CIVIL REVISION NO. 5667 OF 2008. ::-1-:: IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH. C.R. No. 5667 of 2008. [O&M] Date of Decision: 13th August, 2009. Manoj KumarAggarwal & Anr. Petitioners through Mr. M.L.Sarin, Sr. Advocate with Mr. Hemant Sarin, Advocate. Versus Vijay Kumar Respondent through Mr. Arun Palli, Sr. Advocate with Mr. Devanshu Jain, Advocate. CORAM: HON'BLE MR. JUSTICE SURYA KANT. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? SURYA KANT, J. This Revision Petition is directed by the petitioner-tenants against whom an eviction order under Section 13-A[1-A] of the Haryana Urban [Control of Rent & Eviction] Act, 1973 [for short 'the Act'] has been passed by the Rent Controller, Panchkula and their appeal preferred against the said order has been dismissed by the Appellate Authority, Panchkula, being not maintainable. [2]. The facts may be noticed briefly. [3]. The respondent – landlord is an ex-Air Force Personnel, who retired from the Indian Air Force in the year 1981. He thereafter joined the IDBI Bank from where he sought voluntary retirement w.e.f. 31.3.2005. The respondent – landlord is owner of a small house [measuring 6 marlas] No. 1282, Sector 4, Panchkula. The petitioner – tenant was working in INDUS Bank, Panchkula. It appears that the parties were known to each other. The respondent – CIVIL REVISION NO. 5667 OF 2008. ::-2-:: landlord while serving in the Bank, was provided official accommodation comprising Flat No. 1502, Sector 38-B, Chandigarh which he was entitled to occupy for a period of six months after retirement. As per his case, the petitioner – tenants were looking for an accommodation in Panchkula and they approached the respondent – landlord to let out his afore-stated house temporarily for a period of 4-5 months. Since the respondent – landlord was already in occupation of the official accommodation which he could retain for a period of six months, he inducted the petitioners as tenants on the first floor of his House No. 1282, Sector 4, Panchkula [for short 'the demised premises'] w.e.f. 1.4.2005. [4]. As the landlord could have retained the official accommodation up to 30.9.2005 only, he asked the petitioners to vacate the demised premises but due to their refusal the respondent- landlord sought and was granted extension by the IDBI Bank to retain the official accommodation till 31.12.2005 but subject to payment of monthly rent of Rs.5000/-. The respondent – landlord thereafter shifted to a rented accommodation, comprising first floor of House No. 1066, Sector 38-B, Chandigarh at a monthly rent of Rs.6000/-. [5]. The respondent – landlord thereafter filed the instant petition, purportedly under Section 13[1-A] of the Act, which enables a landlord who is or was a government employee or an employee of the State-owned Board/Corporation etc., to seek eviction of his tenant summarily, within one year prior to or after the date of his retirement or within one year from the date the amended provisions CIVIL REVISION NO. 5667 OF 2008. ::-3-:: of the Act came into force. [6]. Upon notice, the petitioner – tenants moved an application for 'leave to contest' on various grounds but more specifically on the ground that Section 13-A of the Act is not attracted as the respondent – landlord admittedly stood retired from the Bank on 31.3.2005, whereas the demised premises was rented out w.e.f. 1.4.2005, i.e., after his retirement. [7]. The objections raised by the petitioner – tenants prima -facie found favour with the Rent Controller, who vide order dated 12.10.2006 accepted their application for leave to contest and thereafter, vide order dated 23.10.2006, framed the following issues:- “1. Whether the respondents are liable to be ejected from the suit property as detailed in the head note of the petition on the ground of non-payment of rent as well as on the ground of personal bona-fide need?OPP 2. Whether the petition is not maintainable in the present form?OPR 3. Whether the petitioner has no locus standi to file the present petition?OPR. 4. Whether the petitioner is estopped from filing the present petition by his own act and conduct?OPR. 5. Whether the petitioner has not come to the court with clean hands?OPR. 6. Relief”. [8]. The respondent – landlord led and concluded his evidence on 12.3.2007. The petitioner – tenants got first two adjournments and then moved a transfer application which was allowed and the case was entrusted to the other Rent Controller. Thereafter, the petitioners examined one witness on 7.6.2007, three CIVIL REVISION NO. 5667 OF 2008. ::-4-:: witnesses on 2.8.2007, got adjournment on 7.9.2007 and then examined one more witness on 1.12.2007, followed by closure of their evidence on 16.1.2008. The Rent Controller finally allowed the eviction petition vide the order dated 29.7.2008 after holding that the respondent – landlord whose one son was of marriageable age at the time of filing of the eviction petition and got married during the pendency thereof and whose one unmarried daughter and a younger son, pursuing their higher studies also require separate rooms and that the ground floor of the demised premises consisting one bed- room only was wholly insufficient and, thus, he has a bona-fide personal necessity for the premises. [9]. The petitioners preferred an appeal under Section 15 of the Act which has been rejected by the Appellate Authority after holding that in view of Section 13A[8], no appeal is maintainable against an order of eviction passed under Section 13[1-A] of the Act. Aggrieved, the tenants have approached this Court. [10]. I have heard learned counsel for the parties at some length and perused the records of the courts below. [11] There are two basic issues which arise for consideration of this Court. Firstly, can a landlord who rents out the premises after his retirement seek eviction of the tenant summarily by invoking Section 13-A of the Act? and what is the de-facto or de-jure distinction that can be drawn in an 'ordinary eviction petition' filed under Section 13 or in a petition filed under Section 13A of the Act in which leave to contest is granted? [12]. Section 13-A[1A] of the Act reads as follows:- CIVIL REVISION NO. 5667 OF 2008. ::-5-:: “Where an application is made by a landlord who is or was an employee of Government of India or of Government of Haryana or of any State owned Board or Corporation of Haryana within one year prior to or after the date of his retirement or within one year from the date of commencement of Haryana Urban [Control of Rent and Eviction] Amendment Act, 1990, whichever is later, on the ground mentioned in sub-clause [i] of clause [a] of sub-section [3] of Section 13, the same shall be dealt with in accordance with the procedure specified in this section”. [13]. As may be seen, the afore-stated provision pre-supposes that an employee of the Government or the State-owned Board/ Corporation, who is a 'landlord' can seek eviction of his tenant summarily subject to satisfaction of the other provided conditions. The provision confers a right to seek eviction of the tenant through summary procedure with specific reference to the date of retirement of the landlord, provided that the relationship of landlord and tenant exists at least a year prior to the date of retirement of the landlord and then only he can invoke the summary jurisdiction of the Rent Controller under Section 13-A of the Act. Reference can be made to the decisions of the Hon'ble Supreme Court in [i] Dr. D.M.Malhotra v Kartar Singh, 1988[1] SCC,456; and [ii] J.D.Hingorani v Ashok Kharbanda & Anr., 1995 Supp.[3] SCC, 185, as well as of this Court in [i]Risaldar Surjit Singh v T.N.Sood, 1987 HRR, 110; [ii] Jawand Singh Bhatia v Narinder Singh & Ors., 2003 PLR, 730; [iii] Joginder Singh Bajwa v Kuldip Singh, 1991 PLR, 672 and [iv] Ravinder Kumar v Nauhria Ram, 1993[1] RCR, 312. [14]. In the case in hand, the respondent – landlord admittedly CIVIL REVISION NO. 5667 OF 2008. ::-6-:: stood retired from the service of the Bank on 31.03.2005. There was no relationship of landlord and tenant between the parties as on 31.03.2005 for the reason that the petitioners were un-disputably inducted as tenant[s] on the next day, i.e., 01.04.2005. In my considered view, the respondent – landlord did not fall within the special category of 'landlords' taken care of by Section 13-A of the Act and he was not entitled to invoke the summary procedure of eviction contemplated by that provision. [15]. The controversy, however, does not rest here. There is indeed no quarrel that the respondent, like any other landlord, could file an eviction petition under Section 13 of the Act to seek the petitioner's eviction on one of the permissible grounds, namely, that the demised premises is required by him for his own use and occupation which, in the light of catena of judgments, includes the requirement of the landlord's own children and other family members. [16]. Sub-sections [4] and [5] of Section 13-A have some bearing on the controversy and read as follows:- [4] The tenant on whom the summons is duly served [whether in the ordinary way or by registered post] shall not contest the prayer for eviction from the residential building unless he files an affidavit stating the grounds on which he seeks to contest the application for eviction and obtains leave from the Controller as hereinafter provided; and in default of his appearance in pursuance of the summons or his obtaining such leave, the statement made by the landlord in the application for eviction shall be deemed to be admitted by the tenant and the applicant shall be entitled to an order for eviction on the ground aforesaid. CIVIL REVISION NO. 5667 OF 2008. ::-7-:: [5] The Controller shall given to the tenant leave to contest the application if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the residential building on the ground specified in sub-clause [i] of clause [a] of sub-section [3] of section 13”. [17]. When leave to contest is granted to the tenant, the Rent Controller shall commence the hearing of the application as early as practicable and shall follow the practice and procedure of a Court of Small Causes including the recording of evidence. Sub-Section [8] provides that no appeal or second appeal shall lie against an order for the recovery of possession of any residential building made by the Controller in accordance with the procedure specified under Section 13-A of the Act. [18]. The legislative scheme behind Section 13-A of the Act, thus, unambiguously provides that if a landlord falls within the specified category of sub-section [1] or [1-A], he can seek eviction of his tenant from the residential premises by way of a summary procedure. The only protection given to a tenant is to seek leave to contest and once such leave has been granted, the “procedure for disposal of the application for eviction shall be the same as the procedure for disposal of the applications by the Controller”. [19]. It would be relevant at this stage to refer that Section 13 of the Act enables every landlord to seek eviction of his tenant on the 'specified grounds' including that he requires the demised premises for his own use and occupation, namely, bona-fide personal necessity. If one reads Section 13A[10] in conjunction with other CIVIL REVISION NO. 5667 OF 2008. ::-8-:: provisions of the Act, it is inescapable but to hold that wherever a tenant is declined leave to contest, he can be evicted by way of a summary procedure which does not contemplate the 'framing of issues' or 'leading of evidence' by the respective parties. However, when the Rent Controller finds that the tenant has raised triable issues and grants him leave to contest, in that event the application for eviction is required to be disposed of by following the same procedure as is to be followed by the Rent Controller while deciding other eviction applications under the Act. [20]. In the instant case, it is an admitted fact that the petitioner – tenant[s] made out a triable case; were granted leave to contest and then got as many as seven opportunities to lead evidence like any other ordinary tenant can be granted in an eviction petition filed against him under Section 13 of the Act. The action of the Rent Controller in granting more than sufficient opportunities to the petitioner to lead his evidence is consistent with the import of sub- Section [1] of Section 13-A which demands that the procedure contemplated in the post-leave to contest cases, be followed. [21]. An erroneous nomenclature of a petition or reference to a wrong provision of law would per-se not vitiate the proceedings, if otherwise conducted as per the procedure prescribed by the law. Though the eviction petition filed by the respondent is purportedly under Section 13[1-A] of the Act, nevertheless the Rent Controller treated it and followed the same procedure as has been prescribed for deciding an eviction petition under Section 13 of the Act. Further, while returning the findings on the issues framed, the Rent Controller CIVIL REVISION NO. 5667 OF 2008. ::-9-:: has guided itself by the statutory ingredients of Section 13 of the Act, to be satisfied while accepting a landlord's application for eviction on the ground of personal necessity. The Rent Controller has formed his view point after discussing each and every piece of evidence led by the parties and thereafter only has concluded that the respondent – landlord has bona-fide personal necessity of the demised premises as he needs more than one bed-room for his [i] a married son; [ii] a young unmarried daughter and [iii] younger unmarried son and for that purpose, the ground floor accommodation consisting of one bed- room in a six marla house besides living room, kitchen etc. was wholly insufficient. In other words, the impugned eviction order, though descripted under Section 13[1A], in fact, has been passed under Section 13 of the Act only. [22]. That being so, a further question arises as to whether a tenant like the petitioner who has been ordered to be evicted, can be deprived of his right to statutory appeal provided under Section 15 of the Act? In my considered view, an erroneous reference to a provision of law by the Rent Controller can not take away the substantive right to appeal provided to a tenant, if ordered to be evicted under Section 13 of the Act. Consequently, notwithstanding the nomenclature of the order passed by the Rent Controller in the instant case, the petitioners have a right to appeal before the Appellate Authority under Section 15 of the Act. I order accordingly. [23]. As a result of the above discussion, it is held that the impugned order dated 29.07.2008 passed by the Rent Controller, Panchkula, is in fact an order passed under Section 13 of the Act CIVIL REVISION NO. 5667 OF 2008. ::-10-:: which is appealable under Section 15 of the Act. The order of the Appellate Authority, Panchkula, therefore, in holding that the impugned order being under Section 13[1A] of the Act, the first appeal is barred by Section 13A[8] of the Act can not sustain and is hereby set aside. It is held and accordingly directed that the eviction order being under Section 13 of the Act, the appeal preferred by the petitioner – tenants be decided afresh and on merits. [24] The observations made here-in-above in respect of the findings given by the Rent Controller, are for the limited purpose of deciding revision petition and shall not be taken as approval of such findings. The Appellate Authority shall decide the appeal on merits and uninfluenced of these tentative observations. [25]. The parties are directed to appear before the Appellate Authority, Panchkula on 1st September, 2009. [26]. Having regard to the fact that the eviction has been sought on the ground of personal necessity, the Appellate Authority is directed to decide the appeal within a period of three months from the date the parties put in appearance. August 13, 2009. ( SURYA KANT ) dinesh JUDGE