HARNAM SINGH Vs. SURJIT SINGH

JUDGEMENT

(1.) Is the requirement of personal use and occupation by the landlord under sub-section (3)(a)(i) a distinct and separate cause of action from that of nonpayment of rent under sub-sec (2)(i) for the eviction of the tenant as prescribed by S. 13 of the East Punjab Urban Rent Restriction Act, 1949--has come to the, fore as the spinal question in this reference to the Full Bench.

(2.) Harnam Singh, the petitioner landlord had originally on the 7th of 1973 brought an application for the ejectment of the respondent-tenant on the ground of the non-payment of rent. This application was disposed of by the order Exhibit R-5. A perusal of the said order would show that therein no other ground including the one for personal use and occupation was taken by the petitioner-landlord.

(3.) Later on the 15th of April, 197l, the Petitioner-landlord preferred a fresh application on the ground inter-alia that the respondent-tenant was in arrears of rent and the premises in dispute were required by the applicant bona fide for his own use and occupation. On notice of the said application the respondent- tenant appeared and tendered in Court the amount for which he was alleged to be in arrears of rent along with interest and costs thereof which was accepted on behalf of the petitioner-landlord end the ground of ejectment for being in arrears of rent was consequently given up. The contest was thus confined to the ground of the requirement of personal use and occupation by the landlord. However a further objection was taken on behalf of the tenant that the said ground was not available to the landlord now because when he made the earlier application for ejectment the said ground was available to him and the same having not been taken then he was barred the principles of constructive res judicata The trial Court accepted the application and ordered the eviction of the respondent-tenant and the appeal directed against the same was also rejected by the appellate authority. However, on a revision preferred by the respondent- tenant,. the High Court held that all the ingredients mentioned in S. 13(3)(a)(i) of the Act were not pleaded in the petition and consequently remanded the matter to the Rent Controller with the direction to allow the amendment of the application for incorporating the ingredients of S. 13(3)(a)(i) of the Act and to decide the matter afresh after recording evidence of the parties. After compliance with the said direction, the Controller decided the matter afresh and finding that the premises were bona fide required for the personal use and occupation of the landlord and his family, and further holding that the same claim was in no way barred on principles of constructive res judicata, allowed the application and directed the eviction of the respondent-tenant. On an appeal preferred by the respondent-tenant, the appellate authoring without giving any categoric finding on issue No. 1, with regard to the bona fide requirement of the petitioner for the personal use and occupation of the premises held on issue No. 2 that the claim of the applicant was barred by the principles of Constructive res judicata since he had not taken up the said ground in the earlier application. The appeal was consequently allowed end the application dismissed.