Honble PASAYAT, J.—The present appeal is filed against the judgment and order dated November 27, 2001 passed by the High Court of Himachal Pradesh, Shimla in Civil Revision No. 35 of 1999. By the said order, a single Judge of the High Court of Himachal Pradesh dismissed the eviction petition filed by the landlord reversing order of ejectment passed by the Rent Controller, Shimla and confirmed by the Appellate Authority (II), Shimla.

(2). The appellant herein is the owner of the a building being House No. 108, Anandele, Shimla (suit premises for short). He let the first floor of the suit premises to the respondent. The landlord filed an eviction petition against the tenant in respect of the first floor of the building in November, 1980. The petition was allowed by the Rent Controller by an order dated October 31, 1984. The tenant preferred an appeal and challenged the decree of eviction. On September 17, 1986, however, a compromise was arrived at between the parties. On the basis of the said compromise, the tenant agreed to vacate first floor in favour of the landlord and was inducted as tenant of the ground floor of the same building.

(3). According to the landlord, at the relevant time he was staying all alone in Shimla. Subsequently, however, his wife had also shifted from village Panhoi to Shimla. Moreover, the landlord wanted to get his child educated at Shimla where best facilities for studies are available. He therefore, filed eviction petition against the tenant. The Rent Controller, Shimla, by an order dated January 20, 1993, held that the landlord wanted the premises for his bona fide occupation and accordingly an order of eviction was passed. Being aggrieved by the said order, the tenant preferred an appeal which was dismissed by the Appellate Authority (II), Shimla, by an order dated November 30, 1998. The aggrieved tenant carried the matter to the High Court by filing Civil Revision 35 of 1999. According to the landlord, a new ground which was never raised before the courts below was put forth by the tenant contending that the eviction petition filed by the landlord was not maintainable in view of third proviso to sub-section (1) of Section 14 of the Himachal Pradesh Urban Rent Control Act, 1987 (hereinafter referred to as the Act). Section 14 of the Act provides for eviction of tenants in certain cases on certain grounds. Sub-section (3) deals with cases of requirement of building premises by the landlord. The relevant part of sub-section (3) reads as under:

"(3) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession -

(a) in the case of a residential building, if -

(i) he requires it for his own occupation :

XX XX XX XX XX XX

Provided further that where the landlord has obtained possession of any building or rented land under the provisions of clause (a) or clause (b) he shall not be entitled to apply again under the said clause for the possession of any other building of the same class or rented land:"

(4). It was contended on behalf of the tenant before the High Court that since the landlord had obtained possession of the first floor earlier he was not entitled to apply again. The petition, therefore, was not maintainable and was liable to be dismissed on that ground alone. The High Court upheld the contention relying on a decision of this Court in Molar Mal (dead) through LRs. vs. M/s. Kay Iron Works (Pvt.) Ltd. (1).

(5). A two-Judge Bench of this Court in Molar Mal had an occasion to consider a similar provision in Haryana Urban (Control of Rent and eviction) Act, 1973 (hereinafter referred to as the Haryana Act). Proviso to Section 13(3)(b) of the Haryana Act also creates an embargo on the landlord from seeking eviction of the tenant if he had earlier obtained eviction of other tenants under the said provision. Considering the ambit and scope of the provision, the Bench observed:

"On behalf of the landlord, it is next contended that the proviso does not apply to the

Click Here to Read the rest of this document