2005(2) Rent Control Reporter 354.
10. In Shahbir Ahmad’s case (supra), the appellant was a tenant of a portion of first floor of shop-cum-flat. It was found that the tenanted premises is a part of non-residential building and cannot be used for residential purposes. The said judgment is on its own facts and, in fact, the definition of “non-residential building”, reproduced in Para No. 7 of the report, pertains to the Act applicable to Punjab and not to Chandigarh. Therefore, reliance of the petitioners on the aforesaid judgment is not correct.
11. It has been further argued, relying upon judgment of Hon’ble Supreme Court in Sree Balaji Krishna Hardware Stores v. Srinivasaiah, , that the requirement of a son for the premises in dispute is not justified. It is a case of mere wish as the landlady is already residing in her house. However, I do not find any merit in the said argument as such.
12. The business activities cannot be carried out in the residential area of Chandigarh in terms of the Capital of Punjab (Development & Regulation) Act, 1952. The requirement pleader that the son of the landlady wants to start his business in the shop portion. It coula is be pointed out that the landlady or her son is in occupation of any accommodation to enable him to set up his business. In the absence of availability of any accommodation, the argument raised by learned Counsel for the petitioner is not tenable at all.
13. Learned Counsel for the petitioner has also argued that the landlady has sought eviction of tenant Daya Singh on the ground that the demised premises are required for bona fide requirement again for her son Vinod Kumar. The requirement was negatived by both the Courts below and the ejectment, in fact, was ordered on the ground of change of user. Reliance has been placed on Salim Ahmed v. Surjit Kumar Sahai (1998-3)120 P.L.R. 182; Rahabhar Productions Pvt. Ltd. v. Rajendra K. Tandon 1998(1) Rent Control Reporter 482; Kempaiah v. Lingaiah and Ors. , and Savani Transport (P) Ltd. v. L. Rajamanikkam (dead) by L. Rs. 8 1995(2) R.C.R. 419. It is pointed out that prior to amendment in the year 1982, shop-cum-flat in Chandigarh was considered to be residential property and, therefore, the ground of personal requirement was available. However, it is not necessary that the requirement which was pleaded in the year 1973 has to fail in the ejectment petition filed on 8.5.2001. With the passage of time, the circumstances have undergone material change. The son of the landlady retired in the year 2001. Therefore, the requirement pleaded that son of the landlady wants to establish his business in the shop portion cannot be said to be suffering from any illegality.
14. The plea of bona fide requirement of premises by a landlord is a question of fact which has to be decided on the basis of facts of each case. Hon’ble Supreme Court in Joginder Pal v. Naval Kishore Behal (2002-2)131 P.L.R. 625, has found that bona fide requirement is not of the landlord himself but of his family members as well. It has been further found that it is natural desire of the father to settle his son in business or profession, as the case may be. Therefore, the desire of the landlady that her son should start business in the shop portion of the tenanted premises which is corroborated by the statement of said son that he is to establish his business leaves no manner of doubt that the landlady has established her bona fide requirement in respect of the premises in dispute. Both the Courts below have concurrently found that the shop portion is required by the landlady for bona fide use of her son though the learned Rent Controller declined to pass ejectment order on the ground that tenancy cannot be splitted and ejectment order in respect of a part of the tenancy cannot be passed. The said approach of the learned Rent Controller has been rightly found to be not correct. It is, no doubt, correct that tenancy cannot be splitted, therefore, even if the landlady has established her need in respect of the shop portion, the tenants are liable to be evicted from the entire building let out as a single tenancy. Thus, I do not find any patent illegality or material irregularity in the order passed by the learned Appellate Authority which may warrant interference by this Court in exercise of its revisional jurisdiction.
15. Consequently, the revision petition is dismissed with no order as to costs. However, the petitioners are granted three months time to hand over the possession of the demised premises to the respondent-landlady.