1. This revision has arisen out of an eviction order under S. 13 of the East Punjab Urban Rent Restriction Act, hereinafter referred to as the Act, in respect of a house situated at Jullundur. The order passed by the Rent Controller on Nov. 24, 1973, was confirmed by the Appellate Authority on March 4, 1975. The main point for determination is a legal one which has previously been considered in Banke Ram v. Smt. Sarasti Devi, (1977) 1 Ren CJ 332 : (AIR 1977 Punj 158)(FB), a Full Bench decision of this Court.

2. The relevant facts of the case and the findings thereon may at first be given before looking at the legal issue involved. Two brothers Bawa Gurdas Ram and Bawa Sewa Dutt had purchased the house in dispute through a registered deed dated Aug. 10, 1942, from Bishan Dass. At that time Udham Singh who was practising as a lawyer at Jullundur was the tenant. Some time after the purchase Sewa Dutt went away to England and during his absence rent of the house continued to be received by Gurdas Ram as one of the landlords. Sewa Dutt in fact came back from England after an absence of about thirteen years and a few months before his return eviction application was presented to the Rent Controller in the month of May, 1971. Only two grounds of eviction taken in the application may be referred to. One of them was that the house had been let out to Udham Singh for a residential purpose and that after his death it began to be used by his heirs in connection with their business. Four sons, a widow and a daughter of Udham Singh were impleaded as respondents to the application. The other ground of eviction mentioned in para. 3(e) of the application may be stated in the very words of the landlords. It reads as follows:--

"That petitioner No. 2 Bawa Sewa Dutt is in U. K. and is coming to India for finally setting down at Jullundur and he requires the premises in dispute for his personal use and occupation bona fide."

Reply to this ground of eviction was given by the tenants by saying that Sewa Dutt was not coming back to India as he had finally settled in England. Furthermore, it was pleaded that he had many other properties in India and also in Jullundur which were so commodious that he could not utilise all of them. As about the change of the use, the tenants pleaded that Udham Singh had been using the house as office--cum--residence. The house was also alleged to be in use for a similar purpose. Paramjit Singh who is one of the tenants has in fact been found to be a property dealer and, according to him, as brought out in evidence he had some other place for business but for the sake of advertisement he had put up a notice board outside the house in dispute showing his profession.

3. As about the change of user, the Appellate Authority gave a finding in favour of the landlords but I do not agree with that finding. The conclusion arrived at by the Appellate Authority is that the work of a lawyer in his office was intimately connected with his residence and it could not be said that Udham Singh was using the house in connection with any business. The tenants were held to be carrying on business as property dealers in the house itself and thereby they were said to have changed it into a place of business. Dharam Pal A. W. 1 and Sudarshan Pal A. W. 2 deposed about this fact that they had gone to the house in connection with the purchase of some property and they had thereby seen paramjit Singh working as a property dealer. There was also said to be a notice board indicating that Paramjit Singh was carrying on his business. It was also stated by him that the house was being exclusively used for residential purposes. I cannot wholly believe him on this point. The presence of a big notice board outside the house is indicative of the fact that some part of the business is also being carried on in the house itself. However, this kind of user of the house is not likely to cause damage to it or to change its nature from a residential building to a non--residential building. It has not been shown that the tenants are residing in some house other than the one in dispute. They are thus primarily using the house for residence though one of them is engaged in such a business which requires the meeting of several other persons. A property dealer has only to hold a talk with a prospective customer and then to settle a bargain. Some record may have been there in one of the rooms pertaining to the correspondence which might have been made with different clients. It is, therefore, held that the tenants have not used the building for a purpose other than that for which it was leased.

4. On the second ground of eviction the finding of the Appellate Authority is that Sewa Dutt came back to India in the month of Nov. 1971. He could only get one room and a servant quarter for his residence. This accommodation was held to be insufficient for his requirements. The application having been filed on behalf of Sewa Dutt before his return from England, whatever accommodation was obtained by him subsequently could hardly be taken into consideration. This fact could not at all be ignored that when he filed the application he being not in India did not have any place for residence at Jullundur. Sewa Dutt gave this statement at A. W. 7 on Feb. 6, 1973, that he has gone to England in the month of March, 1959. On his return from there he took up residence in a house belonging to his sister--in--law at Model Town, Jullundur, without the payment of any rent. His son was said to be still in England and he was thinking of coming back to India. It can thus not at all be doubted that the need of the petitioners at the time of the filing of the application was in fact bona fide and this is a material fact to be taken into consideration that subsequent to the filing of the application he had in fact come to Jullundur where he wanted to reside permanently.

5. It was argued on behalf of the tenants that Sewa Dutt could not be taken to be a landlord who could file an application for eviction in view of the definition of landlord as contained in S. 2(c) of the Act. For the purpose of the Act a person would be a landlord if he is entitled to receive rent. There is no dispute inter se both the landlords about the right to recover rent. After the sale--deed in favour of both the landlords Udham Singh had attorned to them and thus not only Gurdas Ram but Sewa Dutt also became entitled to receive the rent. When Sewa Dutt was in England he could not possibly receive the rent personally and Gurdas Ram never claimed that he was only recovering the rent from the tenants in relation to his own share. The Appellate Authority rightly held both these persons who filed the application for eviction to be landlords under the Act. There is hardly any dispute on this proposition that if one landlord bona fide requires the premises for his own use and occupation it would be considered to be a requirement on behalf of all the landlords. It has even been recognised that the need of a member of the family is such a need on the basis of which any landlord can get a tenant evicted.

6. Coming now to the main argument, it has been urged that the ingredients of sub--cls. (b) and (c) of S. 13(3)(a)(i) of the Act were not pleaded by the landlords and thus their application was liable to fail on that ground. The question referred to the Full Bench in Banke Ram's case (AIR 1977 Punj 158)(FB)(supra) was formulated as follows (at p. 159):--

"Whether a landlord applying for the eviction of his tenant on the ground contained in sub-paras. (b) and (c) of para. (i) of S. 13(3)(a) of the East Punjab Urban Rent Restriction Act, 1949(hereinafter called the Act), i.e., for his own use and occupation has or has not to specifically plead in his application the contents of sub-paras. (b) and (c) aforesaid, which put a rider on the right of the landlord to get the eviction of his tenant from the premises even for his own use unless he succeeds in proving that he was not in occupation of another residential building in the same urban area and that he had not vacated any such building after the commencement of the Act without any sufficient cause."

The reply given by the Full Bench is that it is essential for a landlord to plead the ingredients of sub--cls. (b) and (c) of paragraph (i) of S. 13(3)(a) in the eviction application and in that manner the decision of the Division Bench in Krishna Lal Seth v. Pritam Kumari, (1961) 63 Pun LJ 865, was overruled. In the point referred, the emphasis was on the proof of the ingredients but in the answer that was given stress was laid on the pleadings of the ingredients of sub--cls.(b) and (c). It has further been noted in Banke Ram's case that in a number of judgments which were cited it had been found that amendments had been allowed and the cases had been sent back permitting further evidence to be led after the amendment of the pleadings. There was a clarification made in para. 12 of the judgment which is to some extent relevant to the case in hand. That clarification is as follows:--

"However, it may be made clear that when it is held that it is essential to plead the ingredients of sub--cls. (b) and (c) in the eviction application by the landlord, it should not be understood that under no circumstances, in the absence of pleadings, the evidence regarding the ingredients envisaged in sub--cls. (b) and (c) can be looked into."

When Sewa Dutt A. W. 7 deposed as to where he was residing and in what capacity, he was definitely adducing proof with regard to sub--cl.(b). This fact stands uncontroverted that he was not residing in any house in his own right. It has further to be taken into consideration that at the time eviction application was filed he was nowhere near Jullundur and consequently was not expected to occupy any house there. The proof of the ingredients of sub--clause (c) is also there. Having resided in England for about thirteen years prior to the filing of the eviction application, it could not be said that he had vacated any building at Jullundur for making out a case for getting the tenants evicted from the house in dispute. There being proof about both the ingredients (b) and (c), the eviction on the point could be taken into consideration even without the pleadings as permitted by the ratio of the Full Bench decision itself. Anyhow, from the pleadings as contained in para. 3(e) of the application already quoted in full in the earlier part of this judgment, it is evident that Sewa Dutt had said this thing that he was residing in the U. K. In that manner, he can be taken to have pleaded in an implied manner that he was not occupying any residential house at Jullundur. By way of corollary to this plea it can also be held that he was indicating in a definite manner that he had not recently vacated any house at Jullundur before the filing of the eviction application.

7. The decision of the Full Bench given on Dec. 17, 1976, was considered from the same angle as I have in Kesho Ram v. Jagan, (1977) 1 Ren CJ 770(Punj) decided on Jan. 17, 1977. It was mentioned that this matter was required to be noted that the Full Bench did not lay down that failure to plead the ingredients of sub--cls. (b) and (c) must necessarily result in dismissal of the petition for ejectment. The ingredients of these sub--clauses were said to be no magic formulae or incantation which if not recited must necessarily entail a dismissal of the petition. Further observations made by O. Chinnappa Reddy, J. in Kesho Ram's case (supra) are to the point and may be reproduced with advantage as follows:--

"In a case where a landlord goes before the Rent Controller with an application for ejectment under S. 13(3)(i) and alleges that he requires the building for his own occupation but fails to allege the ingredients of sub--cls. (b) and (c), it is open to the tenant to plead the failure of the landlord to allege the ingredients of Cls. (b) and (c). It is further open to the tenant to plead that the landlord was occupying another residential building in the urban area concerned or that he had vacated such a building without sufficient cause. If he does not raise any of these questions and if he is content to join issue on the question of the requirement of the landlord of the building for his own occupation, an he be permitted after losing the application before the Rent Controller to come before the appellate Court or the revisional Court and contend that the ingredients of Cls. (b) and (c) were not averred in the plaint? Can he be allowed to withhold a plea before the first Court on the questions raised by him there? Can he be allowed to spring such surprises on the opposite party? Would not the opposite party be prejudiced thereby, for, if the objection had been raised at the earliest, the opposite party would have sought a suitable amendment? These are all questions which must be considered and decided before a tenant is allowed to raise before the appellate Court or the revisional Court, for the first time, a point that the ingredients of Cls. (b) and (c) were not pleaded in the petition. I may add that the strict rule regarding pleading applies with as much force to the respondent before the Rent Controller as to the petitioner before the Rent Controller. The decision of the Full Bench does not touch the question of the exercise of discretion by the appellate or the revisional Court."

All these remarks apply with full force except this part that in the grounds of revision and objection about failure to plead the ingredients of Cls. (b) and (c) had been taken but that can hardly be a ground for not applying the principles laid down in Kesho Ram's case. In the instant case no objection was taken either before the Rent Controller or the Appellate Authority that certain essential ingredients of s. 13 of the Act had not been pleaded. It is not a fit case in which the tenants can be allowed to raise a point at such a belated stage. If the objection is allowed, it would lead to the amendment of the pleadings and trial of the whole case over again, thereby delaying the eviction of the tenants for several more years to succeed in raising such a defence as would defeat the landlords in the eviction application itself.

8. I thus do not see any such legal defect on account of which the tenants can succeed in the present revision. The same is dismissed but without any order as to costs as one of the grounds of eviction held by the Appellate Authority to be proved has not been upheld by me.

9. Revision dismissed.