JUDGMENT
Sarojnei Saksena, J.
1. Tenant-petitioner has filed this revision petition Under Section 15(5) of the East Punjab Urban Rent Restriction Act, 1949, assailing the ejectment order passed by the Rent Controller vide her order dated March 19,1996.
2. In the lower court the landlord-respondent filed a petition Under Section 13-A of the said Act for tenant-petitioner’s eviction from the ground floor of house No. 3270, sector 15-D, Chandigarh, comprising of drawing-cum-dinning room, bedroom, kitchen, bath-room and toilet etc. referred to as the demised premises. He pleaded that he is a specified landlord/owner of the demised premises which is leased out to the tenant petitioner at a monthly rent of Rs. 750/- exclusive of water and electricity charges. It was also averred that the landlord-respondent is serving as an Executive Engineer in Punjab Water Supply and Sewerage Board and is posted at Patiala. He will attain the age of superannuation on June 30, 1995. He admitted that apart from the demised premises, he also owns another residential house i.e. 1225, sector 21-B, Chandigarh, but he is not in possession of the said house and the same is in occupation and possession of tenants. In the demised premises his son was in occupation of two rooms and the remaining portion of the said house is in the occupation of the tenant-petitioner. After his retirement he bona fide intends to reside in the demised premises. His family consists of his wife, sons and daughter, besides aged mother. His wife is suffering from ostro-arithritis of both the knees-joints and for that matter the demised premises, which is situate on the ground floor portion meets his requirements and would be suitable to him.
3. Upon being noticed, the tenant-petitioner filed leave to defend, which was granted. In the written statement, he has taken a preliminary objection that the landlord-respondent is not a specified landlord. He has filed this ejectment petition on false and frivolous grounds. He has suppressed material fact that the ground floor and second floor of house No. 1225, sector 21-B, Chandigarh, is in his occupation. He has filed false affidavit. Since he is occupying ground floor and second floor of House No. 1225, Sector 21-B, his petition Under Section 13-A is not maintainable. Admitting that he is a tenant in the demised premises at a monthly rent of Rs. 750/-, tenant-petitioner averred that the ground floor of House No. 1225, Sector 21-B consisting of four bed rooms, kitchen, two toilets, store and bathrooms, is in occupation of the landlord-respondent. The first floor, having the some accommodation, is in possession of the tenant, but this tenant is inducted before filing this rent petition against him. Second floor of this house consists of two bed-rooms, kitchen, store, bathroom and toilet which is also in occupation of the landlord-respondent. His sons are not residing with him in Chandigarh. After the filing of this petition Prem Kumar has also vacated the rooms in his possession in the said house. He is not residing in the suit house but has only kept certain articles and has locked the said portion. He is residing in house No. 1225, Sector 21B. His one son is a doctor and another son is also in Government service. His mother is also not residing with him. Hence he is in occupation of suitable accommodation in house No. 1225, Sector 21-B, Chandigarh.
4. On these pleadings, issues were framed and parties adduced their evidence.
5. The learned Rent Controller decided the petition in favour of the landlord- respondent and held that he is a specified landlord. He has retired now and he requires the demised premises for his and his family members’ residence. The Rent Controller also considered that in house No. 1225, Sector 21-B half portion of the ground floor is occupied by Bhisham Kumar, and half portion of the said house is occupied by Sunil Kant, and two rooms on the ground floor and one room on the top floor of this house are lying vacant. She further held that in the disputed house two rooms are in occupation of the landlord, while remaining portion is in possession of the tenant-petitioner. This is a single story house, which is more suitable for the residence of the landlord-respondent. The Rent Controller further held that no doubt, his one son is a doctor in Patiala and another son is posted in Uttar Pradesh, they are living there with their family members but they keep on visiting their father with their family members. His daughter is also residing with him. On these counts, the petition was allowed.
6. Tenant-petitioner’s learned counsel vehemently argued that except two rooms on the ground floor, the whole of the house No. 1225, Sector 21-B, is now in occupation of the landlord-respondent. Two rooms on the ground floor of this house are in occupation of Bhisham Kapur who is not a tenant, but is landlord’s nephew. It is not the case of the landlord-respondent that this house is not suitable for his residence. No evidence was adduced that his wife is suffering from any such disease that she cannot live on the first or second floor of a house. He pointed out that the landlord-respondent examined his son Dr. Sandeep Garg PW-8, who has testified that his father retired on June 30, 1995. He has also admitted that his father is a voter in Chandigarh, wherein his address of House No. 1225, Sector 21B is mentioned. His father is also having ration card, wherein also this addresses is mentioned. He has admitted that now he has shifted to Patiala where he is living with his family, but earlier he was living, in the suit house in the two rooms wherein now his father is residing. He has also stated that his father has taken telephone connection, which is now installed in the suit house. Petitioner’s counsel vehemently commented on the statement of this witness, wherein he has admitted that whole of house No. 1225, Sector 21-B is vacant except ground floor (half portion volunteered from Ist August, 1995). He, thus, pointed out that landlord’s own son has admitted that whole of this house i.e. 1225, Sector 21-B is lying vacant except two rooms on the ground floor, which are admittedly in possession of Bisham Kumar, who is not a tenant and not a stranger to the landlord, but his own nephew. Even if it is to be believed that he is residing in this portion for the last 4/5 years, he is not a stranger. He pointed out that in this house No. 1225, Sector 21-B, there are four rooms on the ground floor, four rooms on the first floor and two rooms on the second floor. Except two rooms on the ground floor, whole of the house is lying vacant and is in possession of the landlord-respondent. He also pointed out that landlord’s witness Harcharan Singh Gulati PW-5 has admitted that K.B. Raju has vacated the house in December 1995. Commenting on the statement of Bisham Kumar, P.W.-2 he submitted that no doubt Bhisham Kumar has tried to support the landlord-respondent by saying that two tenants, namely, Mr. Sharma and Mr. Gupta are occupying the first floor’s of this house; but landlord-respondent’s own son Dr. Sandeep Garg has admitted that whole of the house except two rooms on the ground floor is lying vacant.
7. Thus, tenant-petitioner’s learned counsel has concluded his arguments by submitting that since whole of the house in Sector 21-B is in possession of the landlord-respondent, it cannot be said that he is a specified landlord qua the demised premises and further it cannot be believed that this house situated in Sector 21-B is not suitable for his residence. Landlord-respondent has given a false affidavit that he is not occupying any other suitable house in Chandigarh.
8. Landlord-respondent’s learned counsel, relying on Dr. B.R. Dullar v. Dr. C.P. Sethi, (1989-1) P.L.R. 546; Dr. Dina Nath v. Smt. Santokh Kaur, (1987-1) 91 P.L.R. 171 and Parminder Singh and Anr. v. Budh Singh, 1990(1) R.L.R. 75, contended that it is not for the tenant to point out which house is suitable for the residence of the landlord, as the landlord is the sole arbiter of his bona fide requirement and his decision is to be respected by the court as to which house is suitable for his residence. He commented that it is wrong that except two rooms on the ground-floor, whole of the house situate in sector 21-B is lying vacant and is in possession of the landlord-respondent. He referred to the statement of Dr. Sandeep Garg, wherein he has stated “It is further incorrect to suggest that the complete set of ground floor as well as of second floor is in the occupation of the petitioner.” According to him, Dr. Sandeep Garg has thereby clarified that the other portions of the said house are also not in possession of the landlord-respondent.
9. During arguments, landlord-respondent’s learned counsel admitted that earlier house No. 1225, Sector 21-B, was occupied by tenants. Ashok Kumar tenant vacated his portion on August 1, 1995 i.e. two rooms on the ground floor of the said house, and K.B. Raju vacated one room on the top floor on November 15 1995. He submitted that on the ground floor there are four rooms. Two rooms are in landlord’s possession but two rooms are kept by Bhisham Kumar. On the first floor there are two tenants Mr. Sharma and Mr. Jiwan Lal and on the second floor one room is in possession of the landlord, but in another room Sunil Kant tenant is residing.
10. So far as the above authorities are concerned, in my considered view, they are distinguishable on facts.
11. In Parminder Singh’s case (supra) this Court has held that if the landlord files a petition Under Section 13-A of the Act to get possession of the residential building, on the plea that his retirement is within a stipulated period and he does not own and possess any other suitable accommodation, the Court is not required to go into the bona fide need of the landlord.
12. In Dr. Dina Nath’s case (supra) petition Under Section 13-A was filed by the specified landlord, who retired as an officer from Indian Council of Agricultural Research, which is an instrumentality or agency of the Government of India. He alleged that he does not own and possess any other suitable accommodation in the local area and intends to reside in the disputed house. During the pendency of the petition, he died. The Court held that this right accrues to his widow and other heirs to recover immediate possession of the premises.
13. In Dr. B.R. Dullar’s case (supra) also this court held that it is for the landlord to see after his retirement as to which out of the two premises i.e. one presently occupied by him and the other demised premises, is more suitable to him. Sufficiency or insufficiency is not the criterion to be gone into Under Section 13-A of the Act.
14. In this case, if the landlord-respondent would have pleaded or would have filed an affidavit that since other tenants, who were occupying different portions of house No. 1225, Sector 21-B, have vacated the same during the pendency of the petition and now he is occupying whole of the house except two rooms on the ground floor which are in occupation of his nephew Bisham Kumar, but on one count or the other, this house is not suitable for his residence, the position would have been different. On the other hand landlord -respondent has categorically denied that this house is in his possession. According to him, it is occupied by different tenants and two rooms on the ground floor are in possession of his nephew Bhisham Kumar, but his son Dr. Sandeep Garg in cross-examination has categorically admitted that whole of the house i.e. 1225, Sector 21-B, is vacant except ground floor (half portion volunteered from August 1, 1995). Thus, it is obvious that from August 1, 1995, whole of this house except two rooms on the ground floor, is lying vacant and is in possession of the landlord-respondent. No doubt, in further cross-examination this witness has stated “It is further incorrect to suggest that the complete set of ground floor as well as of second floor is in occupation of the petitioner”. From these lines, it cannot be deduced that this witness wanted to say that the second floor is not in occupation of the landlord-respondent. The emphasis in the question was on complete set of the ground floor’, which definitely is not in possession of the landlord-respondent. If by making above statement in his cross-examination that whole of this house is lying vacant except two rooms on the ground floor, the respondent thought that his son had not stated correct facts, this witness could have been re-examined and the said position could have been clarified. As to how this House No. 1225, Sector 21-B, Chandigarh, is not suitable for landlord-respondent’s residence is neither pleaded nor clarified by him. Admittedly, his family consists of his wife and one daughter. His both sons are married and are posted out. It cannot be denied that these sons must be paying visits to their father along with their family members, and it is not for the tenant to point out the unsuitability to the accommodation available with the landlord. It is for the landlord to plead and prove that the other house, which, in this case the respondent-landlord has utterly failed to prove. The Rent Controller has not taken into consideration this aspect of the case and has not at all considered the above- referred statement of Dr. Sandeep Garg P.W.-8. Thus it is obvious that the Rent Controller has fallen into an error while allowing the landlord-respondent’s ejectment petition. The impugned order suffers from the aforementioned infirmity, which is based on misreading of the evidence on record.
15. No doubt, under the provisions of the Act, the landlord is sole arbiter of his choice. He has to decided which accommodation is more suitable for his residence. The tenant cannot point out that out of the two accommodations in the occupation of the landlord a particular one is more suitable for latters residence. The landlord has a subjective choice with regard to this concept of suitability but it cannot be his whim or caprice to evict the tenant. This suitability has an element of reasonableness also. About his subjective choice of this suitability, the landlord has to satisfy the conscience of the Court objectively as to why he considers a particular accommodation to be suitable for his residence and why the other accommodation is not suitable for his residence. The bed rock of this concept of suitability is the reasonableness which is justiciable.
16. In this case after conclusion of the arguments, the landlord-respondent has filed Civil Misc. No. 4581 of 1996, along with his affidavit wherein he has testified that the statement of his son Dr. Sandeep Garg cannot be relied on as it is consistent with the plea raised by the tenant in his written statement that the upper floor of house situated in Sector 21-B Chandigarh is occupied by the tenants. Even while submitting this affidavit, he could not muster the courage to say that his son has given a false statement. He could have named the tenants who are occupying the upper floor of this house and could have specified as to how many rooms are occupied by them, but even in this Civil Misc. and his affidavit, he could not say a word that the upper floor of house No. 1225, Sector 21-B, is occupied by the tenants. During arguments, landlord learned counsel made a statement that tenant Ashok Kumar vacated a portion of the aforesaid house on August 1, 1995, and another tenant K.B. Raju vacated another portion of this house in November, 1995. These are the subsequent events. If the tenant has brought these facts in evidence and no other person than the son of the landlord has proved that whole of the said house except two rooms on the ground floor is now vacant and is in possession of the landlord, this evidence cannot be brushed aside simply on the ground that the tenant has not taken such a plea in his written statement. It is basic concept of law that while deciding the said petition, subsequent events can be and should be taken into consideration.
17. Even in this Civil Misc. application supported by an affidavit of the landlord, he has not said a word as to why this House No. 1225, Sector 21-B, is not suitable for his residence. Thus, the tenant has proved that another accommodation i.e. whole of house No. 1225, Sector 21-B, except two rooms on the ground floor is lying vacant and is in possession of the landlord-respondent. It is also obvious on record that the landlord-respondent has neither averred nor stated on oath that this house is not suitable for his residence. He has only pleaded that since this house is occupied by tenants, it is not suitable for this residence. No other reason is assigned for its unsuitability. Thus, in my considered view, since the landlord-respondent is in occupation of another house about which he has not proved that it is not suitable for his residence, he cannot evict the tenant-petitioner from the demised premises.
18. Accordingly, the revision petition is hereby allowed. The impugned order is set aside.