JUDGMENT V. D. Misra, C. J. (Oral).—This revision under section 21 (5) of the Himachal Pradesh Urban Rent Control Act, 1971 (referred to as the Act) is directed against the judgment of the Appellate Authority, Mandi Division at Kulu, setting aside the order of eviction passed by the Rent Controller and dismissing the petitioners application for eviction, 2. The petitioner landlady owns 3 or 4 houses in Kulu. One of the houses in which she is living has been gifted to her son Anand Swarup. She has got another son Prem Swarup, He is living at Sheo Bag outside the municipal limits of Kulu. He is married and has got two children. The petitioner wants the portion occupied by the tenant-respondent for the occupation and use as residence of the said Prem Swarup. 3. Before I go into the facts I will notice the relevant provision of the Act. It is sub-clause (iv) of clause (a) of sub-section (3) of section 14 of the Act. It reads thus: "(a) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession— * * * * * (iv) in the case of any residential building, if he requires it for use as an office, or consulting room by his son who intends to start practice as a lawyer, an architect, a dentist, an engineer, a veterinary surgeon or a medical practitioner, including a practitioner of Ayurvedic, Unani or Homeopathic system of medicine or for the residence of his son who is married, if— (a) his son as aforesaid is not occupying in the urban area concerned any other building for use as office, consulting room or residence, as the case may be ; and (b) his son as aforesaid has not vacated such a building without sufficient cause after the commencement of this Act, in the urban area concerned." It is plain that before a landlord can get the premises vacated for the residence of his married son, the landlord must prove two things. First, the son is not in occupation of any other building as residence in the urban area, and secondly, the son has not vacated any such building without sufficient cause after the commencement of this Act in the urban area concerned. Now both these conditions must be satisfied before a tenant can be asked to vacate. First, the son is not in occupation of any other building as residence in the urban area, and secondly, the son has not vacated any such building without sufficient cause after the commencement of this Act in the urban area concerned. Now both these conditions must be satisfied before a tenant can be asked to vacate. Therefore, the landlord must plead these facts in his application for eviction and, if necessary, prove them. 4. What is to happen if a landlord does not aver these facts in the application for eviction ? Can he be non-suited on this ground alone ? What is to happen if the tenant does not raise, any objection to this espect in his reply ? Is a tenant entitled to raise this objection for the first time in appeal or revision ? All these questions now stand answered by a judgment of the Supreme Court in Onkar Nath v. Ved Vyas, [ILR 1979 HP 1, (Supreme Court section)]. However, before I discuss this judgment I would like to refer to the judgment of this Court in Onkar Nath v. Ved Vyas, [ILR 1978 HP 58], which was under appeal before the Supreme Court. 5. Ved Vyas was a landlord. He filed an application for eviction of his tenant Onkar Nath under section 13 of the East Punjab Urban Rent Restriction Act, 1949 on the ground of personal requirement. The relevant part of section 13 is sub-section 3 (a) (i) which reads: "3. (a) A landlord mav apply to the Controller for an order directing the tenant to put the landlord in possession; (i) in case of a residential building, if : (a) he requires it for his own occupation ; (b) he is not occupying any other residential building in the urban area concerned ; and (c) he has not vacated such a building without sufficient cause after the commencement of this Act, in the said urban area ;" it will be noticed that sub-clauses (b) and (c) are pan materia with sub-clauses (a) and (b) of section 14 (3) (a) (iv) of the Act. 6. The landlord in his petition for eviction, failed to make any averment in respect of sub-clauses (b) and (c). No evidence was led by the landlord to prove them. The tenant also did not raise the objection at the earlier stage. The Rent Controller passed an order of eviction. 6. The landlord in his petition for eviction, failed to make any averment in respect of sub-clauses (b) and (c). No evidence was led by the landlord to prove them. The tenant also did not raise the objection at the earlier stage. The Rent Controller passed an order of eviction. The tenant appealed. Now he raised the objection that the landlord has neither pleaded nor proved the requirements of sub-clauses (b) and (c). The appeal was dismissed. The tenant then moved the High Court in revision. T. U. Mehta, J., (as he then was) after analysing the Full Beech judgment of the Punjab and Haryana High Court in Banke Ram v. Sarasti Devi, [1977 Current Law Journal 71], and the decision given by Chinnappa Reddy, J,, of the same Court in Kesho Ram v. Jagan, 1977 Rent Control Journal, 770, held thus ; “I am of the opinion that though it was necessary for the respondent-landlord to make allegation as regards the facts relating to clauses (b) and (c) of his plaint, his failure to do so does not result in the dismissal of the suit, nor does it call for any fresh amendment of the plaint which in fact amounts to requiring him to furnish the particulars of the material facts at this stage, because the petitioner tenant has not raised any plea with regard to this defect in the plaint at any stage during the course of the trial. The fact that he raised this plea before the appellate authority without any objection by the other side does not help him, because he was not entitled to raise that plea even before the appellate Judge." This matter was thereafter taken by the tenant to the Supreme Court. 1 will reproduce the judgment of the Supreme Court which is indeed very short. After reproducing the relevant provision of the law the Court observed thus: "It is common ground that there are three requirements to make out a cause of action for eviction under that provision, and indeed this is apparent from a bare reading of the sub-section. In the present case the finding is to the effect that the landlord requires the residential building for his own occupation. In the present case the finding is to the effect that the landlord requires the residential building for his own occupation. But, the legislation has taken care to insist upon two more conditions, namely: (a) that the landlord is not occupying any other residential building in the area concerned ; and (b) that he has not vacated such a building without sufficient cause. There is not a scintilla of evidence nor indeed there is any averment in compliance with these latter conditions. The necessary consequence follows that not merely is there inadequacy of pleadings sufficient to make out a cause of action but total absence of proof of two vital requirements." 7. In the instant case neither there is any averment about sub-clause (b) nor there is any evidence about it. This is a very important condition indeed. The legislature wanted to be sure that a person who may be occupying any residential premises in the area concerned should not have vacated that in order to enable himself to get the advantage of this provision of law. The requirement relates not only to the period immediately preceding the filing of the application but in respect of the total period starting from the date when the Act came into force till the filing of the application. It is true that in this case evidence has not led that Prem Swarup was residing at Sheo Bag at the time he appeared in the Court. He might be living there even before the application was made. But the question is, was he at any time after the commencement of the Act living within the municipal limits of Kulu ? there is neither an averment nor any evidence on that aspect. The petition, therefore, must fail on this account alone as ruled by the Supreme Court. 8. I may also at this stage refer to another aspect. When the application for eviction of the present respondent was made, the respondent in his written statement specifically alleged that a set was lying vacant in the same building in which he was a tenant. This averment was not specifically denied though there was a general denial in the replication. Now, when the evidence was led by the applicant, not a word was said about this alleged vacant set. This averment was not specifically denied though there was a general denial in the replication. Now, when the evidence was led by the applicant, not a word was said about this alleged vacant set. The applicant knew that this objection had been raised by the tenant, and if the applicant wanted to prove her version with respect to that set, it was her duty to lead evidence, it was not done. The tenant, however, produced evidence on this aspect. JR. Ws. 1 to 3 were examined. R. W. 1 categorically stated that the set in question was lying vacant. The only suggestion put in the cross examination was that this set was kept vacant to enable the landlady to give it to her daughter Smt. Vijay Kumari. The relevant part in the cross examination reads thus: "I do not know if the afore-mentioned vacant set is kept reserved for Smt. Vijay Kumari the daughter of the plaintiff." It is, therefore, obvious that the landlady had a set vacant which she could have given to her son Prem Swarup. Simply to aver that the set in question was meant for occupation by her daughter Smt. Vijay Kumari does not help her. The evidence of the witnesses show that this set had been lying vacant for years. It is not the purpose or the rent legislation to enable a landlord to evict a tenant while the landlord has vacant accommodation which can be used by those who need it. Indeed I am satisfied that in the circumstances of this case the landlady was not acting bona fide to get the tenant evicted on the plea that her son Prem Swarup was in need of the occupation of the same. 9 The landlady has not come in the witness box. She has kept away from the court. Indeed it is for that reason that the lower Appellate Court non-suited the landlady. I need not in this particular case go into this question since the tenant succeeds on other grounds. 10. In view of above discussion, I dismiss this revision petition with costs. Revision dismissed.