A.K.Jain Vs. Prem
Kapoor  INSC 1230 (28 July 2008)
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
counsel for the parties.
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, 2 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.
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 3 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.
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.
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 4 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
rent controller did not accept the appellant's case and rejected the Eviction
Petition by order dated 26 August 2004.
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'.
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 5 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:
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
[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."
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.
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.
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.
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 8 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."
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 9 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
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.
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
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."
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:
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 11 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)."
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.
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.
Delhi, July 28, 2008.