The main legal point established in the judgment is that a party cannot be non-suited on the ground of non-pleading of necessary ingredients in a statutory provision if the opposing party fails to raise specific objections, resulting in waiver.

JUDGMENT :

Harkesh Manuja, J.

1. By way of present petition, challenge has been made to the judgment dated 08.09.2015 passed in Rent Appeal No.366 of 17.11.2014 filed at the instance of petitioner-landlady, whereby, an appeal presented by the respondent-tenant, challenging the order of eviction passed by the Rent Controller, Chandigarh on 19.09.2014 came to be allowed.

2. In the present case, dispute relates to the tenanted premises i.e. House No.533, Sector 40-A, Chandigarh, owned by petitioner-landlady.

3. As per the averments, the tenancy started in the year 2004, at the rate of Rs.3000/- per month being the rent with an understanding that an increase of Rs.100/- shall be there on yearly basis. Subsequently, the petitioner-landlady filed an eviction petition inter alia on the ground of personal necessity, stating that she along with her husband is living in House No.533, Sector 40-A, Chandigarh besides his son, daughter-in-law and three grand children as well, whereas the same consists of two rooms only. Relevant para 7 from the eviction petition is reproduced hereunder for reference:-

“That the petitioner and her husband are living in a two rooms house owned by their son, who is living their with his family consisting of his wife, two daughters and one son. Now the daughters are grown up aged about 16 years, 14 years and son aged about 6 years. It has become difficult for the petitioner and her husband to live with the family of their son in a small two rooms house. Therefore, the petitioner requires the above said tenanted house for their personal occupation and the requirement of the petitioner is bonafide.”

4. In response, the respondent-tenant filed his objections/written statement while submitting that the plea of bonafide necessity as raised by the petitioner-landlady was not made out and further that she was having sufficient accommodation with her and property in question was not required for her personal use and accommodation.

5. Not agreeing with the contention of the respondent-tenant, the learned Rent Controller, Chandigarh vide order dated 19.09.2014, passed an eviction order against him, holding the plea of personal necessity/bonafide requirement of petitioner-landlady in her favour. Though as regards the ground of non-payment of rent, the same was not pressed whereas the plea of material impairment was recorded against the petitioner-landlady.

6. Aggrieved of the judgment passed by the Rent Controller, Chandigarh, two separate appeals were filed i.e. Rent Appeal No.334 of 27.10.2014, at the instance of respondent-tenant, challenging his eviction whereas Rent Appeal No.366 of 17.11.2014 was filed at the instance of petitioner-landlady, challenging the findings qua material impairment. Vide composite order dated 08.09.2015, both the appeals came to be decided by the learned Appellate Court, Chandigarh, whereby, the appeal filed by the petitioner-landlady was dismissed, however, the appeal filed at the instance of respondent-tenant was allowed.

7. Feeling dissatisfied with aforesaid judgment, the present petition has been filed by the petitioner-landlord.

8. Learned counsel for the petitioner submits that though the issue of personal necessity of petitioner-landlady has been found in her favour even by the appellate authority, however, she has been non-suited on the ground of non-pleading of necessary ingredient of Section 13(3)(i)(a) and (b) of the East Punjab Urban Rent Restriction Act, 1949, (for short, “1949 Act”), which required her to plead that she was not in occupation of other residential building in the urban area concerned or she had not vacated any such building without sufficient cause after commencement of 1949 Act in the said urban area. In this regard, learned counsel for the petitioner submits that no objection as regards the non-mentioning of the aforementioned ingredients in the eviction petition was raised by the respondent-tenant in his written statement, which resulted into waiver on his part and th