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2008(5) Supreme 463
Supreme Court of india
Tarun Chatterjee and Aftab Alam, JJ.
A.K. Jain — Appellant
versus
Prem Kapoor — Respondent
Civil Appeal No. 4680 of 2008
[Arising out of SLP (C) No.8530/2007]
Decided on : 28-07-08
(2002) 2 SCC 256, (2007) 5 SCC 660 – Distinguished.
Haryana Urban (Control of Rent & Eviction) Act, 1973 – Section 13 – Initiation of eviction proceedings by appellant, landlord, against Respondent tenant on plea of bonafide necessity – Rejected by Rent Controller – Appeal – Allowed by Appellate Authority ordering respondent’s eviction – Revision – High Court however set aside appellate order and restored judgment and order passed by Rent Controller and dismissed eviction petition filed by appellant – Appeal – Contention of Respondent that appeal was not maintainable as even though order of eviction was also based on growing needs of appellant’s son but in that connection there was no pleading as required under Section 13(3)(a)(ii) of Act – Held Section 13(3)(a) (ii) has application only in case eviction is sought for son’s requirement independently and separately from landlord – Instantly son and his wife and children were part of landlord’s family and all of them were living together – The accommodation of the son, his wife and their children was part of landlord’s personal necessity – Case of appellant was clearly covered by section 13(3)(a)(i) that deals with situation where landlord requires tenanted premises for his own occupation and it did not attract section 13(3)(a) (ii) that deals with the requirements of son of the landlord – Hence order of High Court set aside and that of Appellate Authority restored-Appeal allowed. (Paras 16, 17)
(2002) 5 SCC 397 – Relied upon.
Facts of the Case :
1.Eviction proceedings were initiated herein in the instant case by appellant, landlord, against Respondent tenant on plea of bonafide necessity. Said eviction petition was rejected by Rent Controller. Appeal thereagainst was allowed by Appellate Authority ordering respondent’s eviction. On Revision, High Court however set aside appellate order and restored judgment and order passed by Rent Controller and dismissed eviction petition filed by appellant
2.Present Appeal has been filed against said order of High Court. Contention of Respondent that appeal was not maintainable as even though order of eviction was also based on growing needs of appellant’s son but in that connection there was no pleading as required under Section 13(3)(a)(ii) of Act.
Findings of the Court :
Held Section 13(3)(a) (ii) will have application only in case eviction is sought for son’s requirement independently and separately from landlord. Instantly son and his wife and children were part of landlord’s family and all of them were living together. The accommodation of the son, his wife and their children was part of landlord’s personal necessity. Case of appellant was clearly covered by section 13(3)(a)(i) that deals with situation where landlord requires tenanted premises for his own occupation and it did not attract section 13(3)(a)(ii) that deals with the requirements of son of the landlord. Hence order of High Court was set aside and that of Appellate Authority was restored. Appeal was allowed.
Result : Appeal allowed.
Judgment
Aftab Alam, J. —
1.Heard counsel for the parties.
2.Leave granted.
3.This appeal arises for an eviction proceeding instituted by the appellant, the landlord, in terms of Section 13 of the Haryana Urban (Control of Rent & Eviction) Act, 1973. The eviction of the respondent, the tenant, was sought on a number of grounds, of which only personal necessity now remains relevant, and we, accordingly, propose to take note of facts germane to that ground. The Rent Controller, Faridabad rejected the Eviction Petition (24 of 1998) filed by the appellant by Order dated 26 August, 2004. The Appellate Authority, however, allowed the appellant’s appeal (Rent Appeal No.6 of 2004) and Ordered the respondent’s eviction by Judgment dated 28 March, 2005. The High Court in turn, set aside the appellate Order and restored the Judgment and Order passed by the Rent Controller vide. the Judgment and Order dated 3 April, 2007 in Civil Revision No.2344 of 2005 (O & M), preferred by the respondent. The High Court allowed the respondent’s revision and dismissed the eviction petition filed by the appellant primarily on the ground that the appellant had failed to make the necessary averments in the Eviction Petition as required by Section 13(3)(a)(i) of the Act. The finding of the High Court that led to the dismissal of the appellant’s case is admittedly based on an error of record and the Order coming under appeal is therefore liable to be set aside on that score alone. But before proceeding further we must recount the relevant facts and the respective views taken by the courts below.
4.The appellant, in August 1995, inducted the respondent as a tenant in a portion of his dwelling house at no.1007 in Sector 14, Faridabad. The let-out portion consisted of one garage-room and one bed room with attached bath and toilet. The portion of the house that remained with the landlord consisted of two bed rooms, baths and toilets and a kitchen.
5.On 13 April, 1998 the appellant filed the petition for eviction of the respondent from the tenanted portion of the house inter alia on grounds of personal necessity. In the Eviction Petition, it was pleaded that the appellant needed the entire house, including the part tenanted by the respondent for himself and his family. It was stated that the appellant’s family consisted of himself, his wife and a son and a daughter, both of whom were of marriageable age and were likely to be married soon. The respondent resisted the eviction proceeding and controverted the plea of personal necessity by pointing out that the appellant was an Executive Engineer in the Haryana Electricity Board and he was posted in Hisar where he lived in an official residence. His daughter stayed in Sholapur in connection with her studies. It was contended that the plea of personal necessity was false and unfounded.
6.The eviction proceeding remained pending before the Rent Controller for over six years in course of which a number of developments took place that, according to the appellant, further aggravated his need for a larger space and he required, more than before, the tenanted portion of his house. The appellant’s son was married in January 1999 and his wife (the appellant’s daughter-in-law) also came to live with them in that house. In 2004, he had one daughter who was about two years old at that time. (It was stated before us that the appellant’s son has now two female children aged 8 years and 6 years respectively). During the pendency of the proceeding before the Rent Controller, the daughter of the appellant was also married and though she lived with her husband, both of them frequently came to visit and stayed over-night with her parents. The appellant, therefore, needed a separate room not only for her son and daughter-in-law but also for her daughter and son-in-law. Another significant development was that the appellant’s retirement from service had come very close and he had no other place to live than his own house, a portion of which wa
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