- (1.) The tenant-petitioners have filed this revision petition against the order of the Appellate Authority, Rohtak, dated 7th May, 1976, whereby their appeal was dismissed and the order of the Rent Controller directing their ejectment, was maintained. Harish Chander, Advocate-landlord brought an eviction petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the Act), against the tenants for eviction from the premises taken on rent by them which consist of both residential and as well as non-resident, situated in Bahadurgarh, on various grounds, including that the premises were required for his personal use and occupation and also for the residence and office of his son who is an advocate. All the allegations were controverted by the tenants and on the pleadings of the parties, the Rent Controller framed issues :- 1. Whether the respondents are liable to ejectment on the grounds mentioned in the application 2. Whether a legal notice was served on the respondents If so, to what effect 3. Whether there has been previous litigation between the parties regarding the demised premises. If so, what is its effect 4. Whether the present application is not maintainable against the present respondents It was found by the Rent Controller that the tenants were liable to be evicted on the ground of the bonafide requirement of the landlord; while holding that other grounds of ejectment were not proved. Consequently an order for eviction was passed. On appeal, it was contended that the tenants were not liable to be evicted on the ground of personal requirement of the premises by the landlord as he had failed to mention in the petition the necessary ingredients of eviction on that ground as required by Section 13(13)(a)(i) and clauses (b) and (c) of the Act. However, the finding of the Rent Controller on merits about the bona-fide necessity for occupation of the premises by the landlord, including his son, was not assailed, as it has been observed in the order, that "The learned counsel for the appellants did not assail before me the finding on merits about the bonafide necessity for occupation of the premises in dispute by the landlord-respondent including his son and by occupying of one room in the upper story the landlord-respondent cannot be said to be occupying another residential building as required under clause (b) of Section 13(3)(a)(i)". It has been again observed subsequently that "His personal requirement of the premises in dispute found by the Rent Controller, which finds has not been assailed before me on merits, is established." On the ground whether ingredients to Section 13(3)(a)(i), i.e. clauses (b) and (c) were pleaded or not or whether there was any findings to that effect on the record, it has been observed by the Appellate Authority, that "Thus on the assertion made in the written statement of the appellants pleading the requirement of clause (b) and (c) of Section 13(3)(a)(i) and their denial by the landlord-respondent it can be said that the conditions (b) and (c) were pleaded specifically. Satish Chander (A.W.1) stated that there was only one room lying vacant and not there as alleged by the appellants in the premises in dispute to which he had simply hung his name and that this room was altogether insufficient for his office and residence. Harish Chander Advocate landlord respondent swore that there was no other property in Bahadurgarh except that of one room on the first floor of the disputed property a verandah in his possession which too were insufficient for two lawyers, i.e. himself and his son and eight members of his family. He also stated that he had restored the possession of the rear portion of the first floor to the tenants in 1962. Thus there is both pleadings and proof by evidence in regard to conditions (b) and (c) or Section 13(3)(a)(i) of the Rent Restriction Act in the case in hand. The parties went to trial begin aware of the nature and extent of controversy between them. The appellants cannot be said to have been taken by surprise or prejudiced in any manner even if it is taken that there was omission in the pleadings of the ingredients of conditions (b) and (c) of Section 13(3)(a)(i). The evidence of these conditions was produced without objects from either side and hence the absence of specific pleadings cannot be fatal". With these observations and having maintained the finding of the Rent Controller, the appeal as consequently dismissed. Feeling aggrieved against this concurrent finding of the two authorities, the tenants have come up in revision to this court.
(2.) At the time of admission of the civil revision, it was contended that the law point has been referred to Full Bench in civil Revision No. 392 of 1974 (Banke Ram v. Shrimati Sarasvati Devi, 1977 1 RCR(Rent) 595 and, consequently, this petition was admitted. Now the Full Bench has decided the said civil revision on 17th December, 1976.
(3.) The learned counsel for the petitioners vehemently contended that in view of the Full Bench Judgment, the necessary ingredients of sub clauses (b) and (c) of Section 13(3)(a)(i) have not been pleaded and therefore, the application as liable to be dismissed on that ground alone. In any case, according to the learned counsel, ingredient (c) that the landlord has not vacated such a building without sufficient cause after the commencement of this Act in the said urban area, has not been pleaded, particularly so, when there is evidence on the record that in the year 1962, the landlord has vacated the premises in dispute and again rented it out to the tenant-petitioners.;