REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4680 OF 2008 [Arising out of SLP (C) No.8530/2007]

A.K. Jain … Appellant

Versus

Prem Kapoor … Respondent

J U D G M E N T

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,

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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

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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

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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 was the subject matter of the

proceeding.

7. The rent controller did not accept the appellant’s case and rejected

the Eviction Petition by order dated 26 August 2004.  

8.      Against the order passed by the Rent Controller the appellant filed

appeal  before  the  Appellate  Authority  on  27  September  2004.  It  is

significant to note here that five days after the order was passed by the

Rent Controller the appellant retired from service on 31 August,  2004

and  before  the  Appellate  Authority  he  produced  his  retirement  order

dated 25 august 2004 which was marked as ‘X’.  

9.    The Appellate Authority allowed the appellant’s appeal, accepted the

case of personal necessity and ordered the respondent’s eviction. It took

into  consideration  all  the  developments  that  took  place  since  the

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institution of the proceeding and which were amply borne out from the

evidences  led  before  the  Rent  Controller.  As  regards  the  appellant’s

retirement  from  service  the  Appellate  Authority  made  the  following

observations:

“Admittedly, A.K.Jain, petitioner has since retired from service with effect from 31-8-2004 vide order dated 25-8-2004 mark X and now he has shifted in his house at Faridabad  with  his  wife  in  which  the  respondent  is  a tenant in some portion of the house.  The petitioner is not having any  otherwise in Faridabad where he alongwith his  wife  start living  after  his  retirement  from service. The petitioner has the right to live with dignity after his retirement in his  own house which was constructed by him while he was in service.”

[Emphasis added]

The Appellate Authority further observed as follows:-

“The petitioner  has  constructed  his  house  during his  service career.  He has retired from his  service.  He wants to reside in his house constructed by him during his service careers but the respondent is bent upon not to allow the petitioner  to reside in the same house which was constructed by him on expenditure of huge amount while in service.”

                                                  [Emphasis added]  

The Appellate Authority accordingly found and held:-

“…..that  the  petitioner  was  entitled  to  get possession of the rented portion of the house on account of personal necessity and the respondent was liable to be evicted  on  account  of  the  personal  necessity  of  the landlord.”

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10. The respondent-tenant filed revision before the High Court against

the order of eviction passed by the Appellate Authority.  As noted above,

the High Court allowed the revision, set aside the order passed by the

Appellate Authority and restored the order of Rent Controller.  

11. The High Court order coming under appeal before us is based on

the  premise  that  in  the  eviction  petition  filed  by  him  the  appellant-

landlord had failed to make the necessary declarations as requited under

Section 13(3)(a)(i)(b) and (c) of the Act.  In order to show the omissions

in the pleadings the High Court extracted certain paragraphs from what it

supposed to be the eviction petition filed by the appellant. Unfortunately,

the High Court committed an error of record and the extracts reproduced

in the High Court judgment are not from Rent Petition No.24/1998, from

which the revision arose but those are from a different petition filed later

by the appellant.  Learned counsel  appearing  for  the  respondent-tenant

fairly accepted that the statements quoted in the High Court judgment are

not from the eviction petition filed by the appellant and in that regard the

High Court has committed an error of record. For our satisfaction we also

referred to Rent Petition No.24 of 1998 which is a part of Annexure P-1

to the S.L.P.  On a perusal of paragraphs 5 (i) to (iv) we are satisfied that

the pleadings fully comply with the requirements of Section 13(3)(a)(i)

(b) and (c) of the Act. The High Court order is thus liable to be set aside

on this score alone.

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12. Though conceding that the High Court order suffered from a fatal

error  of  record,  learned  counsel  appearing  for  the  respondent-tenant

sought to resist the appellant’s appeal on two other grounds. The counsel

first submitted that in the year 1998 when the eviction proceeding was

instituted  the  appellant  was  very  much  in  service.   He  retired  from

service a few days after the eviction petition was dismissed by the Rent

Controller. However, the event of the appellant’s retirement from service,

arising subsequent to the dismissal of the proceeding by the first court

was never brought on record in accordance with law either by making

any amendment in the pleadings or by a petition for bringing on record

any  additional  evidence.  All  that  was  done  was  to  simply  file  the

retirement order before the Appellate Authority where it was marked as

‘X’. The Appellate Authority had, therefore, committed an error in taking

it  into  consideration  in  support  of  the  appellant’s  plea  of  personal

necessity. In support of the submission he relied upon the decisions of

this Court in (i)  Om Prakash Gupta V. Ranbir B. Goyal, (2002) 2 SCC

256 and (ii) Ram Kumar Barnwal V. Ram Lakhan, (2007) 5 SCC 660.   

13.  We are unable to accept the submission. It needs to be clarified

that the respondent-tenant does not deny the fact that the appellant retired

from  service  on  31  August,  2004.  As  a  matter  of  fact,  when  asked

pointedly, learned counsel for the Respondent was not in a position to

deny that  the appellant  had in  fact  retired from service on 31 August

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2004. He, however, contended that the fact of the appellant’s retirement

had not come before the court in accordance with law.  It is noted above

that the Appellate Authority observed that the retirement of the appellant

was an admitted fact.  It may further be noted that before the High Court

a petition under Order 41 Rule 27 was filed on behalf of the appellant-

landlord  to  produce  the  retirement  order  as  an  additional  piece  of

evidence.  The  High  Court,  however,  rejected  the  prayer  observing  as

follows:

“It  is  not  in  dispute that  the  respondent-landlord  had retired  during  the  pendency  of  the  petition  before  the Rent Controller and the learned Appellate Authority has already taken note of the subsequent event i.e. retirement of  the  landlord  and,  therefore,  the  present  application under Order 41 Rule 27 of the CPC cannot be said to be competent.   Accordingly,  the  same is  dismissed  being unnecessary.”

                                                              [Emphasis added]

14. Even before us it was admitted that the appellant had retired from

service on the date stated by him. The appellant’s retirement from service

on  the  date  as  stated  by  him  being  admitted  by  the  respondent  the

Appellate Authority was fully justified in taking that development into

consideration.  No prejudice was caused to  the  respondent  because the

appellant  did  not  make  any  formal  amendments  in  the  pleadings  or

because  the  retirement  order  filed  before  the  Authority  was  not

accompanied  with  a  formal  petition  under  Order  41  Rule  27.  The

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contention raised on behalf of the respondent is not highly technical and

it  is  calculated  only  to  frustrate  the  proceeding  coming  to  a  just-

conclusion by making it quite incidental and completely subservient to

the Court’s procedures.  We also fail to see how the two decisions relied

upon by the counsel can support the case of the respondent. We thus find

no merit in the submission.   

15. Learned counsel next submitted that the order of eviction was also

based on the growing needs of the appellant’s son but in that connection

there was no pleading as required under Section 13(3)(a)(ii) of the Act.

The provision referred by the counsel reads as follows:

“(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) xxx xxx xxx xxx

(ii) he requires if for use as an office or consulting room by his  son  who  intends  to  start  practice  as  a  lawyer, qualified  architect  or  chartered  accountant  or  as  a “registered  practitioner”  within  the  meaning  of  that expression used in the Punjab Medical Registration Act, 1916, the Punjab Ayurvedic and Unani Practitioners Act, 1963,  or  the  Punjab  Homoeopathic  Practitioners  Act, 1965, or for the residence of his son who is married :

Provided  that  such  son  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 has not vacated it without sufficient cause after the commencement of the 1949 Act.”

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16. We  are  unable  to  accept  this  submission  because  we  see  no

application of the quoted provision to the facts of this case. Section 13(3)

(a) (ii) will have application only in case the eviction is sought for the

son’s requirement  independently  and separately from the landlord.   In

this case,  the son and his wife and children are part  of the landlord’s

family and all  of them are living together.  The accommodation of the

son,  his  wife  and  their  children  is  part  of  the  landlord’s  personal

necessity. The case of the appellant clearly falls under section 13(3)(a)(i)

that  deals  with  the  situation  where  the  landlord  requires  the  tenanted

premises for his own occupation  and it does not attract section 13(3)(a)

(ii) that deals with the requirements of the son of the landlord. In taking

the view we are supported by the decision of this Court in Joginder Pal

V.  Nawal  Kishore  Behal,  (2002)  5  SCC 397.  In  paragraph 33  of  the

decision it was held and observed as follows:

“Our conclusions are crystallized as under:

(i) The  words  “for  his  own  use”  as  occurring  in Section 13(3)(a)(ii) of the East Punjab Urban Rent Restriction Act, 1949 must received a wide, liberal and useful meaning rather than a strict or narrow construction.

(ii) The expression  – landlord  requires  for  “his  own use”,  is  not  confined  in  its  meaning  to  actual physical  user  by  the  landlord  personally.   The requirement not only of the landlord himself but also of the normal “emanations” of the landlord is included therein.  All the cases and circumstances in  which  actual  physical  occupation  or  user  by someone else, would amount to occupation or user

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by  the  landlord  himself,  cannot  be  exhaustively enumerated.  It will depend on a variety of factors such  as  interrelationship  and  interdependence  – economic or otherwise, between the landlord and such  person  in  the  background  of  social,  socio- religious and local customs and obligations of the society or region to which they belong.

(iii) The  tests  to  be  applied  are:  (i)  whether  the requirement pleaded and proved may properly be regarded as the landlord’s own requirement; and, (ii) whether on the facts and in the circumstances of a given case, actual occupation and user by a person other than the landlord would be deemed by the landlord as “his own” occupation or user. The answer would,  in its turn, depend on (i)  the nature  and  degree  of  relationship  and/or dependence  between  the  landlord  pleading  the requirement  as  “his  own”  and  the  person  who would  actually  use  the  premises;  (ii)  the circumstances in which the claim arises and is put forward;  and  (iii)  the  intrinsic  tenability  of  the claim.   The  court  on  being  satisfied  of  the reasonability  and  genuineness  of  claim,  as distinguished from a mere ruse to  get  rid  of the tenant, will uphold the landlord’s claim.   

(iv)  While  casting  its  judicial  verdict,  the  court  shall adopt a practical and meaningful approach guided by the realities of life.

(v) In the present case, the requirement of the landlord of the  suit  premises  for  user  as  office  of  his  chartered accountant  son  is  the  requirement  of  landlord  “for  his own use” within the meaning of Section 13(3)(a)(ii).”   

17. For  the  reasons  discussed  above  we  find  no  merit  in  this

respondent’s pleas. Accordingly, the appeal succeeds and it is allowed.

The order of the High Court is set aside and the order of the Appellate

Authority is restored.

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18. In  the  facts  and  circumstances  of  the  case,  however,  the

respondent-tenant  is  allowed  six  months  time  to  vacate  the  tenanted

premises  on  condition  of  filing  the  usual  affidavit  before  this  Court

within four weeks from today.

   ………………………………J.     [Tarun Chatterjee]

   ……………………………..J.     [Aftab Alam]       

New Delhi, July 28,  2008.

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